Timothy Louden v Loftus Contracting Pty Ltd

[2025] FWC 1230

[2025] FWC 1230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Timothy Louden
v

Loftus Contracting Pty Ltd

(U2025/1622)

DEPUTY PRESIDENT BEAUMONT PERTH, 1 MAY 2025

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

1. On 12 February 2025, Mr Timothy Louden (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow, I am satisfied that the Application has no reasonable prospects of success and should be dismissed.

1. The Applicant indicated in his application that he commenced employment with Loftus Contracting Pty Ltd (the Respondent) on 16 September 2024 and that his dismissal took effect on 7 February 2025.  On the information provided by Mr Louden, he was employed for four months, three weeks and one day.

1. Sections 382 and 383 of the Act provide that a person can only make an unfair dismissal application if they had completed a minimum period of employment before dismissal. Section 383 of the Act defines the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

1. Commission staff tried to contact the Applicant on the following dates:

·21 February 2025 by telephone and SMS;

·14 March 2025 by telephone;

·3 April 2025 by telephone, email and SMS; and

·17 April 2025 by email and SMS.

1. Commission staff sought further information from the Applicant about whether he had served the minimum employment period with the Respondent.

1. The Applicant responded to Chambers’ email dated 17 April 2025 that same day as follows:

Hi, sorry about the late reply. Prior to that term of employment I have also had worked at Loftus between the dates of 20th November 202331st of may 2024. I had left the company then returned for the time that you are aware of. When I started back there again I went back on without any probation. Does this have any relevance.

1. Chambers replied by email on 22 April 2025 providing information from the Commission’s Unfair Dismissals Benchbook.  Chambers noted that it was not clear why the period of earlier employment referred to in the Applicant’s email dated 17 April 2025 should form part of the minimum employment period.  Directions were provided to the Applicant as follows:

You are directed to address the following by 4:00pm on Thursday, 24 April 2025:

1.   the basis (with supporting evidence) upon which you say that you have completed the minimum employment period; OR

2. any submission you would like to make as to why the Deputy President should not dismiss your application under s.587.

…

Strict compliance with the directions is required. Non-compliance with the directions can result in the dismissal of your application without further notice to you.

1. The Applicant has been on notice since at least 3 April 2025 of the likely consequences if he does not provide further information that supports his assertion that he is protected from unfair dismissal.

1. To date, the Applicant has not provided any further information that supports his assertion that he has met the minimum employment period. 

Section 587

1. The relevant provisions in s 587 of the Act are as follows:

587  Dismissing applications

(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(3) The FWC may dismiss an application:

(a)on its own initiative; or

(b) on application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s 587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s 587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond) and the cases cited therein).

Reasonable prospects of success

1. The Commission cannot consider the fairness of the Applicant’s dismissal until it is satisfied that he is protected from unfair dismissal. 

1. The information provided in the application indicates that the Applicant does not appear to have served the minimum employment period.

1. The Applicant was invited to provide information that could show that he had in fact completed the minimum employment period.  The information provided by the Applicant was not, on its face, consistent with having served the minimum employment period, nor did any response raise the potential for any dispute about facts that could change the outcome of his application.

1. On 22 April 2025, the Applicant was also specifically invited to provide submissions on why his application should not be dismissed under ss 587(1)(a) or 587(1)(c). No response was received.

1. I am satisfied that the Applicant has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s 587 (see Bond at [15]-[16]).

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

1. The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Timothy Louden on 12 February 2025 is dismissed.

DEPUTY PRESIDENT

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