Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Application dismissed pursuant to s.399A of the Fair Work Act 2009.

• [1] On 28 May 2025, Ms Danielle Teague made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is KADD Facility Group Pty Ltd (the Respondent).

• [2] In her Form F2 - Unfair Dismissal Application (Form F2), Ms Teague provided a mobile phone number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Ms Teague received a response that it was "undeliverable".

• [3] The matter was allocated to me and on 15 July 2025 I made Directions that were sent by email to the parties that day. On 16 July 2025, I caused a Notice of Listing to be sent to the parties for a telephone Mention to be held at 4:00pm on 18 July 2025. My Directions dated 15 July 2025 outlined the timeline for the filing and service of material ahead of an Arbitration Conference/Hearing. In particular, Ms Teague was directed to file and serve her Outline of Argument, Statement(s) of Evidence and Document List, by no later than 3:00pm on Thursday 31 July 2025.

• [4] On 18 July 2025, my Chambers attempted to contact Ms Teague on her nominated telephone number shortly before the scheduled time for the Mention. Ms Teague could not be reached. Two voicemail messages were left reminding Ms Teague of the Mention, suggesting that she join it and cautioning her that the Mention would proceed in her absence. There was no response and the Mention proceeded in the absence of Ms Teague. My Directions dated 15 July 2025 were discussed and explained to the Respondent.

• [5] By 3:00pm on Thursday 31 July 2025, Ms Teague had not complied with my Directions. On Friday 1 August 2025, the Respondent filed with the Commission and served on Ms Teague, by using her nominated email address, an application pursuant to s.399A of the Act seeking to have Ms Teague's unfair dismissal application dismissed (s.399A application).

• [6] On Monday 4 August 2025, correspondence was sent from my Chambers to Ms Teague's nominated email address confirming the s.399A application had been made and attaching copies of it, together with my Directions dated 15 July 2025. Ms Teague was directed to file submissions by no later than 12.00 noon on Thursday 7 August 2025, explaining why she had not complied with the Direction to file her material by 3.00pm on 31 July 2025. This correspondence outlined that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission. Ms Teague was further cautioned that in the absence of a response, her unfair dismissal application would likely be dismissed without further notice, via a Decision and Order which would be published on the Commission's website.

• [7] As at 12.00 noon on 7 August 2025, Ms Teague had not filed any material with the Commission in response to the s.399A application. Nor had she made any contact with my Chambers. This failure to do so is in addition to Ms Teague' continued failure to file material for the Arbitration Conference/Hearing pursuant to my Directions dated 15 July 2025.

• [8] Section 399A of the Act provides as follows:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

• [9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Ms Teague did not file any material in opposition to the s.399A application, I will determine the s.399A application on the papers.

• [10] The power to dismiss an application if the non-compliance was unreasonable is discretionary. I confirm the Commission has at all times used the telephone number and email address nominated by Ms Teague in its attempts to contact her. Ms Teague has not responded to any of the attempts to contact her since the matter has been allocated to me. Ms Teague has had the opportunity to engage with the Commission's processes but has failed to progress the prosecution of her case. Nor has she provided an explanation to the Commission for either her continued failure to comply with the 15 July 2025 Directions or her failure to attend the telephone Mention on 18 July 2025.

• [11] In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss Ms Teague' unfair dismissal application. Firstly, I am satisfied that Ms Teague unreasonably failed to attend the telephone Mention on 18 July 2025. Ms Teague was advised of the telephone Mention in advance via the contact details she had provided to the Commission and yet she made no response to the Commission's attempts to contact her before, at the time of or after it. Secondly, I am satisfied Ms Teague has unreasonably failed to comply with both my direction to respond to the s.399A application and my 15 July 2025 Directions which required that she file and serve her material for the Arbitration Conference/Hearing. There has at no stage been a response to Commission communications from Ms Teague outlining that she has not be able to either attend Commission proceedings or comply with directions. This pattern of inaction persuades me that this is a case in which it is appropriate to exercise the discretionary power in s.399A.

• [12] My determination to exercise my discretion and dismiss Ms Teague' unfair dismissal application pursuant to s.399A brings it to an end. An Order[1] to this effect will be issued with this Decision.

[1] PR790450.

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