s.394 - Unfair dismissal

Application for an unfair dismissal remedy. Application dismissed.

[1] On 9 October 2025, Mr Anthony Smith (Mr Smith) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Hind's Sand Supplies Pty Ltd (Hind's Sand).

[2] Section 1 of the Form F2 - Unfair Dismissal Application filed by the Mr Smith indicated that the Application was made outside of the 21 days. An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.

[3] On 29 October 2025, Hind' Sand filed a Form F3 - Employer response to an unfair dismissal application in which it raised a jurisdictional objection to the Application on the grounds that it was made outside of the 21 days and that therefore Mr Smith was not eligible to make an unfair dismissal application (Jurisdictional Objection).

[4] On 20 November 2025, the Application was allocated to my Chambers for determination.

[5] Directions were issued to the parties on 9 December 2025 (Directions). The Directions required Mr Smith to file an outline of submissions, his evidence and any authorities upon which he relied by 4pm (AWST) on Thursday 18 December 2025. The Directions stated that compliance with the Directions was mandatory.

[6] Mr Smith failed to file the materials by the required date and time as set out in the Directions.

[7] On 19 December 2025, my Chambers wrote to Mr Smith warning him that in the absence of him complying with the Directions, Hinds Sands may apply pursuant to section 399A of the FW Act to have the Application dismissed.

[8] On 19 December 2025, Hind's Sand applied pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Smith failed to comply with the Directions (Dismissal Application).

[9] On 22 December 2025, Mr Smith was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Tuesday 23 December 2025. Chambers advised Mr Smith that if he did not file any such submissions or evidence by 4pm (AWST) Tuesday 23 December 2025 the Application would be dismissed pursuant to section 399A of the FW Act.

[10] On 22 December 2025, Mr Smith wrote to Chambers providing brief submissions addressing why he failed to file materials pursuant to the Directions and provided a medical certificate in support of those submissions. On 23 December 2025, Mr Smith made further submissions addressing why his Application should not be dismissed. These materials did not comply with the Directions or adequately establish a basis for an extension of time to file the Application.

[11] On 23 December 2025, Chambers wrote to Mr Smith and Hind's Sand to advise that the Dismissal Application would not be granted. Mr Smith was granted a further extension to file the materials outlined in the Directions by 4pm (AWST) on Wednesday 24 December 2025.

[12] On 23 December 2025 and 24 December 2025, Chambers spoke with Mr Smith on the phone to ensure he understood the Directions and discussed at length the importance of filing materials to pursuant to the Directions by 4pm (AWST) on Wednesday 24 December 2025 and that if he failed to do so the Application would be dismissed.

[13] Mr Smith did not file any further materials by 24 December 2025 or subsequently.

(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:

• [15] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.[1]

• [16] The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

• [17] In Mcleod v Kulgera Trading Company Pty Ltd,[3] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

• [18] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[4] in which she stated:

"[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons."

• [19] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.[5]

[20] The Directions set out clearly what Mr Smith was required to file and when.

[21] Mr Smith was given multiple extensions to file his materials. Mr Smith was also provided with access to materials to assist him to prepare his materials or to obtain assistance to prepare his materials.

[22] There is no medical evidence before me to suggest that Mr Smith is unable to prepare his materials or provide instructions to a representative to prepare them on his behalf.

[23] As at the date of this decision, Mr Smith has filed no further materials and has not indicated that he has any intention to file anything further. The materials filed by Mr Smith do not establish a basis for the granting of an extension of time to file the Application.

[24] I therefore dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above.

• [25] An Order[6] to this effect will be issued with this decision.

[2] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

[3] [2014] FWC 2112.

[4] [2011] FWA 5458.

[5] See for example: Application by Monserrarah Duke [2021] FWC 5319, Application by Hang Li [2021] FWC 5348

[6] PR795913.

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