s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application under s 399A of the Act - unreasonable failure to comply with directions - failure to prosecute - application dismissed.

[1] This is a decision to dismiss the application for an unfair dismissal remedy made by Mr Codey Spilsbury on 25 November 2025.

[2] On 18 February 2025, the respondent (The Trustee for the ACA Unit Trust) applied under s 399Aof the Fair Work Act 2009 (Cth) for the Commission to dismiss the application on the grounds that Mr Spilsbury had failed to comply with directions and attend a conference. Mr Spilsbury was copied into the email with the respondent's application. The respondent's application was also brought to Mr Spilsbury's attention in an email from my chambers on 19 February 2026.

[3] I am satisfied that Mr Spilsbury has failed to comply with my directions. Directions were emailed to the parties on 12 January 2026. Those directions required Mr Spilsbury to file and serve his materials by no later than 12:00pm noon, Tuesday 10 February 2026. My chambers wrote to Mr Spilsbury on 11 February 2026 as he had not filed his materials. In that email, I required Mr Spilsbury to file his materials and to provide reasons for why he had failed to comply with my directions. My chambers wrote to Mr Spilsbury again on 19 February 2026 informing him that he risked his matter being dismissed if he did not file materials, provide reasons for his failure to comply and confirm that he would attend a case management conference.

[4] Mr Spilsbury has not filed any materials and did not reply to my chambers' emails of 11 and 19 February 2026.

[5] I am satisfied that Mr Spilsbury has unreasonably failed to comply with my directions because we have informed him of the consequences of failing to comply and provided him with the opportunity to provide reasons for failing to comply.

[6] The Commission can also dismiss an application under s 587 if an application is not made in accordance with the Act, it is frivolous or vexatious or if it has no reasonable prospects of success. But these grounds do not limit the Commission's power to dismiss an application. The Full Bench in Viavattene v Health Care Australia [2013] FWCFB 2532 at [39] said that the Commission can also dismiss an application where

an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.

[7] Mr Spilsbury did not attend a conciliation conference before an FWC staff conciliator on 23 December 2025. The respondent did attend that conciliation conference.

[8] Mr Spilsbury has not replied to any attempted contact or correspondence of the Commission. He has not confirmed his attendance for a schedule case management conference. He has not participated in any aspect of his application beyond filing the initial Form F2. I am satisfied that Mr Spilsbury has demonstrated an unwillingness to participated in his own application and the Commission should not be required to persevere with it in those circumstances.

[9] I dismiss Mr Spilsbury's application under s 399A and s 587 of the Act.

[10] I order that Codey Spilsbury's application for an unfair dismissal remedy under FWC Matter U2025/18548 made on 25 November 2025 be dismissed.

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