s.394 - Unfair dismissal

The Trustee For The Marryatville Pharmacy Trust

Application under s. 399A - Failed to attend a hearing held by the FWC in relation to the application - s. 399A application granted

[1] The Trustee For The Marryatville Pharmacy Trust (Marryatville Pharmacy Trust) made an application under s. 399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application brought against it by Ms Isabella Capogreco.

[2] For the reasons set out below, Marryatville Pharmacy Trust's application is granted and Ms Capogreco's application for an unfair dismissal remedy is dismissed.

[3] On 10 September 2025, Ms Capogreco lodged an unfair dismissal application under s. 394 of the Act, alleging she was unfairly dismissed by Marryatville Pharmacy Trust.

[4] Marryatville Pharmacy Trust filed a response to the application on 25 September 2025, which detailed that only nine (9) employees were employed with the business at the time of the dismissal.

[5] The matter was listed for a staff conciliation on 28 October 2025, which was unable to proceed as the Applicant did not attend.

[6] Upon being allocated the matter, a Directions Hearing was held on 8 December 2025 to set the matter down for determination. The Hearing was attended by Ms Capogreco and Marryatville Pharmacy Trust's representative.

[7] At the Hearing, Ms Capogreco stated she did not want to proceed with the matter, and confirmed she wished to file a Notice of Discontinuance.

[8] Chambers emailed Ms Capogreco a Form F50 alongside written Directions advising her to file material by Monday 22 December 2025, or to complete and return the attached Form F50 if she wished to discontinue the matter.

[9] On 19 December 2025, Chambers reminded Ms Capogreco that she was directed to file materials by 22 December 2025 or advise of her discontinuance by reply email. Ms Capogreco did not file any materials, nor did she correspond with Chambers.

[10] On 31 December 2025, the matter was subsequently listed for a Non-compliance Hearing on 5 January 2026. Mr Nguyen attended the Hearing for the Respondent. Ms Capogreco did not attend or respond to calls from Chambers.

[11] At the Hearing, Mr Nguyen made an oral application for the Commission to dismiss Ms Capogreco's application to remedy an unfair dismissal on the basis that she unreasonably failed to attend a Hearing listed before the Commission in relation to her application.

• [12] I determined to waive the irregularity in the manner in which an application was made to the Commission[1] and accepted Mr Nuygen's application orally on transcript to allow the matter to be dealt with in a quick, informal manner that avoids unnecessary technicalities.[2]

[13] On 5 January 2026, Chambers advised Ms Capogreco of Marryatville Pharmacy Trust's application and directed her to file a response or any objections to the application by 12 January 2026.

[14] The correspondence further advised that the Commission would proceed to deal with the application on the material before it if Ms Capogreco failed to respond to the application.

[15] Ms Capogreco did not raise an objection or correspond with Chambers.

• [16] As set out below, the process set out in Lockyear v Cox[3] for s. 399A applications has occurred in the present matter.

[17] Marryatville Pharmacy Trust made an application for s. 399A at the Non-compliance Hearing on 5 January 2026. Ms Capogreco was notified of the application, the basis for the application and given an opportunity to respond to it. Further, Chambers advised Ms Capogreco that the Commission will proceed to deal with the application should she fail to respond to it.

[18] Ms Capogreco did not file any materials opposing the application made under s. 399A of the Act, or any materials at all.

[19] Accordingly, there were no facts in dispute and a Hearing was not required.

[20] Ms Capogreco has unreasonably, without explanation, failed to attend the Non-compliance Hearing on 5 January 2026 in relation to her unfair dismissal application.

[21] I am satisfied that Ms Capogreco was afforded ample opportunities to provide reasons for her failure to attend the Hearing.

[22] An opportunity was given to oppose the application under s. 399A of the Act made by Marryatville Pharmacy Trust, but Ms Capogreco did not take any action.

[23] For those reasons, Marryatville Pharmacy Trust's application under s. 399A of the Act is granted.

[24] Ms Capogreco's application to remedy an unfair dismissal is dismissed pursuant to s. 399A (1) of the Act.

• [25] An order giving effect to this decision will be issued in conjunction with its publication.[4]

[3] [2021] FWCFB 875 at [57].

[4] PR796115.

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