s 394 - Unfair dismissal

Application for an unfair dismissal remedy - Applicant failed to attend hearing failed to prosecute application - application has no reasonable prospects of success - application dismissed pursuant to s 587 of the Act.

• [1] On 20 November 2024 Mr Darren Powell (the Applicant) applied under s.394 of the Fair Work Act (the Act) for a remedy for alleged unfair dismissal. On 2 December 2024 UYG Property Services (the Respondent) lodged a response to the application, denying that the Applicant had been unfairly dismissed. The matter was allocated to my Chambers on 3 February 2025.

• [2] My Chambers programmed a conciliation conference which was held on 19 February 2025, but the parties were unable to agree settlement terms. As such, the matter was scheduled to proceed to hearing on 1 April 2025. However, the Applicant failed to lodge any submissions by the required time. My Chambers wrote to him seeking his reasons for non-compliance and advised the parties that the 1 April 2025 hearing date would be vacated to allow the Applicant to provide his submissions and allow the Respondent to make a reply.

• [3] As it transpired, the email address in use for the Applicant was not operational. As such, there was a period during which correspondence from the FWC was not received by the Applicant. Once this issue was resolved, the Applicant advised that he intended to rely on the information in his originating application and an additional document - which was lodged - as his submissions.

• [4] At this point in proceedings the Respondent sought to have the application dismissed on the basis of the Applicant's failure to comply with directions. I wrote to parties and advised that I accepted that there had been an issue with email addresses and as such in the interests of fairness I did not intend to apply a sanction to the Applicant.

• [5] The matter was then re-listed for hearing on 16 May 2025. On 15 May 2025 the parties were sent a copy of the Court Book prepared by Chambers. At the appointed time on 16 May 2025 the Respondent and the Respondent's witness were in attendance, but the Applicant did not appear. My Chambers sent him an email and left two telephone messages but after 20 minutes I determined that it was unlikely that he would attend. I therefore resolved to have the Respondent's witness sworn in so that I could confirm various elements of her evidence. From that evidence I was satisfied that the Applicant's dismissal was a case of genuine redundancy.

• [6] I then adjourned the hearing and caused my Chambers to send the following email to the parties at 11.49am on 16 May 2025:

Deputy President O'Keeffe notes your non-attendance at this morning's hearing of your unfair dismissal application. Attempts were made to contact you by telephone and email but no response was received. Non-attendance at a hearing is a particularly serious matter in the absence of a compelling reason supported by evidence.

In your absence, the Deputy President conducted a short determinative conference whereby Ms Pinnington was sworn in so that the Deputy President could question her about her evidence regarding your dismissal and her answers would be given under oath.

From her evidence, which the Deputy President accepts, it appears that UYG Pty Ltd lost a major contract in Port Hedland and this loss of contract was the primary reason for your dismissal. In such circumstances, the termination might be regarded as a genuine redundancy if it met the pre-conditions set out in s.389 of the Fair Work Act. That section provides as follows:

389 Meaning of "genuine redundancy"

(1) A person's dismissal was a case of genuine redundancy if:

a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: the employer's enterprise; or the enterprise of an associated entity of the employer.

In your case, the loss of the contract would appear to satisfy point (1)a). The Respondent submitted and the Deputy President concurs that the nature of your role is such that there is no award or agreement covering your employment. As such, the Deputy President's view is that point (1)b) is not relevant.

The Deputy President further accepts the evidence of Ms Pinnington that UYG Pty Ltd is a small business, employing only eight persons. He questioned Ms Pinnington about the possibility of redeployment for you and he accepts her response that it would not have been possible. Given this, he takes the view that point (2) is not applicable in your circumstances.

Given the above, it appears to the Deputy President that there is a strong prima facie argument for your termination to be regarded as a genuine redundancy. If this were to be the case, then your unfair dismissal application would be incapable of proceeding due to s.385(d) of the Fair Work Act. As such, the present situation is one where you have failed to attend the scheduled hearing for your application, and it appears that the Commission in all likelihood does not have jurisdiction to hear the case.

In these circumstances, the Deputy President is of the view that your application can be dismissed under s.587 of the Fair Work Act because you have failed to prosecute your application - by virtue of your non-attendance at the hearing - and because additionally your application has no reasonable prospects of success.

However, before dismissing your application you are invited to make a written response to Chambers, which should be received by no later than 4.00pm (AWST) Monday 19th May 2025. Such response should provide:

a) A credible reason - with evidence - as to why you were unable to attend the hearing; and

b) Written submissions as to why your termination should not be regarded as a genuine redundancy. Such submissions must address the criteria in s.389 of the Fair Work Act as set out above.

You are advised that if no response is received by the required time, your application will be dismissed with no further opportunity for you to make submissions. If you do make a response, the Deputy President will consider it and advise as to how he intends to proceed."

• [7] Shortly prior to the email being sent, the Applicant contacted Chambers and claimed that he had mistaken the correct time for the hearing albeit that I note that his call was received at a time after the point in time he had apparently thought was correct. My Associate advised him that he would be receiving an email in the near future setting out the FWC's position.

• [8] No response was received from the Applicant by 4.00pm (AWST) on 19 May 2025 and indeed no response had been received twenty-four hours later. Given this, I am satisfied that the Application should be dismissed.

• [9] Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521. In this instance, the Applicant has failed to attend a hearing and thus failed to prosecute his claim without reasonable excuse. Further, such evidence as had been provided under oath satisfies me that his case has no reasonable prospects of success on the basis that his dismissal was a case of genuine redundancy.

• [10] In these circumstances, I am persuaded to exercise my powers under s587 to dismiss the application. An order to that effect will issue.

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