Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - dismissal for want of prosecution - application dismissed.

• [1] On 4 May 2025, Ms Helene Pohlman applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for the Commission for unfair dismissal remedy due to her dismissal from her employment with Kangaroo Care Pty. Ltd. (Kangaroo).

• [2] Ms Pohlman was a casual employee. Kangaroo's Form F8C objected that she was not dismissed from her employment. Kangaroo claimed her shifts had ceased due to operational changes and it had attempted to engage with her by arranging a meeting, which she had failed to attend. Kangaroo claims this does not constitute dismissal. This also raised concerns as to whether the Applicant was protected from unfair dismissal as due to the nature of her work she may not have been a regular casual employee.

• [3] I subsequently listed the matter for a case management conference for direction via Microsoft Teams on 2 July 2025 to explain and discuss next steps to the parties, as well as issue directions. The parties were required to confirm their attendance by 1 July 2025.

• [4] Ms Pohlman did not confirm her attendance for the conference. On 1 July 2025, my Chambers sent a follow-up email seeking confirmation from Ms Pohlman. Ms Pohlman did not reply. My Chambers sent a further email on the morning of 2 July 2025, to which Ms Pohlman did not reply.

• [5] Ms Pohlman did not attend the conference on 2 July 2025. My Associate attempted to contact Ms Pohlman by phone at 10:01 and 10:05 AM, leaving a voice message. Ms Pohlman did not return the call or otherwise respond.

• [6] Following Ms Pohlman's non-attendance, I issued directions and a notice of listing for hearing on 23 July 2025. Ms Pohlman was directed to file her submissions in relation to the jurisdictional objection on 16 July 2025.

• [7] Kangaroo was granted a short extension to file submissions, and on 11 July 2025 my Chambers enquired with Ms Pohlman as to whether she would require a shot extension as well. Ms Pohlman did not respond to this enquiry.

• [8] On 17 July 2025 at 9:11am, as Ms Pohlman did not comply with my directions, my Associate sent the following email to the parties:

As per the directions issued by Commissioner Durham on 2 July 2025, your material was due to be filed with the Commission, and served on the Respondent, by 16 July 2025.

The Commission has not received any material from you, nor has it received a request for an extension.

Please advise by 4:00pm today, 17 July 2025, why material your material has not been filed in accordance with the Commissioner's directions.

Failure to comply with these directions will result in the Commissioner making a decision based only on the material that has been provided and the matter being determined in your absence without further notice and a decision adverse to your interest may also be made."

• [9] No response was received from Ms Pohlman regarding the above email.

• [10] On 18 July 2025, as no response was received from Ms Pohlman, my Associate sent the following email to her:

Reference is made to the above matter and previous email sent to you from Chambers on 17 July 2025.

Noting the attempts to contact you via email and telephone regarding your non-compliance of the Commissioner's Directions (attached), Chambers has still not received a response from you.

It is further noted that you did not attend the conference on 2 July 2025.

You have made no attempt to contact the Chambers of Commissioner Durham to explain the reasons for non-compliance regarding the Directions nor provided any reason or communication as to why you did not attend the conference.

The Commissioner directs you to provide your reason, in writing, for failing to comply with Directions by close of business today, 18 July 2025. If no explanation is received from you, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

If you do not wish to continue with your application, please advise as such."

• [11] On 21 July 2025, as no response was received from Ms Pohlman, my Associate attempted to contact Ms Pohlman at 2:18pm by telephone however the call went unanswered.

• [12] To date, no correspondence or telephone contact has been received from Ms Pohlman.

• [13] Section 587 of the 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

(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:

• [14] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

• [15] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

• [16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Pohlman has failed to comply with directions and respond to various correspondence from Chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Pohlman has shown no willingness to prosecute her case and has taken no steps to do so.

• [17] In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the Applicant has failed to prosecute their case without examining the merits.

• [18] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant's application for want of prosecution pursuant to s.587(3)(a) of the Act.

• [19] An order to that effect will issue with this decision.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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