s.394 - Unfair dismissal

• [1] On 19 February 2025, Ms. Bridget Kereopa commenced a proceeding for an unfair dismissal remedy against Lamigraf (Australia) Pty Ltd. Ms. Nicole Thompson of the firm Law on Lydiard filed the application on behalf of Ms. Kereopa.

• [2] On 18 March 2025, the matter was conciliated by a Fair Work Commission conciliator. The Commission was advised the matter had not settled and it wwas allocated to my Chambers.

• [3] On 28 March 2025, the matter was listed for a mention on 7 April 2025 at 10:30 AM and directions issued for attendance of the mention and the filing of material.

• [4] On 7 April 2025, my Chambers contacted Ms. Thompson shortly before the mention began. Ms. Thompson noted the firm has been unable to contact Ms. Kereopa since the conciliation. Mr. Tom Elliott, Director of Lamigraf, attended the mention which proceeded without Ms. Kereopa. After the mention, my Chambers sent an email noting Ms. Kereopa's failure to comply with the direction to attend the mention. It also reminded Ms. Kereopa of the direction to file material and that failure to comply with the directions could place her application at risk of being dismissed under s 399A.

• [5] On 15 April 2025, Law on Lydiard gave notice by email that it no longer acted for Ms. Kereopa, noting that they had been unable to contact their client.

• [6] Ms. Kereopa was due to file material by 5:00 PM on 23 April 2025. No material was received by the Commission and on 24 April 2025, I extended the deadline for Ms. Kereopa's material to 4:00 PM on 28 April 2025. This was communicated to her by an email from my Chambers which also noted that, should no material be received, the matter would be listed for a non-compliance hearing on 2 May 2025. The email again reminded Ms. Kereopa of the risk of her application being dismissed under s 399A.

• [7] On 29 April 2025, a notice of listing was issued for a show cause hearing on why the application should not be dismissed for want of prosecution to be heard on 2 May 2025 at 4:00 PM by Microsoft Teams.

• [8] On 2 May 2025, my Chambers attempted to contact Ms. Kereopa by telephone, however, no response was received. The show cause hearing was conducted later that day. Mr. Elliott attended that hearing and made an application under s 399A for the Commission to dismiss Ms. Kereopa's application for an unfair dismissal remedy.

• [9] Section 399A of the Act provides:

(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

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

(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.

• [10] Since the conciliation in this matter by the Fair Work Commission conciliator, Ms. Kereopa has failed to attend any conference or hearing in this matter; she has not met any directions made by the Commission; and she has not responded to any correspondence.

• [11] An applicant to an unfair dismissal proceeding has the onus of proving the dismissal was unfair and is expected to comply with directions and prosecute their case.

• [12] In those circumstances, the conduct of Ms. Kereopa demonstrates that she unreasonably failed to comply with directions and to attend mentions or hearings in the matter. In those circumstances I dismiss her application for want of prosecution under s 399A(1)(a) and (b).[1]

[1] PR786993.

Printed by authority of the Commonwealth Government Printer