s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy; applicant failed to follow Directions or respond; application dismissed

[1] On 24 December 2025, Elizabeth Wylie made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) against Woolbrae Equine Pty Ltd (the Respondent) seeking a remedy in respect to unfair dismissal.

[2] The application was allocated to my chambers on 7 January 2026 after having earlier been the subject of a conference organised by the Fair Work Commission's conciliation service at which the matter was not resolved.

[3] I issued written Directions in relation to the conduct of the matter on 12 January 2026. The Directions required, among other things, Ms Wylie to file and serve materials in relation to her case by 4:00PM on 6 February 2026. This did not occur.

[4] On 10 February 2026 my chambers contacted Ms Wylie and asked that she provide the Commission with a response as to why she had not complied with Directions made in relation to her case, by 4:00PM 12 February 2026. The email advised that a person who makes an unfair dismissal claim who fails to follow the Commission's instructions about their case risks their case being dismissed.

[5] No response was received from Ms Wylie by 12 February 2026. A further email was sent on 13 February 2026 advising Ms Wylie she had a final opportunity to contact the Commission to explain why she had failed to comply with Directions made about her case. This response was due by 10:00AM on Monday 16 February 2026. A text message was also caused to be sent to the number provided in her application, urging her to check her email. No response was received.

[6] On 16 February 2026 I contacted the Respondent advising that in the circumstances, I intended to list the matter for mention or was willing consider any application it may wish to make pursuant to s 399A of the Act that the matter be dismissed. I advised such an application could be made by confirming such in a reply email.

[7] On 16 February 2026 the Respondent advised my chambers by email it seeks that Ms Wylie's application be dismissed. I am prepared to treat this email as an application made pursuant to s 399A of the Act that the application be dismissed on the basis Ms Wylie has failed to comply with directions made by the Commission.

[8] Section 399A(1) of the Act provides that the Commission may, subject to an application being made by an employer, dismiss an application under Division 4 of Part 3-2 of the Act if the Commission is satisfied that the applicant has unreasonably failed to attend a conference or hearing held by the Commission, or failed to comply with a direction or order of the Commission relating to the application.

[9] In this matter, Ms Wylie has failed to comply with Directions made for the conduct of her matter. She has been provided with several reminders to do so and requests that she explain her conduct, to no avail. It appears likely she does not intend to comply with these Directions, explain her conduct or otherwise participate in this matter.

• [10] The right of an employee to bring a case relating to the dismissal of their employment should not be lightly curtailed by proceedings being dismissed at a preliminary stage[1]. At the least, procedural fairness must be provided, and the employee afforded an opportunity to explain the apparent non-compliance which will inevitably be the subject of the employer's application. In Lockyear v Cox[2] a Full Bench of this Commission set out a process which might be followed in the exercise of the Commissioner's discretion pursuant to s 399A of the Act which is similar to that which I have adopted in this matter.

[11] I consider that Ms Wylie has been provided with procedural fairness, having been provided with several opportunities to respond to the Directions of the Commission and explain her conduct, and has not done so. Two forms of contact have been used - email and text message.

[12] On the basis of the material before me, I am satisfied Ms Wylie's failure to comply with the Directions made for the conduct of this matter are unreasonable. There has been no explanation provided for her failure to comply with those Directions.

[13] Mr Wylie's application is dismissed, and an Order will be issued to that effect.

[1] Meiyun Xue v Serco Australia Pty Limited [2025] FWCFB 75 [19]

[2] [2021] FWCFB 875

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