s.394 - Application for unfair dismissal remedy

Queensland Rail Transit Authority T/A Queensland Rail

• [1] On 18 April 2025, Mr Brayden Gartner (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act), being an application for an unfair dismissal remedy against Queensland Rail Transit Authority T/A Queensland Rail (the Respondent).

• [2] The matter was listed for an in-person Conference at the Commission, commencing at 11am on 4 June 2025. The notice of listing for this Conference issued to the parties on 26 May 2025, and asked that the parties write to my Chambers confirming their appearances ahead of the Conference.

• [3] The Respondent wrote to my Chambers on 28 May 2025 to confirm their appearances.

• [4] The Applicant failed to write to my Chambers to confirm his appearance.

• [5] On the afternoon of 3 June 2025, my Associate wrote to the Applicant asking that he confirm his appearance for the in-person Conference scheduled on 4 June 2025. The Applicant failed to respond to this correspondence.

• [6] On the morning of 4 June 2025 ahead of the Conference start time, my Associate attempted to contact the Applicant by phone, however, the Applicant was unavailable and a voice message was left. My Associate also sent an email to the Applicant asking that he urgently confirm his appearance for the Conference.

• [7] Four further attempts were made to contact the Applicant by phone, between 10.50am and 11.15am on 4 June 2025. The Applicant did not answer these calls, and did not attend the Commission. Accordingly, the Conference was vacated.

• [8] On that same date, a 'Non-Attendance Letter' was issued to the Applicant, requiring that he write to Chambers within 7 days providing an explanation for his non-attendance and reasons why his application should not be dismissed.

• [9] No communication, by telephone or email, has been received from the Applicant in response to the Non-Attendance Letter.

(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

(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:

• [11] It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]

• [12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact him in relation to the Conference of 4 June 2025, and has failed to respond to the Non-Attendance Letter issued on that same date. The Applicant has shown no willingness to prosecute his case and has taken no steps to do so.

• [13] In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

• [14] After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Mr Gartner's application for failure to prosecute his case.

• [15] Accordingly, the application is dismissed pursuant to section 587 of the FW Act.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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