Sherrie Kamire v Hendrickson Asia Pacific Pty Ltd

[2025] FWC 1674

[2025] FWC 1674

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Sherrie Kamire
v

Hendrickson Asia Pacific Pty Ltd

(U2025/3394)

DEPUTY PRESIDENT EASTON SYDNEY, 17 JUNE 2025

Application for an unfair dismissal remedy remedy – minimum employment period – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 20 March 2025, Mrs Sherrie Kamire made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the following reasons I am satisfied that Mrs Kamire’s application has no reasonable prospects of success and should be dismissed.

1. Mrs Kamire indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Hendrickson Asia Pacific Pty Ltd on 2 December 2024 and that her dismissal took effect on 6 March 2025. On the information provided by Mrs Kamire, she was employed for 3 months and 4 days.

1. Sections 382 and 383 of the Act provide that a person is only eligible to make an unfair dismissal application if they have completed a minimum period of employment before their dismissal. Section 383 defines the minimum employment period to be either 6 months or 12 months, depending on whether the respondent was a small business employer at the time of the dismissal. On the information provided by Mrs Kamire the period of employment was less than 6 months.

1. Commission staff attempted to contact Mrs Kamire on 25 March, 27 March, 16 April, 17 April, 22 April, 12 May, 29 May, 30 May, 2 June and 3 June 2025 by telephone, SMS and email regarding the Minimum Employment Period.

1. On 12 May 2025 my chambers wrote to the Mrs Kamire to give her the option to discontinue or provide a submission as to how her claim could continue.

1. Mrs Kamire responded and confirmed that she was employed less than 6 months and included complaints about her former employer. In a further response on 30 May 2025, Mrs Kamire made an assertion that “I have sought legal advice and advice received is that the application can get considered under general protection for unfair treatment in termination for discrimination, being segregated with no support” and “I respectfully ask that the general protections for the unfair dismissal be considered as I won’t be withdrawing this unless Hendrickson fixes the situation they created.” 

1. The Applicant has chosen not to discontinue her Unfair Dismissal application.

1. A General Protections involving dismissal is a separate application that the Applicant may or may not be entitled to make.

1. The Full Bench in Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 found that it is not possible to amend an unfair dismissal application to convert it to a general protections because to do so “fundamentally changes the kind of application that was originally made … and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application” (at [17]).

Section 587 – General Principles

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application.

1. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond)). An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success. As such the power under s.587 is not available if there are disputed facts that could affect the outcome of the proceedings.

1. Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

Does Kamire’s unfair dismissal application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Mrs Kamire’s dismissal until it is clear that she is eligible to make an unfair dismissal claim.

1. The information provided by Mrs Kamire on her Form F2 application strongly indicates that she is not eligible to make an unfair dismissal application because she does not appear to have served the minimum employment period.

1. Mrs Kamire had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However Mrs Kamire has not provided any information that is consistent with her having done so. Mrs Kamire has also had the opportunity to put her case for consideration on all matters material to the decision to dismiss the application under s.587 (see Bond at [15]-[16]).

1. I am satisfied that Mrs Kamire’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss her application on the Commission’s own initiative using the facility available in s.587(3)(a). I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Sherrie Kamire on 20 March 2025 is dismissed.

DEPUTY PRESIDENT

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