s.394 - Unfair dismissal

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

• [1] On 23 August 2025, Mr Benjamin Stebbing (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 he had been unfairly dismissed from his employment with Battery Services Australia Pty Ltd (the Respondent).

• [2] On 12 November 2025, I convened a Directions conference and member assisted conciliation. The Applicant failed to attend the Directions and conciliation conference. My Chambers attempted to call and speak to the Applicant twice by telephone, and by SMS.

• [3] On 12 November 2025, the Applicant was asked to explain his non-attendance at the conference. In that email, my Chambers explained my powers to dismiss applications under ss. 399A and 587 of the Act. The Applicant did not reply to that email.

• [4] On 19 November 2025, my Chambers emailed the Applicant noting that the Applicant had not replied to the email from Chambers. My Chambers reminded the Applicant that his submissions were due on 21 November 2025. The Applicant did not file his submissions. An SMS was also sent to the Applicant reminding him to check his emails.

• [5] On 24 November 2025, my Chambers emailed the Applicant and noted no response had been received. The Respondent was invited to make a s.399A application.

• [6] On 26 November 2025, following receipt of the Respondent's Form F1 s.399A application, my Chambers emailed the Applicant to provide him with a final opportunity to explain his non-compliance, and to file his submissions. He was granted until 4:00pm AEST, Friday, 28 November 2025 to do so.

• [7] To date, the Applicant has not filed his material and has not replied to any emails from my Chambers.

"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
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> > (b) failed to comply with a direction or order of the FWC relating to the application; or
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> > (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."

• [9] The Applicant failed to attend a scheduled conference and failed to file his submissions by the due date. The Applicant has been granted multiple opportunities to explain his non-compliance and was granted an extension to file his submissions. He has been contacted multiple times by my Chambers. The Applicant has provided no reasonable explanation for failing to attend and failing to file his submissions.

• [10] 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.

I have decided to exercise my discretion to dismiss the application under s.399A of the Act. I Order accordingly.

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