s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed under s.399A of the Act

[1] On 23 August 2025, Ms Amy Jackson (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed from her employment with Coles Group Limited (the Respondent).

[2] On 16 January 2026, my Chambers listed the matter for Directions proceedings to be conducted on 27 January 2026. The Applicant did not join the Microsoft Teams meeting at the scheduled commencement time. My Associate telephoned the Applicant twice and left a voice message to urgently contact Chambers or join the Microsoft Teams meeting. My Associate then emailed the parties requesting the Applicant join the proceedings as soon as possible. Chambers then made one further telephone call and left a voice message, before sending an SMS to the Applicant's nominated telephone number.

[3] On the same day, my Chambers emailed the parties to request that the Applicant explain her non-attendance at the listed proceedings by close of business, 30 January 2026. The correspondence also put the Applicant on notice that I may dismiss an application for unfair dismissal under s.399A of the Fair Work Act on application by the employer 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..." My Chambers did not receive any correspondence from the Applicant by close of business, 30 January 2026.

[4] My Chambers sent further correspondence to the parties on 4 February 2026 noting that the Applicant had failed to file any submissions or evidence in accordance with previously issued Directions. I provided the Applicant the opportunity to explain her non-attendance at the listed proceedings and her non-compliance with Directions by close of business 6 February 2026. The Applicant did not contact Chambers or file any material to date.

[5] On 5 February 2026, the Respondent filed a Form F1 application under s.399A(a) and (b) of the Act seeking that the application be dismissed.

"399A Dismissing applications

(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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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 Applicant failed to contact my Chambers or file any material as directed. The Applicant was afforded opportunities to provide an explanation as to her non-attendance at the Directions proceedings and the failure to comply with Directions. The Applicant has provided no reasonable explanation for failing to attend and failing to file her submissions.

[8] In the circumstances I am satisfied the Applicant has unreasonably failed to attend a Conference held by the Commission and unreasonably failed to comply with a direction of the Commission.

It is appropriate to exercise my discretion to dismiss the application under s.399A of the Act. I Order accordingly.

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