• 5. Despite the Father's submission on behalf of the Applicant to the contrary and his reliance on Maverick Campbell v Bevchain Pty Limited,[8] where an unfair dismissal conciliation conference is conducted by a member of the Commission's staff under delegation, it constitutes a conference conducted by the Commission for the purposes of s.399A(1)(a) of the Act.

• [28] I consider the decision of the Full Bench in Millington v Traders International Pty Ltd (Millington)[9] is instructive when considering the circumstances of this case. In Millington the right to make an unfair dismissal application was characterised as follows:

"[71] As earlier discussed, the right under the Act to make an application for an unfair dismissal remedy is personal to the dismissed employee. The Act does not confer a right to a remedy, but only a right to make an application and have it heard according to law. The right is therefore best characterised as a bare, non-assignable right of action. Such rights of action are not, outside the constitutional context, usually regarded as being in the nature of "property".

[72] The "primary remedy" under Part 3-2 of the Act is reinstatement. Reinstatement is something entirely personal to the applicant for an unfair dismissal remedy. Whether that remedy is granted or not in relation to a dismissal found to be unfair depends to a large degree upon an assessment of the dismissed employee's personal suitability to return to his or her former position (or another position that is no less favourable), including the capacity for a working relationship to be re-established between the dismissed employee and the former employer. These are matters entirely personal to the dismissed employee."

[29] In the circumstances of this case, in which the Applicant is exercising a personal right and, through the Form F2, has enunciated an intention to pursue reinstatement, I consider it was incumbent upon him to attend the conciliation conferences. While it may well have been the Applicant's preference to only have the Father present and speaking on his behalf, I do not consider such a personal preference excused his non-attendance.

[30] I consider the Applicant unreasonably failed to attend the conciliation conferences conducted by the Commission on at least 10 September 2025, 29 September 2025 and 21 October 2025. As to the non-attendance on 10 September 2025, the Applicant did not provide sufficient advance notice that he would not be attending and nor did he provide compelling evidence explaining why he could not.

[31] That the Applicant was required to attend in the future was made clear at the 10 September 2025 conciliation conference. At that time, the Father was advised that the 10 September 2025 conciliation conference could not go ahead in the absence of the Applicant. I consider, therefore, that both the Applicant and the Father were on notice from that point in time that the Applicant's attendance at conciliation conferences was required. That the Applicant elected to persist with his preference for non-attendance at the subsequent conferences caused unnecessary delay for the Respondent because the ultimately unsuccessful attempts to have the matter conciliated took place over a 6-week period from 10 September 2025 to 21 October 2025.

[32] I have also considered the medical evidence relied upon to explain the Applicant's inability to attend the conciliation conferences on 29 September 2025 and 21 October 2025 and note it simply certified the Applicant as "unfit for studies." I am not persuaded this provided a reasonable basis for the Applicant's non-attendance at either conference. Specifically, I am not satisfied it established that the Applicant could not have attended in capacity terms, particularly when he had the assistance of his father.

[33] Ghalloub established that directions play an important role in case management. In this case, the Applicant has failed to comply with both the 12 November 2025 Directions and the 8 December 2025 Amended Directions, which had confirmed the requirement that he file and serve material by specific deadlines. The Commission imposed these requirements so that the Applicant' unfair dismissal application could be heard and determined in a timely manner, having regard to its obligations in s.577 of the Act. In this case there is both a history of non-compliance and there has been continuing non-compliance. This has resulted in the 5 February 2026 listing for the Arbitration Conference/Hearing being vacated.

[34] I afforded the Applicant leniency when he did not comply with the 12 November 2025 Directions. I vacated those directions and the non-compliance hearing listed for 4 December 2025. I also granted the Applicant a further accommodation by reversing the order in which the parties were to file and serve their material when making the 8 December 2025 Amended Directions. I considered that the 8 December 2025 Amended Directions were a means by which the 5 February 2026 listing for the Arbitration Conference/Hearing in this matter could be preserved.

[35] The varied timetable in the 8 December 2025 Amended Directions meant there was a 9 week period from the issuing of the 12 November 2025 Directions to the new compliance date of 12 January 2026 for the preparation, filing and service of the Applicant's material. The 8 December 2025 Amended Directions also afforded the Applicant the opportunity to do so having considered the Respondent's witness statements and documents.

[36] More broadly, the 8 December 2025 Amended Directions were made within a context of the Applicant having been advised of the nature of the Respondent's allegations against him from as early as 19 March 2025 and having been notified of the reasons for his dismissal in a letter dated 13 May 2025. As such, by the time I made the 8 December 2025 Amended Directions:

1. The Applicant had already had nearly seven months from the time he was notified of the reasons for his dismissal to start preparing material in response;

1. Six months had passed since the Applicant had filed the Form F2; and

1. Four months had passed since the Applicant had been served with the Respondent's detailed Form F3 and its seven attachments.

[37] Further, by 12 January 2025, when the Applicant's material fell due under the 8 December 2025 Amended Directions, it had been eight months since the Applicant was notified of the Respondent's reasons for his dismissal. As such, I do not accept the proposition that it was not possible for the Applicant to begin the preparation of the material in support of his unfair dismissal application until he received the Respondent's material on 19 December 2025.

[38] I also do not accept that the medical certificates produced by the Applicant support a conclusion that the Applicant was incapacitated to such an extent that he could not have been preparing his materials in compliance with both the 12 November 2025 Directions and the 8 December 2025 Amended Directions ahead of their prescribed deadlines. The medical certificate produced on 3 December 2025 disclosed that there was a two week period after the issuing of the 12 November 2025 Directions before the Applicant was hospitalised for 4 days. Secondly, that medical certificate simply disclosed that the Applicant was unfit for "duty" from 26 November 2025 until 5 December 2025. Thirdly, that the 3 December 2025 certificate was not valid for absence from court or other judicial proceedings suggested that the Applicant was not severely incapacitated.

[39] The second medical certificate was dated 8 December 2025. It certified the Applicant as being unfit for "work", stated "excuse prolonged sitting/standing and heavy weights" and detailed that the certificate was not valid for absence from court or other judicial proceedings. I am therefore not persuaded this second certificate established such incapacity that would have prevented the Applicant from preparing his materials once the 8 December 2025 Amended Directions had been made.

[40] Notwithstanding the Respondent's materials were due by 3.00pm on 19 December 2025, both the Applicant and the Father were recipients of the Respondent's email serving them that was sent at 7.40pm on 19 December 2025. To the extent that the Applicant seeks to rely on the Father's overseas travel from 20 December 2025 until 3 January 2026, I do not consider this answers the contention that the Applicant unreasonably failed to comply with the 8 December 2025 Amended Directions. Firstly, when I first issued the 8 December 2025 Amended Directions, I was not advised that the Father's overseas travel would prevent compliance. Secondly, the Applicant and the Father made a decision not to utilise the first 15 of the 24 days available to them to respond to the Respondent's material. In this regard, the Father has disclosed that he did not plan to commence any work on the Applicant's response materials required under the 8 December 2025 Amended Directions until 5 January 2026, after he returned from his overseas travel. This was a choice he and the Applicant made and that they had to unexpectedly contend with notification of the Applicant's obligation to report for military service upon the Father's return from overseas was a challenge of their own making.

[41] The reality is that Applicant was in a position to at least start preparing his materials well prior to 19 December 2025. He was aware of the Respondent's allegations from at least 19 March 2025 onwards and the reasons given for his dismissal from 13 May 2025. He was granted an accommodation by the Commission in early December 2025 but instead of undertaking preparation work after 8 December 2025, he and the Father remained inactive.

[42] The power to dismiss an application if the non-compliance was unreasonable is discretionary. As noted above, the Applicant is 20 years old and he has previously undertaken tertiary studies and yet apart from completing his Form F2, he has done next to nothing to demonstrate a willingness to pursue his case. In fact, by his letter dated 19 December 2025 he has effectively transferred his obligation to prosecute his case and any interest in making decisions in relation to it to his father. I consider this erodes any suggestion that his failure to attend the conciliation conferences and comply with directions has not been unreasonable. I have also considered what the Applicant has outlined, albeit in very broad terms, in the Form F2 to assert his dismissal was unfair against what the Respondent has filed to date. I consider the Respondent's prima facie case is weighty and am not persuaded the Applicant has disclosed a case that appears "fairly arguable."

[43] In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss the Applicant's unfair dismissal application. For the reasons outlined above, I am satisfied that the Applicant unreasonably failed to attend the conciliation conferences on 10 September 2025, 29 September 2025 and 21 October 2025 and that this caused unnecessary delay. Further, I am satisfied the Applicant unreasonably failed to comply with the 8 December 2025 Amended Directions that required him to file and serve his material for the Arbitration Conference/Hearing. I also note that a further seven weeks have passed since the 12 January 2026 compliance date and yet the Applicant's non-compliance persists. Finally, despite explicit advance notification that he was required to attend, the Applicant failed to attend the hearing of the s.399A application on 3 March 2026. The Applicant's pattern of non-compliance weighs in favour of a conclusion that this is a case in which it is appropriate to exercise the discretionary power in s.399A.

• [44] Through the Father, the Applicant seeks a confidentiality order. The Commission has a discretionary power to make orders restricting the publication of names of persons making submissions to the Commission in relation to a matter before it.[10] In this matter I have determined to exercise this power. I consider it is desirable to do so in the hope that it will perhaps enable the Applicant to move on with his life with a renewed focus on obtaining academic qualifications and practical work experience that leads to a worthwhile career, rather than engaging in protracted litigation to clear a name that would not, at this point, be at all widely known. As such, the names of the Applicant, the Father and the Respondent have not been published in this decision and I order that they not be published.

• [45] My determination to exercise my discretion and dismiss the Applicant's unfair dismissal application pursuant to s.399A brings it to an end. An Order[11] to this effect will be issued with this Decision.

[1] I had originally listed the matter for a MAC on 22 December 2025and it had subsequently been brought forward to 19 December 2025 at the request of the Respondent.

[2] These were filed at 7.41pm on 19 December 2025.

[4] See Rule 9(5) of the Fair Work Commission Rules 2024.

[5] This letter had previously been sent to my Chambers and in it, the Applicant outlined that he had authorised the Father to act as his representative - see above at [9].

[6] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [163].

[7] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

[8] [2024] FWC 2506.

[9] [2014] FWCFB 888 at [71]- [72].

[10] See s.594(1)(b) of the Fair Work Act 2009.

[11] PR797514.

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