Brodie Nicklason v Sydney Tools Pty Ltd Summary

[2025] FWC 2769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brodie Nicklason
v

Sydney Tools Pty Ltd

(U2025/12207)

DEPUTY PRESIDENT BELL

MELBOURNE, 17 SEPTEMBER 2025

Application for an unfair dismissal remedy

On 25 July 2025, Mr Brodie Nicklason made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

Mr Nicklason stated in his application that he commenced employment with Sydney Tools Pty Ltd on 7 July 2025 and that his dismissal took effect on 25 July 2025.

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 Mr Nicklason, his period of employment was less than 6 months.

Commission staff attempted to contact Mr Nicklason on 1 August 2025 by telephone and SMS text message regarding the minimum employment period and on seeking legal advice.

On 1 August 2025, Commission staff emailed Mr Nicklason informing him that he had not served the applicable minimum employment period based on the information that he had provided. The email directed Mr Nicklason to file evidence to show that he had served the minimum employment period. That correspondence also warned Mr Nicklason that if he did not contact the Commission within 14 days, his application may be dismissed without further notice.

On 3 September 2025, a final attempt to contact Mr Nicklason was made by email, which required a response by 10 September 2025.

Mr Nicklason has not responded to the Commission’s multiple attempts to contact him in relation to his Form F2 application.

Section 587 – General Principles

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.

The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law.[1] An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success and the power under s.587 is not available if there are disputed facts that could affect the outcome of the proceedings.

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

Does Nicklason’s application have any reasonable prospects of success?

The Commission cannot consider the fairness of Mr Nicklason’s dismissal until it is clear that he is eligible to make an unfair dismissal claim.

The information provided by Mr Nicklason indicates that he is not eligible to make an unfair dismissal application because he was employed for less than six months.

I am satisfied that Mr Nicklason’s claim has no reasonable prospect of success and that it is appropriate to dismiss his application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Brodie Nicklason on 25 July 2025 is dismissed.

DEPUTY PRESIDENT

[1] See generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16].

Printed by authority of the Commonwealth Government Printer

In the case of Brodie Nicklason v Sydney Tools Pty Ltd, Mr Brodie Nicklason lodged an unfair dismissal application under s.394 of the Fair Work Act 2009, alleging that his dismissal by Sydney Tools Pty Ltd on 25 July 2025 was unjust. Mr Nicklason claimed to have commenced employment with the company on 7 July 2025, but the Fair Work Commission determined that the duration of his employment was less than the minimum period required to be eligible for an unfair dismissal application. This case specifically concerns the eligibility criteria for such applications, which are outlined in sections 382 and 383 of the Act.

The central legal issue before the Fair Work Commission was whether Mr Nicklason’s application for unfair dismissal had any reasonable prospects of success. The eligibility criteria under the Fair Work Act require an employee to have completed a minimum period of employment before being able to lodge an unfair dismissal application. Given that Mr Nicklason’s employment period was less than six months, the Commission had to determine whether he met the eligibility criteria. The Commission also had to consider whether it was appropriate to dismiss the application under section 587 of the Act if there was no reasonable prospect of success.

The Fair Work Commission, under Deputy President Bell, concluded that Mr Nicklason’s application had no reasonable prospects of success. The Commission noted that Mr Nicklason did not respond to multiple attempts to contact him regarding his eligibility. Furthermore, the Commission highlighted that the applicant must be given a fair opportunity to demonstrate the prospects of their application. However, based on the information provided and the lack of response to inquiries, the Commission found that Mr Nicklason did not meet the eligibility requirements for an unfair dismissal application. Consequently, the application was dismissed.

The Fair Work Commission ordered that the unfair dismissal application made by Mr Brodie Nicklason on 25 July 2025 be dismissed. This decision underscores the importance of meeting the eligibility criteria for unfair dismissal applications and the necessity for applicants to provide adequate evidence of their employment period.

Brodie Nicklason v Sydney Tools Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established