s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s.587

• [1] On 2 July 2025, Mr Alexander Kelleher (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Santrev (the Respondent).

• [2] On 5 August 2025, the matter was listed for a conciliation conference before a Commission staff conciliator. Parties were advised of this through a notice of listing issued on 22 July 2025. On 5 August 2025, the conciliation commenced as scheduled and the Respondent and their representative attended. The Applicant did not attend. The Commission made two attempts to call the Applicant within 30 minutes, and a voicemail was left both times, with no contact made. The Respondent agreed to reschedule the conciliation and confirmed understanding that the case would be referred to a Commission member if the Applicant did not attend.

• [3] On 22 August 2025, the matter was listed for a second conciliation conference before the same Commission staff conciliator. Parties were advised of this through a notice of listing issued on 5 August 2025. On 22 August 2025, the conciliation commenced as scheduled and the Respondent and their representative attended. The Commission tried to contact the Applicant and left two voicemails; however, the Applicant was not contactable again. The Respondent stated that they wished for the matter to go to a member on the basis that 1) Applicant did not respond to their communication, 2) this is the second non-attendance at conciliation by the Applicant, and 3) for Respondent's jurisdictional objection to be heard.

• [4] The conferences on 5 August 2025 and 22 August 2025 did not take place as the Applicant did not attend.

• [5] Subsequently, the matter was allocated to my Chambers on 27 August 2025 for determination.

• [6] On 2 September 2025, directions were issued for the filing of submissions and evidence, and the matter was listed for a Mention on 17 September 2025 and set down for a Hearing on 23 October 2025. Paragraph [13] of the Directions advised that 'Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned.'

• [7] On 17 September 2025 at 11:57AM, my Chambers received an email from the Respondent's representative concerning numerous unsuccessful attempts to contact the Applicant and the unreasonable financial burden placed on the Respondent.

• [8] The Applicant did not attend the Mention at 12:30PM on 17 September 2025. By 12:33PM, my Chambers emailed the parties with a Microsoft Teams link. At 12:40PM, my Chambers made two phone calls to the Applicant with no response. The Applicant was also sent the following correspondence ahead of the Mention:

In the notice of listing sent on the 2 September 2025, parties were asked to provide Chambers with the names and contact numbers of those attending. We have not received that information from the Applicant in this matter. Could the Applicant please provide us with appearance information as a matter of priority."

• [9] The Mention was conducted without the Applicant. The Respondent was represented by Mr Colin Dorber.

• [10] On 19 September 2025, following the Mention, my Chambers sent a non-compliance email to the Applicant in the following terms:

In regard to the above matter. You did not attend the mention held on Wednesday 17 September 2025 and we have been informed that you also failed to take part in previous listed conciliations.

Your matter is still before Commissioner Connolly and the Directions filed on the 2 September are still in effect. We still expect you to make submissions by Monday, 22 September 2025. Failure to do so may result in a non-compliance hearing.

If you no longer wish to continue this application, you can simply discontinue this matter by filing a Form F50 with Chambers.

• A copy of the Form can be found here: Notice of discontinuance (Form F50) | Fair Work Commission.

• Information about discontinuance can be found here: Withdraw your application for unfair dismissal | Fair Work Commission

Please notify Chambers as a matter of priority if you wish to continue this matter or discontinue."

• [11] The Applicant's initial submissions were due to be filed to Chambers and served on the Respondent by 4:00PM on 22 September 2025. The Applicant did not file any submissions, nor did he send any correspondence to the Commission.

• [12] To this date, no communication has been received from the Applicant since the application was filed on 2 July 2025.

(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:

• [14] It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application "for want of prosecution" is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]

• [15] In Raschilla v Ausino West Pty Ltd[3] the Full Bench emphasised that the Commission's powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an Applicant's right to have their substantive application heard and determined by the Commission.

• [16] In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute his case. The principle of 'a fair go all round' applies to both employers and employees. I find that the Applicant's non-participation in the Commission's processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.

• [17] As noted above, s.587(1) does not limit when the Commission may dismiss an application. Mr Kelleher has, in effect, abandoned his application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss Mr Kelleher's application.

• [18] The application lodged by Mr Alexander Kelleher pursuant to s.394 of the Act on 2 July 2025 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

[1] Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [48].

[3] [2017] FWCFB 5952.

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