s 394 - Unfair dismissal

Application for an unfair dismissal remedy - Applicant failed to attend mention hearing - failed to respond to correspondence - failure to prosecute application - application dismissed pursuant to s 587 of the Act.

• [1] On 28 March 2025 Mr Antonio Pestana (the Applicant) applied under s 394 of the Fair Work Act (the Act) for a remedy for alleged unfair dismissal. On 9 April 2024 IKAD Engineering Pty Ltd (the Respondent) lodged a response to the application, indicating a jurisdictional objection that the application was lodged outside of the 21-day time period allowed under the Act. On 15 April 2025 the Fair Work Commission (FWC) wrote to the Applicant advising that his application appeared to be out of time and requesting an explanation of why this was the case. Such explanation was due on 23 April 2025 but no response was received from the Applicant.

• [2] On 7 May 2025 the Applicant was sent a follow-up email to which he responded the following day and indicated that previous emails had gone to his junk folder. Nevertheless, he advised that he wished to pursue his claim. The matter was then allocated to my Chambers on 14 May 2025. On 20 May 2025 my Chambers sent a notice of listing and directions to the parties, advising of a mention hearing to be conducted on 23 May 2025. At the appointed time for that hearing, the Respondent and its counsel were in attendance but the Applicant did not appear. Emails were sent and phone calls made to attempt to have the Applicant attend but no response was received.

• [3] As such, I caused the following email to be sent to the Applicant on 24 May 2025:

"Deputy President O'Keeffe notes your failure to attend the mention hearing to deal with your unfair dismissal application which was scheduled for 8am this morning. The notice of listing of this hearing was sent to you by email on Friday 16th May. Representatives of Ikad Engineering (the Respondent) attended the hearing but due to your absence it could not proceed. You should be aware that failure to attend a scheduled hearing is a serious matter.

Additionally, it is clear that your application was lodged outside of the 21-day time limit prescribed by the Fair Work Act. On that basis the Respondent's "out of time" jurisdictional objection must be dealt with to determine if you should be given an extension of time for lodgment of your claim. You should be aware that extensions of time are granted only where the Commission is satisfied that exceptional circumstances exist to warrant such an extension. You may wish to peruse the information provided on the Commission's website regarding extensions, which may be found here: Extension of time for lodging an application | Fair Work Commission.

In the present circumstances, your failure to attend the scheduled hearing has led the Deputy President to consider dismissing your application - using the powers conferred by s 587 of the Act - on the basis that you are not prosecuting the application by virtue of your non-attendance and because the application has limited prospects of success due to it being made out of time.

1. You must provide a written explanation, with evidence, of the reason for your non-attendance at today's hearing; and
2. You must provide a written summary of why your application was not made within the 21-day time limit and why exceptional circumstances exist to allow an extension of time.

Both of the above items must be received in Chambers by no later than 2.00pm (AWST) Monday 26th May 2025.

Please note that it is an applicant's responsibility to check their emails and the Deputy President notes that you have previously in this matter proffered the explanation that the Commission's emails went to your junk folder. As such, he is unlikely to be sympathetic to an argument that the email containing the listing went to your junk folder. Finally, you should be aware that if you do not comply with the directions above the Deputy President may dismiss your application with no further correspondence being exchanged.

• [4] No response was received by the appointed date and time and no response had been received by 4 June 2025.

• [5] Previous decisions of the FWC have found that the items in s 587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521. In this instance, the Applicant has failed to attend a mention hearing and failed to respond to correspondence from the FWC which sought to establish his intentions with respect to his application. In effect, the Applicant has failed to prosecute his claim.

• [6] In these circumstances, I am persuaded to exercise my powers under s 587 to dismiss the application. An order to that effect will issue.

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