s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

[1] On 21 October 2025, Ms Casey Elliston (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the FW Act. The Applicant alleges that her former employer, Lumus Imaging (New South Wales/ACT) Pty Ltd (the Respondent) contravened Part 3-1 of the FW Act by dismissing her on 2 October 2025.

[2] A Conciliation Conference by telephone was scheduled on 16 December 2025.

[3] On 15 December 2025, the Applicant wrote to my Chambers to advise that she was unavailable to attend the Conciliation Conference due to her new work schedule.

[4] The 16 December 2025 Conciliation Conference was adjourned on this basis, and the file held over pending advice from the Applicant as to her availability to attend a telephone conference in this matter.

[5] On 23 December 2025, the Applicant wrote to my Chambers to advise that her working hours are 8am - 4pm, Monday to Friday.

[6] To meet the Applicant's availability, I scheduled a further Conciliation Conference at 4.15pm AEDT on Thursday, 15 January 2026. The notice of listing required that the parties confirm their appearances in writing ahead of the Conciliation Conference.

[7] On the morning of 15 January 2026, my Chambers sent an email to both parties asking that they urgently confirm their appearances for the afternoon conference.

[8] The Respondent confirmed its appearances as requested. The Applicant, however, wrote to my Chambers advising:

"Unfortunately I have had work meetings come up and will not be able to attend.

[9] In response, I asked my associate to provide the following correspondence to the Applicant:

Commissioner Riordan notes that this matter was already adjourned at your request, and today's listing time was set to meet your convenience.

This is a formal listing before the Fair Work Commission. The Commissioner advises that you are required to attend, otherwise, your application may be dismissed.

Please urgently confirm whether you will be in attendance..."

[10] The Applicant did not provide any response or contact my Chambers ahead of the Conciliation Conference.

[11] The Respondent dialled into the conference line as required. The Applicant did not dial in.

[12] My associate made attempts to dial the Applicant into the conference line, including at 5 minutes before the start time, 2 minutes before the start time, and 15 minutes after the conference start time. The Applicant was not contactable, accordingly, the conference was vacated.

[13] My associate issued a 'Non-Attendance Letter' to the Applicant on 15 January 2026, requiring the Applicant to write to my Chambers within 7 days to provide an explanation for her failure to attend the Conciliation Conference and reasons why her application should not be dismissed.

[14] To date, Chambers has not received any response or communication from the Applicant.

(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:

• [16] 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]

[17] 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 her in relation to the Conciliation Conference of 15 January 2026, which had been rescheduled and listed at her request to meet her new working schedule. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so.

• [18] 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.

[19] After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Ms Elliston's application for failure to prosecute her case.

[20] Accordingly, the application is dismissed pursuant to section 587 of the 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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