Tzung Shian Wu v Hachioji Pty Ltd

[2025] FWC 89

[2025] FWC 89

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tzung Shian Wu
v

Hachioji Pty Ltd

(U2024/11672)

DEPUTY PRESIDENT BEAUMONT PERTH, 10 JANUARY 2025

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

1. On 1 October 2024, Mr Tzung Shian Wu made an unfair dismissal application (the 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 Mr Wu’s application has no reasonable prospects of success and should be dismissed.

1. Mr Wu indicated in his Application that he commenced employment with Hachioji Pty Ltd on 4 April 2024 and that his dismissal took effect on 7 September 2024. On the information provided by Mr Wu, he was employed for approximately five and half months.

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 have tried to contact Mr Wu on the following dates:

·   3 October 2024 by telephone, SMS and email; and

·   16 October 2024 by telephone.

1. Commission staff sought further information from Mr Wu about whether he had served the minimum employment period.

1. Mr Wu responded on 15 October 2024, however the information he provided did not assist him in substantiating that the minimum employment period had been met.

1. Mr Wu has been on notice of the likely consequences if he does not provide further information that supports his eligibility to make the application.

1. To date Mr Wu has not provided any further information that supports his eligibility to make the Application.

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 Mr Wu’s dismissal until it is satisfied that he is eligible to make an unfair dismissal application.

1. The information provided by Mr Wu in his Application indicates that he is not eligible to make an unfair dismissal application because that he does not appear to have served the minimum employment period.

1. Mr Wu was invited to provide information that could show that he had in fact completed the minimum employment period. Mr Wu did not provide any response that was 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 29 November 2024, Mr Wu was also specifically invited to provide submissions on why his matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). No response was received.

1. I am satisfied that Mr Wu 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. For these reasons I am satisfied that the Application has no reasonable prospect of success within the meaning of s.587(1)(c), 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).

1. I have separately made an order dismissing the application (PR783156).

DEPUTY PRESIDENT

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<PR783155>