Ms Trinity Castillo v G8 Education Limited

[2025] FWC 1082

[2025] FWC 1082

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394 - Unfair dismissal

Ms Trinity Castillo
v

G8 Education Limited

(U2025/1974)

DEPUTY PRESIDENT BEAUMONT PERTH, 16 APRIL 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 20 February 2025, Ms Trinity Castillo (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 following reasons, I am satisfied that the Applicant’s unfair dismissal application has no reasonable prospects of success and should be dismissed.

1. The Applicant indicated in her application that she commenced employment with G8 Education Limited (the Respondent) ‘in September’, and that her dismissal took effect on 31 January 2025.  Assuming the Applicant was referring to her employment having commenced in September 2024, as the Applicant appears to have implied in a 25 February 2025 telephone conversation with Commission staff; she was employed for 4-5 months.

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 the Applicant, the period of employment appears to have been less than 6 months.

1. Commission staff attempted to contact the Applicant regarding the minimum employment period issue on the following dates:

·     25 February 2025 by telephone;

·     26 February 2025 by email; telephone and SMS;

·     13 March 2025 by telephone;

·     27 March 2025 by email and SMS; and

·     11 April 2025 by email and SMS. 

1. The Applicant has been on notice since 26 February 2025 of the likely consequences for her application should she fail to address the minimum employment period issue.  Further, in emails from Chambers dated 27 March and 11 April 2025, the Applicant was directed to address the minimum employment period issue or make any submissions she wished to make as to why the application should not be dismissed by 7 April and 14 April 2025 respectively.

Section 587 – General Principles

1. Section 587 of the Act 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 the Applicant’s application have any reasonable prospects of success?

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

1. The information provided by the Applicant on her 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. The Applicant had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However, the Applicant has not provided any information that is consistent with her having done so. The Applicant 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 of the Act (see Bond at [15]-[16]).

1. I am satisfied that Applicant’s claim 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 using the facility available under s 587(3)(a). I make the following order:

A.The application under s 394 of the Fair Work Act 2009 (Cth) made by Ms Trinity Castillo on 20 February 2025 is dismissed.

DEPUTY PRESIDENT

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