s.394 - Application for unfair dismissal remedy

• [1] On 26 August 2025, Ms Caitlin White (Ms White) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Hunter Madison Holdings Pty Ltd (Hunter Madison).

• [2] On 15 September 2025, Hunter Madison filed a Form F3 - Employer Response to an

unfair dismissal application noting that it did not raise a jurisdictional objection in relation to

• [3] Directions were issued to the parties on 3 November 2025 (Directions). The Directions required Ms White to file an outline of submissions, her evidence and any authorities upon which she relied by 4pm (AWST) on Tuesday 11 November 2025. The Directions stated that compliance with the Directions was mandatory.

• [4] On 4 November 2025 the parties attended a conciliation conference before me. The parties were unable to reach a resolution. At the Conference it was explained in detail to Ms White the materials she was required to file and the consequences if she failed to comply with the Directions.

• [5] At 4:32pm (AWST) on Tuesday 11 November 2025 Ms White filed materials pursuant to paragraph [7] (a) of the Directions.

• [6] On Wednesday 12 November 2025 Chambers wrote to Ms White noting that she had failed to fully comply with paragraph [7] of the Directions by the deadline and identified that to her that she has failed to provide any witness statements, document list or identified any authorities upon which she sought to rely upon. Ms White was advised that she would be granted an extension until 4pm (AWST) Thursday 13 November 2025 to comply with the Directions and amended directions would be issued to the parties.

On Wednesday 12 November 2025 Ms White wrote to Chambers requesting further clarification regarding compliance with the Directions. Chambers wrote to Ms White providing additional clarification and links to the FWC website for additional resources for her to access.

• [7] On Monday 17 November 2025 Amended Directions were issued to the parties and Ms White was granted an extension until 4pm (AWST) Tuesday 18 November 2025 to comply with paragraph [7] and file additional materials in support of her Application.

• [8] Ms White did not file any further materials.

• [9] On Friday 21 November 2025, Chambers wrote to Ms White warning her that in the absence of her complying with the Directions it was proposed that her application be dismissed pursuant to section 587 of the Fair Work Act.

• [10] Ms White was invited to make submissions providing reasons as to why the FWC should not dismiss the Application and evidence or other documentary material supporting those reasons by 4pm (AWST) Monday 24 November 2025**.** Ms White was informed that if she wished to also make oral submissions in relation to the proposed dismissal of the Application she must advise Chambers by 4pm (AWST) Monday 24 November 2025.

(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

(b) the application is frivolous or vexatious; 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:

• [12] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.[1]

• [13] The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

• [14] In Mcleod v Kulgera Trading Company Pty Ltd,[3] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

• [15] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[4] in which she stated:

"[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons."

• [16] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.[5]

• [17] The Directions set out clearly what she was required to file and when.

Ms White was advised at the conference in detail the nature of the materials she would be required to file and the consequences of her failure to do so.

• [18] Ms White was given an extensions to file her materials. Ms White was also provided with access to materials to assist her to prepare her materials or to obtain assistance to prepare her materials.

• [19] There is no medical evidence before me to suggest that Ms White is unable to prepare her materials or provide instructions to a representative to prepare them on her behalf.

• [20] As at the date of this decision Ms White has filed no further materials and has not indicated that she has any intention to file anything.

• [21] I therefore dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above.

[2] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

[3] [2014] FWC 2112.

[4] [2011] FWA 5458.

[5] See for example: Application by Monserrarah Duke [2021] FWC 5319, Application by Hang Li [2021] FWC 5348

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