Ms Cody Scicluna v Capture Recruitment Pty Ltd

[2025] FWC 2061

[2025] FWC 2061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Cody Scicluna
v

Capture Recruitment Pty Ltd

(U2025/9595)

DEPUTY PRESIDENT O'NEILL MELBOURNE, 17 JULY 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 5 June 2025, Ms Cody Scicluna made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

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

1. Ms Scicluna stated in her application that she commenced employment with Capture Recruitment Pty Ltd on 2 December 2024 and that her dismissal took effect on 25 May 2025.

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 Ms Scicluna, her period of employment was less than 6 months.

1. Commission staff attempted to contact Ms Scicluna on 12 June and again on 26 June by telephone regarding the minimum employment period issue with her application. On both occasions, Ms Scicluna did not answer the calls and voicemails were left. An email was also sent by the Commission to Ms Scicluna on 12 June, advising that:

On 05 June 2025, we received your application saying you were unfairly dismissed by Capture Recruitment Pty Ltd.

The information in your application shows that you might not have worked for the minimum employment period.

The minimum employment period is the amount of time you must have worked for your employer before you can make an unfair dismissal application. There is more information on the next page.

·You told us that you were employed on 2 Dec 2025.

·You told us you were given notice of your dismissal on 25 May 2025

To continue with your case, you need to show that you worked for the minimum employment period.

The deadline for providing this information is 26 June 2025.

If we don’t hear from you by then, it’s very likely your case will be dismissed without further notice.

1. No response to any of the calls, voicemails or the email sent has been received by the Commission from Ms Scicluna.

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.[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.

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

Does Ms Scicluna’s application have any reasonable prospects of success?

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

1. The information provided by Ms Scicluna indicates that she is not eligible to make an unfair dismissal application because she was employed for less than six months.

1. I am satisfied that Ms Scicluna’s claim has no reasonable prospect of success and that it is appropriate to dismiss her application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Cody Scicluna on 5 May 2025 is dismissed.

DEPUTY PRESIDENT

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

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