s.394 - Unfair dismissal

Bynoe Community Advance Co-operative Society Ltd

• [1] On 21 July 2025, Ms Alyssia Edwards made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that she had been dismissed from her employment with Bynoe Community Advance Co-operative Society Ltd (the Respondent) and that her dismissal was harsh, unjust or unreasonable. On 11 August 2025, the Respondent submitted a response and raised a jurisdictional objection that the Applicant was not dismissed.

• [2] The matter was listed for a telephone conciliation with a Commission staff conciliator. Settlement was not reached.

• [3] The matter was allocated to me and pursuant to directions issued by me on 23 September 2025, I convened a telephone conference between the parties on 9 October 2025.

• [4] Ms Edwards was required, pursuant to the directions to file material by 4:00pm on 14 October 2025. At 3:22pm that day, Ms Edwards sought an unspecified extension of time in which to file her material and stated the following:

"I would like to request an extension as I am still gathering witness statements to support application for unfair dismissal.

If an extension is considered, I am happy to notify the other party of this request.

• [5] Regrettably, Ms Edwards has made no further contact with my chambers despite the following efforts to contact her:

• Email dated 14 October 2025 requesting Ms Edwards advise how long she requires to file her material, noting I would be unlikely to grant an extension of time beyond 16 October 2025;

• Email dated 17 October 2025 requesting Ms Edwards make contact by the end of that day;

• Email of 17 October 2025 listing the matter for a non-compliance hearing on 22 October 2025. This was undeliverable as Ms Edwards' email box was full;

• Telephone calls by my Associate on 17 October 2025, not answered and voice messages unable to be delivered as Ms Edwards' voice message bank was full;

• Text message sent to Ms Edwards on 20 October 2025 informing her of the non-compliance hearing on 22 October 2025 and informing her that failure to attend may result in the application being dismissed for want of prosecution. A link was provided, advising Ms Edwards that she simply needed an internet browser and internet to participate;

• A further text message sent to Ms Edwards on 21 October 2025 rescheduling the non-compliance hearing to 24 October 2025 on account of her failure to confirm her attendance;

• Email of 21 October 2025 advising a text message had been sent and listing the non-compliance hearing. This was undeliverable as Ms Edwards' email box was full;

• A further email on 23 October 2025. This was undeliverable as Ms Edwards' email box was full.

• [6] Unsurprisingly, Ms Edwards did not join the non-compliance hearing on Microsoft Teams on 24 October 2025. My Associate made attempts to contact Ms Edwards by telephone for the purpose of the non-compliance hearing, however these attempts were unsuccessful. The non-compliance hearing was therefore vacated.

• [7] Section 587 of the Act provides as follows:

(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

(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:

• [8] Ms Edwards has not communicated or corresponded with the Commission since the sending of her extension request on 14 October 2025. A very large number of attempts have been made to engage Ms Edwards in her application to the Commission. The text messages have been sent in an effort to engage Ms Edwards in the event she is unable to make telephone calls or send text messages on account of not having enough data on her phone. If she does not have enough data on her phone, it ought not, I expect, prevent her from receiving messages.

• [9] Ms Edwards could have joined the non-compliance hearing from anywhere she was able to access free wifi, and attempts were made to inform her of this.

• [10] The words, "without limiting when the FWC may dismiss an application" at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss.587(1)(a), (b) and (c).

a) file material in accordance with the direction issued by me;

b) respond to my chamber's email request for her to specify the proposed length of extension sought;

c) respond to my chamber's emails to parties regarding the non-compliance hearing;

d) respond to my chamber's calls to her nominated mobile number;

e) respond to my chamber's SMSs to her nominated mobile number; and

f) attend the non-compliance hearing before me on 24 October 2025

I have decided to dismiss Ms Edwards' application pursuant to s.587(3)(a) of the Act for want of prosecution.

• [12] An Order to this effect will be issued with this decision.

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