Stephanie Nicolaou v Star Anise Organic Wholefoods (Aust) Pty Ltd Summary

[2025] FWC 2733

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Stephanie Nicolaou
v

Star Anise Organic Wholefoods (Aust) Pty Ltd

(U2025/9550)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 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.

On 5 June 2025, Ms Stephanie Nicolaou made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

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

Ms Nicolaou indicated in her Form F2 Unfair Dismissal Application that she commenced employment with Star Anise Organic Wholefoods (Aust) Pty Ltd on 14 April 2025 and that her dismissal took effect on 4 June 2025. On the information provided by Ms Nicolaou, she was employed for 1 month and 3 weeks.

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 Nicolaou the period of employment was less than 6 months.

Commission staff attempted to contact Ms Nicolaou on 12 June, 27 June and 29 June 2025 by telephone, SMS and email regarding the Minimum Employment Period.

Ms Nicolaou responded on 4 July 2025 and confirmed her dates of employment. Ms Nicolaou did not provide any further information that supports her eligibility to make the 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 (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.

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

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

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

The information provided by Ms Nicolaou on her Form F2 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.

Ms Nicolaou had the opportunity to provide information that could show that she had in fact completed the minimum employment period. However Ms Nicolaou has not provided any information that is consistent with her having done so. Ms Nicolaou 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 (see Bond at [15]-[16]).

I am satisfied that Ms Nicolaou’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss her application on the Commission’s own initiative using the facility available in 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 Stephanie Nicolaou on 5 June 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dismissed an unfair dismissal application brought by Ms Stephanie Nicolaou against Star Anise Organic Wholefoods (Aust) Pty Ltd. Ms Nicolaou, who claimed to have been dismissed on 4 June 2025, asserted that she had been employed by the respondent since 14 April 2025. This indicated she had been employed for a period of 1 month and 3 weeks, well short of the minimum employment period required to lodge an unfair dismissal claim. The Commission dismissed the application on the basis that Ms Nicolaou's employment period did not meet the statutory minimum of either six or twelve months, depending on whether the employer was classified as a small business.

The primary legal issue the Commission had to address was whether Ms Nicolaou's application had any reasonable prospects of success, given her apparent non-compliance with the minimum employment period stipulated by the Fair Work Act 2009. The Commission considered the statutory prerequisites for filing such an application and whether Ms Nicolaou met the eligibility criteria. Additionally, the Commission examined whether it was appropriate to dismiss the application on its own initiative under section 587(1)(c) of the Act, considering the absence of any reasonable prospects of success and the need to avoid protracted proceedings when the outcome is evident.

In dismissing the application, the Commission noted that Ms Nicolaou had multiple opportunities to demonstrate her eligibility by providing evidence that she had completed the required minimum employment period. However, she failed to furnish any such evidence. The Commission concluded that since the information Ms Nicolaou provided strongly suggested that she did not meet the eligibility criteria, and since she had not presented any arguments or evidence to the contrary, her application had no reasonable prospects of success. Consequently, the Commission exercised its discretion under section 587 to dismiss the application on its own initiative.

The Fair Work Commission ordered that Ms Stephanie Nicolaou's application for unfair dismissal made under section 394 of the Fair Work Act 2009 on 5 June 2025 be dismissed. The decision was based on the finding that Ms Nicolaou did not satisfy the minimum employment period requirement and had no reasonable prospects of success in her application. The Commission highlighted that the dismissal was made in accordance with section 587(1)(c) to avoid unnecessary proceedings.

Stephanie Nicolaou v Star Anise Organic Wholefoods (Aust) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established