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 - application dismissed

• [1] On 28 July 2025, Mr Darren Zarb (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (UFD Application).

• [2] On 2 October 2025 the UFD Application was allocated to my Chambers.

• [3] The matter was listed for a case management and directions hearing on 10 October 2025. The Applicant failed to attend that hearing. During the hearing, Actron Engineering Pty Ltd (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 Applicant unreasonably failed to attend a conference or hearing before the Commission.

• [4] I accepted the oral 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]).

• [5] On 10 October 2025, my Chambers sent correspondence to the Applicant seeking an explanation for his failure to comply with the directions. On 13 October 2025, the Applicant provided a response in which he stated he was not aware of the listing as the emails from my Chambers had been captured in the spam folder of his email account.

• [6] I subsequently listed the matter for a further mention and directions hearing on 22 October 2025 to deal with the progression of the 399A Application. Shortly before the commencement of that hearing, the Respondent forwarded correspondence to my Chambers that it received from the Applicant which noted the Applicant wanted to withdraw his UFD Application.

• [7] The Applicant did not attend the mention and directions hearing.

• [8] The correspondence sent by the Applicant to the Respondent was not sufficient to meet the requirements of a discontinuance (see Rule 10.2 of the FWC Rules). Therefore, at the conclusion of the mention and directions hearing, correspondence was sent to the Applicant as follows:

I refer to the above matter and the correspondence below.

Again, you have failed to attend a hearing before the Commission.

Furthermore, the Respondent has provided correspondence to the Commission which you had sent indicating that you no longer wish to proceed with your application (see attached email).

1. Confirm whether you wish to proceed with the Application.

2. If so, provide an explanation for your no attendance earlier today.

You must provide your response by no later than 4:00pm on Friday 24 October 2025. If you fail to provide a response by that time, or provide an unsatisfactory response, your application may be dismissed without further notice to you.

• [9] The Applicant did not provide any response to the above correspondence.

• [10] Section 399A of the FW 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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."

• [11] In Thomas v Highway NN Pty Ltd[1], Deputy President Sams set out the approach to the exercise of the power to dismiss an application pursuant to s.399A as follows:

[14] Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application. It is not in dispute that the applicant failed to attend Commission conferences on two occasions, knowing full well the ramifications of not doing so. Therefore, this decision rests primarily on my discretionary power as to whether I should dismiss this application as a result of the applicant's non-compliance.

• [12] In relation to the 399A Application, I am satisfied that it was made by the Respondent in accordance with s.399A(2). I am also satisfied that the Applicant's failure to attend the conference and hearing before the Commission on 22 October 2025 without advising the Commission was unreasonable.

• [13] As the jurisdictional pre-requisites have been met, I now turn to whether I should exercise my discretion.

• [14] In Thomas v Highway NN Pty Ltd, Deputy President Sams stated:

[15] It has been long held by the Courts and this Commission that the power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is so because it results in the extinguishment of a party's application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her 'day in court'.

• [15] The cautious approach to dismissing a substantive application for relief was reiterated by a Full Bench of the Commission in Lockyear v Graeme Cox.[2]
• [16] In Viavattene v Health Care Australia,[3] a Full Bench of the Commission stated:

[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained "substantial arguments in response to the Applicant's contentions". There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended "to ensure that a 'fair go all round' is accorded to both the employer and employee concerned" (s.381).[4]

• [17] Although the Applicant provided an explanation for his non-attendance on 10 October 2025, he has subsequently failed to attend proceedings and has not responded to correspondence from my Chambers seeking an explanation for that. Furthermore, the Applicant has informed the Respondent that he wishes to withdraw the UFD Application.

• [18] Having regard to those circumstances, which demonstrate an unwillingness by the Applicant to participate in proceedings he commenced, 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 UFD Application.

• [19] For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

• [20] The UFD Application is dismissed pursuant to s.399A(1)(a) of the FW Act. An order to that effect will be issued with this decision.

[1] Thomas v Highway NN Pty Ltd [2020] FWC 3911 at [14].

[2] [2021] FWCFB 875 at [58].

[3] [2013] FWCFB 2532.

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