s.394 - Unfair dismissal

Application to deal with contraventions involving dismissal - Applicant did not participate in proceedings - no reasonable prospects of success - dismissed pursuant to s. 587 of the Fair Work Act 2009.

[1] On 6 August 2025, Ms Jacinta Clarke lodged an unfair dismissal application under s. 394 of the Fair Work Act 2009 (the Act), alleging that she was unfairly dismissed by Estia Investments Pty. Ltd (Estia).

[2] Estia filed a response to the application on 27 August 2025, objecting to the application on the basis that Ms Clarke's employment did not meet the minimum employment period.

[3] A Directions Hearing was held on 1 December 2025 to set the matter down for determination. The Hearing was attended by representatives for Estia, however, was not attended by Ms Clarke.

[4] The Commission attempted to call Ms Clarke by telephone twice, with Ms Clarke initially answering the call. However, Ms Clarke subsequently terminated the call and did not answer the second call. No message was able to be left for her.

[5] On 1 December 2025, the Commission issued a written copy of the Directions, which directed:

• Estia to file materials in support of its jurisdictional objection that the Applicant has not met the minimum employment period under s. 383 of the Act by Monday, 8 December 2025.
• Ms Clarke to file materials in reply to the jurisdictional objection by Monday, 15 December 2025.
• The parties to attend a Hearing on Tuesday, 6 January 2026.

[6] Estia submitted its materials to the Commission as directed on 9 December 2025. However, Ms Clarke did not file any submissions by 15 December 2025 or otherwise contact the Commission.

[7] Ms Clarke was directed to file her outstanding submissions as soon as possible, by no later than 16 December 2025, but failed to do so.

• [8] Following this, Ms Clarke was advised by email that the Commission may dismiss her application on its own motion for ongoing failures to participate in the process.[1] Ms Clarke again did not file any materials or contact the Commission.

[9] Section 587 of the Act provides:

(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.

• [10] The Commission is not required to persevere with an application where an Applicant's conduct clearly demonstrates that they are unwilling to participate in their own case.[2]

[11] Ms Clarke has unreasonably, without explanation, failed to take any steps to pursue her case since making the application. I am satisfied that Ms Clarke was afforded ample opportunity to provide reasons for her non-compliance and non-attendance before the Commission but has failed to do so.

[12] Having considered the provisions set out in s 587 of the Act and the factual circumstances of the case I am satisfied that the application has no reasonable prospect of success.

[13] Accordingly, I order that Ms Clarke's application to remedy an unfair dismissal is dismissed pursuant to s. 587(3)(a) of the Act.

• [14] An Order giving effect to this decision is issued.[3]

[1] Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16].

[2] Viavattene v Health Care Australia [2013] FWCFB 2532 at [39].

[3] PR796027.

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