Corrected five typographical and grammatical errors

Fair Work Act 2009

s.394 - Unfair dismissal

Application to deal with contraventions involving dismissal - application dismissed pursuant to s 587

• [1] On 25 July 2025, Mr Goce Koroskoski (Mr Koroskoski) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Bluescope Steel limited (Bluescope).

• [2] On 2 August 2025, Bluescope filed a Form F3 - Employer response to unfair dismissal application and did not raise any jurisdictional objections.

• [3] On 23 September 2025, the Application was allocated to my Chambers for determination.

• [4] Directions were issued to parties on 30 September 2025 (Directions). The Directions required Mr Koroskoski and Bluescope to file by 4pm (AWST) Thursday 9 September 2025 an agreed statement of facts and law. The parties were advised that compliance with the Directions was mandatory.

• [5] On 8 October 2025, Mr Koroskoski's representative, Law on Lydiard emailed Chambers advising that the parties were involved in settlement negotiations and requesting the Directions and scheduled conference be vacated. On the same day, Chambers advised the parties that the Directions would only be vacated upon advice from both parties that there is a signed settlement deed or an agreement of finality. Chambers did not receive a response from either party.

• [6] Mr Koroskoski and his representatives failed to file any materials in accordance with the Directions or seek an extension to do so within the timeframes set out in the Directions.

• [7] On 10 October 2025, Chambers wrote to Mr Koroskoski and informed him that the Deputy President proposed to dismiss the Application on the grounds that in the absence of him filing any materials the Application had no reasonable prospect of success. Mr Koroskoski was directed to provide reasons as to why the Application should not be dismissed. Mr Koroskoski was also directed to file the materials set out in the Directions.

• [8] On 15 October 2025, Chambers emailed the parties advising that no response has been received from the email referenced in paragraph [7] and the Deputy President proposed to dismiss the Application. Law on Lydiard emailed Chambers advising that a settlement agreement was in the process of being executed.

• [9] On 24 October 2025, Chambers wrote to Mr Koroskoski and his legal representative. Law on Lydiard inviting them to file a Form F50 - Notice of Discontinuance. Chambers did not receive a response.

• [10] Section 587 of the FW Act provides as follows:

(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] Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[1] (Tomas) 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.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter."

• [12] 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.

• [13] 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. The power to dismiss a substantive application should only be exercised cautiously and sparingly because ordering the dismissal of an application would result 'in the complete extinguishment of an applicant's right to have her application for relief orders under beneficial legislation, heard and determined according to law'.[2]

• [14] However, in all of the circumstances, I am satisfied that Mr Koroskoski and his legal representatives, Law on Lydiard, were aware of what was required of him regarding compliance with the Directions. Despite being given opportunities to engage with the FWC in regard to the filing of materials Mr Koroskoski has failed to file any materials in support of the Application or provide any reasons as to why the Application should not be dismissed.

• [15] Due to the history of non-compliance, I am not satisfied that Mr Koroskoski is likely to comply with further directions of the FWC.

• [16] In the circumstances, and on balance, it is appropriate that the Application be dismissed for want of prosecution under section 587 of the Act.

• [17] An order[3] to this effect will issue with this Decision.

[1] [2011] FWA 5458.

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

[3] PR793041.

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