s.394 - Unfair dismissal

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

[1] On 14 October 2025, Ms Eileen O'Neil (O'Neil) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by The Trustee For N & J Swan Traffic Trust (Swan Traffic Trust).

[2] Section 1 of the Form F2 - Unfair Dismissal Application filed by the Ms O'Neil indicated that the Application was made outside of the 21 days. An unfair dismissal application must be lodge with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.

[3] On 2 December 2025, the Application was allocated to my Chambers for determination.

[4] Directions were issued to parties on 10 December 2025 (Directions). The Directions required Ms O'Neil to file by 4pm (AWST) Thursday 18 December 2025 her materials in relation to the question of whether the FWC should grant her an extension of time to file the Application. The parties were advised that compliance with the Directions was mandatory.

[5] Ms O'Neil failed to file the materials by the required date and time as set out in the Directions.

[6] On 19 December 2025, Chambers wrote to Ms O'Neil and reminded her that her materials in relation her application for an extension of time were overdue.

[7] On 24 December 2025, Swan Traffic Trust made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms O'Neil failed to comply with the Directions (Dismissal Application).

[8] On 24 December 2025, Ms O'Neil was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Monday 29 December 2025. Chambers advised Ms O'Neil that if she did not file any such submissions or evidence by 4pm (AWST) Monday 29 December 2025, the Application would be dismissed pursuant to section 399A of the FW Act.

[9] No materials were filed in accordance with the Directions, and no submissions or evidence were filed in relation to the Dismissal Application by Ms O'Neil by 4pm (AWST) Monday 29 December 2025.

(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 other 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] Ms O'Neil failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision, Ms O'Neil has still not filed any materials in support of the Application or in response to the Dismissal Application. Ms O'Neil has not sought an extension to file her materials in support of the Application or in response to the Dismissal Application. I am satisfied that Ms O'Neil has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of Swan Traffic Trust and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

• [12] An Order[1] to this effect will be issued with this decision.

[1] PR795603.

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