s.394 - Unfair dismissal

Application for an unfair dismissal remedy - applicant's failure to communicate with Commission and/or comply with directions wholly unacceptable, unexplained and unsatisfactory - application dismissed

• [1] On 15 April 2025, Mr Adrian Fisher (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is B.S Lewis & A.M Taylor (Respondent).

• [2] Directions [2] and [3] of the Directions issued on 29 May 2025 read:

"[2] By 4.00pm AEST on Thursday, 5 June 2025, the Applicant is to either:

1. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

1. file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant's out of time application.

[3] Should the Applicant fail to comply with Direction 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant."

• [3] The Applicant did not comply with Direction [2].

• [4] On 6 June 2025, at 12:05pm AEST, the following email (Show Cause Email) was sent to the Applicant's legal representative, and the Applicant was copied in:

Re: U2025/4644 - Mr Adrian Fisher v B.S Lewis & A.M Taylor

On 29 May 2025, the Fair Work Commission issued the attached Directions in this matter.

Direction [2] of those directions read as follows:

[2] By 4.00pm AEST on Thursday, 5 June 2025, the Applicant is to either:

1. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

b. file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant's out of time application.

To date, Chambers has not received any materials in compliance with Direction [2].

In view of the foregoing, the Deputy President directs as follows:

[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, Friday 6 June 2025.

[2] If the Applicant does not comply with Direction [1] above, or if the Deputy President is not satisfied by the Applicant's submissions, the matter may be dismissed without further notice.

• [5] On 6 June 2025 at approximately 12:14pm AEST, my Associate called the Applicant's legal representative, and no response was received. A voicemail was left for the Applicant's representative alerting them to the Show Cause Email being sent, reiterating its contents, and advising that they should call Chambers if they had any questions or concerns.

• [6] On 6 June 2025, at 3:25pm AEST, the Applicant's representative emailed Chambers filing a Form F54 Notice of Ceasing to Act. At 5:26pm, the Applicant's former representative resent the Form F54 to Chambers and stated in their email that they "did not have instruction [sic] to lodge the submissions".
• [7] On 11 June 2025, at approximately 3:44pm AEST, my Associate called the Applicant directly, and no response was received. A voicemail was left for the Applicant (Voicemail), wherein the non-compliance with the Directions and Show Cause Email was reiterated, the Applicant was reminded that the Directions still apply even if his lawyers have ceased to act for him, and foreshadowing that Chambers was about to send him an email giving him 24 hours to file his materials alongside submissions regarding his non-compliance with the Directions. The Applicant was advised to keep an eye out for this email as it was important.

• [8] On 11 June 2025, at 5:09PM, the following email was sent to the Applicant (Final Email):

Chambers notes that, per the Directions issued in this matter on 29 May 2025 (attached), you were due to file and serve your materials in this matter in respect of the out of time jurisdictional hearing by no later than 4pm on Thursday, 5 June 2025. You did not do so by this deadline.

On Friday, 6 June 2025 at 12:06pm, Chambers sent an email noting that you had not filed any materials and were non-compliant with the Directions. You were directed to file and serve your materials by 4pm that day (6 June 2025), alongside submissions regarding your non-compliance with the Directions. You were warned in this email that your case may be dismissed should you failed to follow this Direction. To date, you have failed to file any materials, nor any submissions in relation to non-compliance.

Your legal representatives filed a Form F54 Notice of Ceasing to Act on Friday 6 June 2025. They noted in their email that they had no instructions to file any submissions in the matter. I note that not having legal representation does not mean that the Directions do not apply - you are expected to comply with the Directions regardless (or you should at least communicate with Chambers in advance of that deadline if you have grounds to seek an extension for same).

To date, you have not complied with any Directions issued by Chambers, nor have you attempted in any way to communicate with Chambers to explain why you have not done so. This is wholly unacceptable.

Chambers attempted to contact you by telephone today (at 3:44pm) and received no response. A voicemail was left explaining your non-compliance, noting that the Directions apply regardless of legal representation, and foreshadowing this email. No call back has been received as at the time of this email.

In light of the above, the Deputy President will afford you until 5pm tomorrow, Thursday 12 June 2025, to file and serve your materials in accordance with the Directions, and to file and serve submissions in relation to your non-compliance with the Directions. Please note this is a strict deadline, and a failure to file by the above deadline is likely to result in your matter being dismissed without further notice.

• [9] The Applicant did not comply with the Direction in the Final Email, nor did he respond to the Final Email either by reply email or by way of an attempt to telephone Chambers.

(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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [11] In Matthrew Priestley v Blackfisch Films Pty Ltd[1] (Priestley) and Ms Meiyun Xue v Serco Australia Pty Limited[2] (Xue), the Commission held that:

a) the mere fact of non-compliance with a direction is not to be regarded as, in and of itself, sufficient to dismiss an application;

b) the fact that a person may be active on social media, and/or be presumed to have access to free publicly available wi-fi in shopping malls, food courts and other public places (including libraries and fast-food restaurant venues), will not diminish an assertion by such person that they did not receive email communications from the Commission, or were unable to respond via telephone or email to Commission communications;

1. the "possibility" that a party fails to respond to correspondence from the Commission because such correspondence has not been received or read, or because it has been misunderstood, or because directions have been misunderstood, or for some other legitimate reason, ought not be discounted. In other words, the fact that a failure to communicate with the Commission might 'possibly' be explained, is to be taken into account, even though such explanation has never been communicated to the Commission;

d) where a party does not comply with directions on the basis of an assertion that they are yet to obtain legal advice or legal representation, such an assertion will likely be a reasonable explanation for the party's non-compliance. This is so even in circumstances where the party has had the ability to obtain legal advice or legal representation since the date that they first filed their application (normally many weeks prior to their evidence and submissions being due), but have chosen to only inform the Commission of their failure to obtain such legal advice or representation after the deadline for them to file their evidence and submissions has already passed;

e) akin to overturning a default judgement, if an applicant can provide a belated explanation for their avoidant or incommunicado conduct, they have a very good chance that their dismissed proceedings will be revived or re-enlivened, including on the basis of a denial of procedural fairness generally, or one of its many broad tenants;

f) the failure of a party to file submissions and evidence in reply, even where directions have been issued that expressly 'require' the party to do so, provides no basis to infer that an applicant is not seeking to pursue their application. This is so despite the direction itself requiring reply evidence to be filed, the applicant providing no indication of their forensic choice not to file reply evidence, and the applicant making no attempt to have the direction as to reply evidence varied prior to its date for compliance; and

g) the Commission's power to dismiss an unfair dismissal application on grounds of non-compliance with directions, or being unresponsive to Commission communications, is only available on application by a respondent employer, and where the applicant has conducted themselves unreasonably (albeit, note that some of the matters set out in (a) to (f) above may limit or dilute the ordinary meaning of the term "unreasonable").

• [12] As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email and/or the Final Email, and has failed to otherwise respond to the Show Cause Email, the Voicemail, and/or the Final Email, I have decided to dismiss his Application.

• [13] The Applicant has been repeatedly asked to explain and justify his non-compliance and non-responsiveness, but has failed (for unknown reasons) to do so. This is in circumstances where the Applicant has been provided with every opportunity to contact Chambers by telephone or email, but has failed to do so. Even though there is always the possibility that the Applicant has failed to comply or otherwise respond because he has not received Commission communications or simply does not understand them, there is equally the possibility that the Applicant has simply decided to ignore the Commission. While the Applicant's representatives have ceased to act for him (notably, on the day his evidence was due to be filed), the Applicant was copied in on all correspondence in this matter, including when the Directions were issued, when the Show Cause Email was sent, and when the Final Email was sent. Furthermore, the Applicant was called on his personal mobile telephone clarifying that compliance with the Directions is still required in the absence of legal representation. The Final Email further clarified that, if the Applicant required more time to file his materials, he should communicate with Chambers to seek such an extension. Chambers received no communications from the Applicant seeking an extension of time, or explaining his non-responsiveness or non-compliance with the multitude of communications that he was sent.

• [14] Rather than engaging on the various possibilities, my preference is to work on the basis of what is actually before me (in terms of evidence) at the time of publishing this decision. In this regard, as at 13 June 2025, there is no evidence before me that the Applicant has in any way attempted to comply with Direction [2] and/or the Show Cause Email, and/or the Final Email, or otherwise sought to make any contact with the Commission whatsoever.

• [15] The decisions in Priestley and Xue identify that dealing with non-compliance and non-responsiveness is an ordinary part of case management. However, to the extent that these decisions fail to uphold (as their central focus) the issue of personal responsibility, for example, in being responsive in a timely manner to Commission communications, I decline to follow them.

• [16] A statutory tribunal such as the Fair Work Commission is expressly given certain jurisdiction and powers that it must exercise. I consider that the Commission must equally be taken to hold (by implication) whatever powers may be necessary to properly exercise such (express) powers and control its own process (including the dismissal of proceedings for reasons of non-compliance and non-responsiveness).[3] Further, in dismissing an application, I do not consider it necessary to get into some form of labelling or categorisation exercise as to whether an Application is being dismissed for want of prosecution, absent due dispatch, abuse of process, being vexatious, etc, or to engage is some form of detailed multifactorial analysis or balancing exercise around possibilities or unquantifiable probabilities, etc. If an applicant goes incommunicado and thus fails in their personal responsibility to engage with the case that they have themselves initiated, I consider this alone sufficient to remove the applicant's right or entitlement to have their proceedings continued any further. Of course, there will be exceptions, but such exceptions need to be well grounded in direct probative evidence of an actual inability to have communicated with the Commission at the relevant time, or as and when required to do so.

• [17] With due respect to the Full Bench in Xue, I do not accept that I need wait for the Respondent to make overtures about filing, or actually filing, an application under s.399A of the Act, to enliven my power and discretion to dismiss the Application. Whatever be an employee's right or entitlement to unfair dismissal protection, and the filing of a claim with the Commission to adjudicate same, such an employee also holds a personal responsibility to the Commission to be responsive in a timely manner to communications, and to file and serve their evidence and submissions as directed (i.e. absent prompt communication with the Commission of their inability to do so). A failure to be responsive is not simply an issue to be dealt with via run of the mill case management procedures, or only upon application by a respondent employer. Rather, I consider that non-responsiveness is outright fatal to an employee's ability to maintain, or continue to agitate, their (in this case unfair dismissal) claim before the Commission. Indeed, the suggestion that an unfair dismissal claim may only be dismissed upon a respondent employer's application under s.399A of the Act, in circumstances where an applicant's conduct has been deleterious and/or unreasonable, makes little sense.

• [18] An Order dismissing the Application under s.587(3)(a) of the Act, for the reasons set out in this decision, will be published contemporaneously with this decision.

[1] [2025] FWCFB 40

[2] [2025] FWCFB 75

[3] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, at 16-17, per Dawson J.

Printed by authority of the Commonwealth Government Printer