s.394 - Application for unfair dismissal remedy

D Aparicio & M Aparicio, trading as Apac Digital Dentistry & Laboratory

Application under ss 399A and 587 - failure to comply with directions - no reasonable prospects of success - application granted

• [1] Craig Edward Butcher has applied for an unfair dismissal remedy ("the substantive application") under section 394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The Respondents have filed an application[1] under section 399A and 587 of the Fair Work Act ("the dismissal application").

• [2] By their application the Respondents seek an order under section 399A(1)(b) of the Fair Work Act dismissing the substantive application for non-compliance with directions, and an order under section 587(1)(c) of the Fair Work Act, dismissing the substantive application because, in the absence of Mr Butcher taking any step to prosecute it, the substantive application has no reasonable prospects of success.

• [3] For the reasons that follow I have decided to grant the dismissal application and dismiss the substantive application.

• [4] On 16 July 2025 I issued a directions order, pursuant to which Mr Butcher was to attend a mention at 10:00 am on 28 July 2025, and file and serve his outline of submissions and witness statements by 4:00 pm on Monday 4 August.

• [5] Mr Butcher did not attend the mention on 28 July 2025. The Respondent's solicitor foreshadowed an application under section 399A of the Fair Work Act might be made. Around half an hour after the mention was listed Mr Butcher sent an email, apologising for his non-attendance. By way of excuse or justification, he relied upon his lack of legal representation, along with anxiety and panic attacks over the weekend. My chambers wrote to the parties that day, and that correspondence stated, inter alia:

• you are at liberty to seek medical care and legal representation;
• whether you are represented or not, you must comply with Directions and Listings of the Commission unless you obtain an extension or an adjournment;
• guidance on how to seek extensions or adjournments is included with the notes attached to the Directions issued on 16 July 2025;
• if you do not comply with Directions or Listings, that may have serious adverse consequences for your application."

• [6] Mr Butcher did not file his materials by 4 August 2025, or after that date. On 8 September 2025, my chambers wrote to the parties, stating, inter alia:

"It appears Mr Butcher has not filed any witness statements in compliance with the Directions of 16 July. In light of that, the Deputy President is considering vacating the Directions to the extent they require the Respondent to file materials in response and provide for a hearing or determinative conference to decide the application. Instead of proceeding to a hearing or determinative conference, Deputy President Butler is considering deciding the matter on the papers."

• [7] On 8 September 2025 Mr Butcher responded with an email stating that as he had no legal training or education he was unable to understand or comprehend any information or correspondence that my chambers sent. He stated he was still trying to find legal representation to "translate and decipher" the documents my chambers had sent, and asked if the Commission could help him by providing legal representation. The email also stated that Mr Butcher was seeing a psychologist and also undergoing physical rehabilitation, and was a single parent. On 10 September my chambers responded as follows:

"Mr Butcher, if you say your impairment is such that you cannot understand the Commission's communications or meet your obligations under the Commission's directions, please provide evidence in that regard such as a doctor's certificate, statutory declaration, or letter from your treating psychologist. Once that is provided the Commission will consider whether to adjourn the proceedings until you are fit to participate.

As to your request for representation, please note that the Commission is an impartial tribunal, not a representative body.

It is your responsibility to run your case. It is also your responsibility to arrange representation if you wish to do so. You may wish to consider:

• Approaching your union if you are a member of one;
• Engaging a private lawyer or industrial advocate;
• Contacting a community legal centre; and/or
• Considering whether you are eligible to apply for legal assistance via our referral service, the Workplace Advice Service: Legal advice from the Workplace Advice Service | Fair Work Commission."

• [8] On 10 September I issued a further directions order vacating the directions of 16 July to the extent they provided for the Respondents to file their materials, and for the Applicant to file materials in reply. On 15 September the Respondents filed this dismissal application. I am satisfied it was served on Mr Butcher. The next day my chambers wrote to the parties indicating that directions would issue to deal with the dismissal application. That correspondence included, inter alia:

"Mr Butcher, you will also have an opportunity to provide evidence and submissions, under the directions. If you still maintain you are too impaired to understand this process please provide medical evidence to corroborate your assertion in that regard at your earliest opportunity."

• [9] On 16 September 2025 I issued the following directions:

"The Respondents in these proceedings, who trade as Apac Digital Dentistry & Laboratory, have applied for these proceedings to be dismissed, by application filed 15 September 2025. These further directions are made to determine their application.

[1] By 4:00pm AEST (QLD time) on Tuesday, 23 September 2025, Apac Digital Dentistry & Laboratory may file in the Commission and provide to Mr Butcher any witness statements or affidavits, and/or further submissions, if any, on which they wish to rely in support of their application filed 15 September 2025.

[2] By 4:00pm AEST (QLD time) on Tuesday, 30 September 2025, Mr Butcher may file and serve any witness statements or affidavits, and/or submissions, on which he wishes to rely, in response.

[3] By 4:00pm AEST (QLD time) on Friday, 3 October 2025, Apac Digital Dentistry & Laboratory may file evidence and/or submissions in reply.

[4] The application of 15 September 2025 will be determined on the papers subject to further direction or order to the contrary."

• [10] That day Mr Butcher sent correspondence in the following terms:

"I have been trying to get an appointment with my medical professional as the original next appointment I have is on the 29th of this month to provide the things you have requested. I am still waiting to hear from the psychologist.

Either way I haven't been able to find appropriate legal advice or representation, and again I am balancing recovering from the injury incurred whilst working for Mario Aparicio and also still trying to apply and get into work again in order to follow up with this process. And being a single dad.

If the chambers decide to discontinue, I will follow up when I am able to find the support and representation I need so that I can be better prepared."

• [11] On 22 September my chambers wrote to the parties stating:

"Mr Butcher, we look forward to receiving medical evidence by the afternoon of 30 September. Please note that if your case is dismissed you are unlikely to be able to make another application to the Commission in relation to dismissal at a later date."

• [12] Mr Butcher has not provided any medical evidence as to his asserted incapacity. He has not filed the materials required under the directions order of 16 July 2025. He has not filed any materials in response to the directions order of 16 September 2025.

Respondents' evidence and submissions in support of its dismissal application

• [13] In support of the dismissal application the Respondents filed a witness statement of their solicitor annexing procedural documents and correspondence, and written submissions.

• [14] By their written submissions filed 15 September 2025 the Respondents argued that Mr Butcher had failed, unreasonably, to comply with a direction or order of the Commission in relation to the substantive application, and continued to fail, unreasonably, to do so. They argued that Mr Butcher's application had no reasonable prospects of success because of his failure to prosecute it. They referred to the procedural history of this matter.

• [15] The Respondents submitted that the power of the Commission to dismiss an application should be used sparingly and approached with caution.[2] They submitted that if an applicant's conduct or omissions show that they are no longer willing to participate in their own case, the Fair Work Commission need not persevere with the application.[3] They referred the Commission to Lockyer v Cox [2021] FWCFB 875 and the consideration there of the approach to be taken to applications pursuant to section 399A of the Fair Work Act. They also referred me to some helpful single Member decisions.

• [16] They submitted that in addition or in the alternative the Commission may exercise its discretion to dismiss the substantive application on the grounds that it had no reasonable prospects of success, as no evidence had been provided.[4]

• [17] The solicitor's witness statement was dated 19 September 2025 and annexed copies of directions and emails, including an email from the respondents' solicitors to the applicant of 2 September putting him on notice of the intention to file the dismissal application and inviting him to discontinue. As Mr Butcher has not filed any materials contradicting the witness statement and has not attempted to establish his incapacity to do so I consider the statement to be uncontested, and I am able to rely on it.

• [18] Section 399A(1)(b) of the Fair Work Act provides that the Commission may dismiss an application if it is satisfied that the applicant has unreasonably failed to comply with a direction of the Commission relating to the application. Mr Butcher unreasonably failed to comply with my direction of 16 July 2025, referred to above. The discretion in section 399A is enlivened. I consider it appropriate to exercise that discretion. I also accept that the substantive application has no reasonable prospects of success because the applicant has not filed his evidence, and has not provided any proper foundation on which I could consider granting an adjournment, despite being given a generous amount of time in which to do so.

• [19] The order of the Commission is that:

1. Mr Butcher's application for an unfair dismissal remedy is dismissed.

Mr Andrew Cardell-Ree of Thomson Geer for the Respondents.

Respondents' written submissions of 15 September 2025.

[2] Resta v Myer Pty Ltd [2013] FWC 7080 (Gostencnik DP, 17 September 2013) at [32] and [39]; Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 (Richards SDP, 14 July 2015) at [9].

[3] Satwinder Multani v Prabh Pty Ltd [2025] FWC 2359 at [15], citing Viavattene v Health Care Australia [2013] FWCFB 2532, [39].

[4] Referring to Steadman v The South Australian Potato Company Pty Ltd T/A SA Potato Company [2011] FWA 1300, [32].

Printed by authority of the Commonwealth Government Printer