s.394 - Unfair dismissal

Application for an unfair dismissal remedy - failure to comply with direction - s.399A application - application dismissed

• [1] On 3 March 2025, Adrian Tadebois made an unfair dismissal application alleging he had been unfairly dismissed by Tradelink Pty Limited (Tradelink). Mr Tedebois' application did not identify a dismissal date. Tradelink subsequently filed an employer response form which had several documents attached. The documents indicated Mr Tadebois tendered his resignation in writing on 26 November 2024, and that the resignation took effect on 12 December 2024. Mr Tadebois accepted during a Mention/Directions proceeding on 8 May 2025 that he had missed the 21-day filing period for an unfair dismissal application and needed an extension of time.

• [2] I issued directions for the filing of material in relation to whether Mr Tadebois should be granted an extension of time and listed a hearing for 28 May 2025. The directions required Mr Tadebois to file any evidence and submissions in support of his request for an extension of time by 5:00pm on 16 May 2025. Mr Tadebois did not file any material. An email was sent from my chambers to Mr Tadebois on 19 May 2025 which referred to Mr Tadebois' failure to file material, and directed him to file any evidence and submissions by 5:00pm the following day, 20 May 2025, or alternatively to seek an extension for filing material he wished to rely upon in relation to the jurisdictional issue. Mr Tadebois did not respond to the email from chambers.

• [3] On 23 May 2025, Tradelink filed an application seeking that Mr Tadebois' application be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act) on the basis that Mr Tadebois had not complied with the direction to file material.

• [4] On 23 May 2025, an email in the following terms was sent to Mr Tadebois:

Tradelink Pty Limited (Tradelink) has made the attached application to have your unfair dismissal application dismissed because you did not file material in accordance with the Commission's directions.

The Commissioner directs you to file any evidence or submissions in response to Tradelink's application by 10:00am on Tuesday, 27 May 2025.

The Commissioner has indicated that if you do not respond to Tradelink's application, your unfair dismissal application may be dismissed without further notice.

Please note the hearing listed for 28 May 2025 will be vacated if your application is dismissed."

• [5] Mr Tadebois did not respond to the email from chambers dated 23 May 2025.

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application."

• [7] The relevant principles to consider Tradelink's application under s.399A were helpfully summarised in Lockyear v Graeme Cox[1] (Lockyear):

"[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

1. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

1. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

1. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

1. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application."

• [8] Section 399A(2) is obviously satisfied by Tradelink's application.

• [9] Similarly, s.399A(1)(b) is satisfied by Mr Tadebois unreasonably failing to comply with my direction to file material in support of his request for an extension of time by 5:00pm on 16 May 2025. I discussed the exceptional circumstances test with Mr Tadebois during the Mention/Directions proceeding on 8 May 2025 and highlighted the need to file evidence to establish any alleged exceptional circumstance. Mr Tadebois failed to file material, failed to explain why he had not filed material, and failed to file any material in response to Tradelink's s.399A application.

• [10] The jurisdictional pre-requisites are met for Mr Tadebois' application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant's right to have their application heard and determined according to the law before they have had their 'day in court' (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station).[2]

• [11] I consider it is appropriate for Mr Tadebois' unfair dismissal application to be dismissed given his failure to comply with my direction to file material and repeated failure to respond to communications from my chambers. I do not consider Tradelink should be required to continue expending resources defending the application when it is not actively being prosecuted by Mr Tadebois. I see no utility in allowing Mr Tadebois' claim to continue and I therefore grant Tradelink's application under s.399A.

• [12] An order giving effect to this decision will be issued separately in PR787700.

[1] [2021] FWCFB 875 at [57].

[2] [2019] FWCFB 2925 at [31].

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