s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application to dismiss unfair dismissal remedy application pursuant to s.399A - failure to attend proceedings - failure to comply with a direction or order of the Commission - application dismissed

• [1] On 26 August 2025, Mr Damian Peberdy (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

• [2] On 28 October 2025 the matter was allocated to my Chambers.

• [3] The matter was listed for a case management and directions hearing on 4 November 2025. Both parties attended the case management and directions hearing. The parties also participated in a conciliation conference but were unable to reach a resolution. Thereafter, the matter was listed for hearing on 16 December 2025. The Applicant was directed to file materials in support of the Application by 18 November 2025.

• [4] The Applicant did not file any materials in support of the Application. From 19 November 2025 until 15 December 2025, the Applicant failed to respond to directions of the Commission requiring him to provide an explanation for not complying with the directions to file his materials and directions to confirm whether he intends to press the Application.

• [5] On 16 December 2025, the Applicant failed to attend the hearing. At the commencement of the hearing, Alemlube Pty Limited (Respondent) made an oral application under s.399A of the FW Act (399A Application). By that application, the Respondent sought to have the matter dismissed on the basis that the Applicant has unreasonably failed to attend a conference or hearing before the Commission and has unreasonably failed to comply with a direction or order of the Commission.

• [6] I accepted the oral 399A Application and waived any requirement for the Respondent to file a Form F1 application (see s.586 of the FW Act; Rule 7 of the Fair Work Commission Rules 2024 (FWC Rules); Lockyear v Graeme Cox [2021] FWCFB 875 at [57]).

• [7] The Applicant was given notice of the 399A Application and an opportunity to respond to it. The Applicant failed to respond.

• [8] I am satisfied that the Applicant has unreasonably failed to attend a conference or hearing before the Commission and unreasonably failed to comply with a direction or order of the Commission. Furthermore, it is clear from the matters set out above that the Applicant has demonstrated an unwillingness to participate in proceedings he commenced. Having regard to those circumstances and the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded, I am satisfied that I should exercise my discretion to dismiss the application.

• [9] The Application is dismissed pursuant to ss.399A(1)(a) and (b) of the FW Act. An Order to that effect will be issued with this decision.

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