s.394 - Application for unfair dismissal remedy

[1] On 20 December 2025, Ms Ema Denby (Ms Denby) 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 Curtin University (Curtin University).

[2] On 11 February 2026, Curtin University filed a Form F3 - Employer response to unfair dismissal application raising the Jurisdictional Objection that the Application is out of time and Ms Denby was not dismissed.

[3] On 24 March 2026, the Application was allocated to my Chambers for determination.

[4] Directions were issued to parties on 24 March 2026 (Directions). The Directions required Ms Denby to file by 4pm (AWST) Thursday 2 April 2026 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 Denby failed to file the materials by the required date and time as set out in the Directions.

[6] On 2 April 2026, Chambers wrote to Ms Denby and reminded her that her materials in relation her application for an extension of time were overdue.

[7] Ms Denby did not file any further materials.

[8] On 7 April 2026, Chambers wrote to Ms Denby warning her that in the absence of her complying with the Directions it was proposed that her application be dismissed pursuant to section 587 of the Fair Work Act.

[9] Ms Denby was invited to make submissions providing reasons as to why the FWC should not dismiss the Application and evidence or other documentary material supporting those reasons by 4pm (AWST) 8 April 2026**.** Ms Denby was informed that if she wished to also make oral submissions in relation to the proposed dismissal of the Application she must advise Chambers by 4pm (AWST) 8 April 2026.

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [11] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.[1]

• [12] The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

• [13] In Mcleod v Kulgera Trading Company Pty Ltd,[3] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

• [14] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[4] in which she stated:

"[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons."

• [15] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.[5]

[16] The Directions set out clearly what Ms Denby was required to file and when.

[17] There is no medical evidence before me to suggest that Ms Denby is unable to prepare her materials or provide instructions to a representative to prepare them on her behalf.

[18] As at the date of this decision Ms Denby has filed no further materials and has not indicated that she has any intention to file anything.

[19] I therefore dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above.

• [20] An Order[6] to this effect will be issued with this decision.

[2] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

[3] [2014] FWC 2112.

[4] [2011] FWA 5458.

[5] See for example: Application by Monserrarah Duke [2021] FWC 5319, Application by Hang Li [2021] FWC 5348

[6] PR798591

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