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 12 August 2025, Ms Angela Paraskeva (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 employer respondent to the Application is Karimbla Constructions Services (NSW) Pty Ltd (Respondent).

• [2] Direction [2] of the Directions issued on 22 October 2025 reads:

"[2] By 4.00pm AEDT on Wednesday, 5 November 2025, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their unfair dismissal claim."

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

• [4] On Thursday, 6 November 2025, at 10:28AM AEDT, the following email (Show Cause Email) was sent to the Applicant:

Re: U2025/13078 - Ms Angela Paraskeva v Karimbla Constructions Services (NSW) Pty Ltd

On 22 October 2025, the Fair Work Commission issued Directions in this matter.

Direction [2] of those directions read as follows:

[2] By 4.00pm AEDT on Wednesday, 5 November 2025, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their unfair dismissal claim.

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 AEDT Today, Thursday 6 November 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] AT 2:34PM AEDT on Thursday, 6 November 2025, the Applicant emailed my Chambers without copying in the Respondent (Response Email). The Response Email read as follows:

I refer to the Commission's Directions dated 22 October 2025 and the subsequent correspondence regarding my non-compliance with Direction [2].

I sincerely apologise for not filing and serving my submissions, witness statements, and supporting documents by the due date of 5 November 2025.

I submit that the delay has not caused any significant prejudice to the Respondent, and

I am committed to progressing the matter as directed by the Commission. I therefore ask that the Commission exercise its discretion not to dismiss the application and allow me a short extension to comply.

• [6] The Response Email also contained several screenshots within the body of the email, without any explanation as to their relevance. The Applicant did not file any Outline of Submissions or witness statements or any other explanatory documentation to give context to the screenshots in her Response Email.

• [7] At approximately 2:45PM AEDT on Thursday, 6 November 2025, my Associate made a telephone call to the Applicant (Phone Call). During the Phone Call, my Associate queried with the Applicant if she intended on filing an Outline of Submissions or any witness statements, as per the Directions. The Applicant indicated that she was preparing these further documents but did not think she would be able to file by the 4pm deadline (that day) set out in the Show Cause Email. The Applicant was advised that if she filed her materials overnight, they would be accepted for filing. My Associate also advised the Applicant that when a party is non-compliant with Directions, it is crucial they keep communicating with Chambers, as 'radio silence' may result in the dismissal of her Application altogether. My Associate also provided the Applicant (by email that day at 2:53PM AEDT) with standard form templates prepared by my Chambers, to aid the Applicant with the preparation of her Outline of Submissions and any witness statements.

• [8] At 3:08PM AEDT, my Chambers sent the Applicant the following email (copying in the Respondent) (Extension Email):

The Deputy President will grant you until tonight to file the remainder of your materials. In future, please ensure you copy the Respondent's representatives into any emails you send to Chambers, for transparency and also to ensure that they are served with any materials you have filed (such as those contained in your email below). I have copied them in for completeness.

• [9] The Applicant did not comply with the Extension Email, nor did she make any further contact with my Chambers.

• [10] At 11:32AM AEDT on Friday, 7 November 2025, my Chambers sent the Applicant the following email (copying in the Respondent) (Final Extension Email):

Directions were issued in this matter on 22 October 2025, directing you to file and serve your materials by no later than 4pm on Wednesday, 5 November 2025. On Thursday, 6 November 2025, Chambers had not yet received any materials nor communication from you, and sent you an email directing you to file your materials and explain your non-compliance with the Directions by 4pm that day.

At 2:33pm on Thursday 6 November 2025, you emailed Chambers with no explanation for the delay, and attached a number of screenshots to your email. These screenshots were standalone and were not referenced within, or accompanied by, any submissions or witness statements. You therefore remained non-compliant with the Directions. You were given overnight to file your Outline of Submissions and any witness statements you sought to rely upon (Extended Deadline), and you indicated on a phone call to Chambers that this would be completed overnight.

To date, no further materials have been received from you by Chambers, nor any further correspondence received as to your non-compliance with the Extended Deadline. Your non-compliance with the Directions and Extended Deadline is therefore wholly unexplained.

Chambers will therefore allow you one final extension until 3pm today, Friday 7 November 2025, to file your Outline of Submissions and any witness statements you seek to rely upon. Failure to comply with this final Direction will result in your application being dismissed without further notice to you.

• [11] The Applicant did not comply with the Final Extension Email, nor did she make any further contact with my Chambers either by reply email or by way of an attempt to telephone Chambers.

• [12] Section 587 of the Act reads:

(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:

• [13] 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").

• [14] As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email and/or the Extension Email and/or the Final Extension Email, and has failed to otherwise make any further contact with my Chambers since the Phone Call, I have decided to dismiss her Application.

• [15] The Applicant has been given repeated opportunities to file her materials. Her repeated failure to do so is entirely unacceptable. This is particularly so when the Applicant has demonstrated that she can answer a phone call and send an email (such as the Response Email). No satisfactory explanations or evidence for the non-compliance and non-responsiveness have been provided by the Applicant for her failings.

• [16] Rather than engaging on the various possibilities as to why the Applicant has conducted herself in this manner, 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 10 November 2025, there is no evidence before me that, other than in her Response Email containing a few standalone screenshots, the Applicant has in any way attempted to comply with Direction [2] of the Directions, the Show Cause Email, the Extension Email and/or the Final Extension Email, or otherwise sought to make any contact with the Commission beyond the Response Email and the phone call she picked up from my Chambers. This is particularly concerning where the Applicant was explicitly told during the Phone Call that a failure to communicate with Chambers is likely to result in her Application being dismissed.

• [17] 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.

• [18] 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.

• [19] 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.

• [20] It is not for me to speculate, or give the benefit of the doubt to the Applicant, as to the plethora of reasons that might exist for the Applicant's non-compliance and deleterious conduct. That could only result in more time wasting.

• [21] 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.

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