s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Application made under s.399A of the Fair Work Act - Failure to comply with directions - Failure to attend hearing - Application dismissed

• [1] On 3 February 2025, Mr Jack French (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed from his employment with Tree ACQ Pty Ltd Trading As MPDT (the Respondent).

• [2] The Applicant failed to attend the staff conciliation scheduled at 9:15am on 3 March 2025. Later that day, the Applicant contacted the Fair Work Commission (the Commission) explaining that he missed the conciliation conference because he has a new mobile number. The matter was then referred to me for determination of the Respondent's jurisdictional objections that the Applicant was not dismissed, the Applicant abandoned his employment on 19 December 2024 and therefore the application is also filed outside the 21-day statutory timeframe.

• [3] On 13 March 2025, my Chambers emailed the parties a Notice of Listing for a case management conference/hearing (Mention/Directions) for 3:00pm on 18 March 2025 by Microsoft Teams. The Respondent attended the Mention/Directions, the Applicant had not joined by the scheduled start time. My Chambers emailed the Applicant at 3:00pm requesting he join and then called the Applicant (on his new mobile number). The Applicant answered the phone call and said he had a matter before the Commission but was unsure on the next steps. The Applicant was advised that the next steps will be discussed at the Mention/Directions and it was explained to him how to join the proceeding. The Applicant joined the Mention/Directions but was on mute, did not have his camera on and was unresponsive. The Applicant then left the Mention/Directions. My Associate made numerous attempts to call the Applicant without success and also emailed him requesting he rejoin the Mention/Directions. The Applicant did not rejoin.

• [4] I subsequently listed the matter for a hearing on 16 April 2025 and issued directions for the filing of materials. The Applicant was required to file an outline of argument, statement of evidence and other material on which he sought to rely on in support of his application by 4:00pm Wednesday, 26 March 2025.

• [5] The Applicant failed to file his materials. On 27 March 2025 I instructed Chambers to issue a warning via email to the Applicant regarding his non-compliance with my directions. The Applicant was directed to provide an explanation for failing to comply and to file and serve the outstanding materials by no later than 4:00pm Friday, 28 March 2025. The email indicated that if the Applicant did not provide a reason or the overdue materials by 4:00pm Friday, 28 March 2025, then his application was at risk of being dismissed by the Commission on its own initiative under s.587 of the Act or on application by the Respondent under s.399A of the Act.

• [6] The Applicant did not provide reasons or file his materials by the new deadline. An email was sent to the parties listing a non-compliance hearing on Tuesday, 1 April 2025 at 9:00am. On the same day, the Respondent made an application, via a form F1, to dismiss the matter under s.399A of the Act.

• [7] The Respondent attended the non-compliance hearing at 9:00am on Tuesday, 1 April 2025. The Applicant did not attend, and my Chambers emailed and made attempts to call the Applicant. The Applicant's phone was answered by a friend of the Applicant who explained the Applicant was at work and cannot reach his phone because he is on the other side of a paddock. The friend said he will get the Applicant to return the phone call in ten to fifteen minutes. The Applicant did not return the phone call or make any contact with my Chambers.

• [8] Following the Applicant's non-attendance at the non-compliance hearing, I instructed Chambers to email the Applicant informing him that unless he provides sufficient reasons why the matter should proceed, explain why he failed to attend and provide the overdue materials by no later than 9:00am Tuesday, 2 April 2025, then I intended to grant the Respondent's application under s.399A to dismiss the unfair dismissal application for reasons of failure to comply with the Commission's directions and attend a hearing conducted by the Commission.

• [9] Section 399A of the Act provides as follows:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application."

• [10] The Applicant has not engaged. Despite initially contacting the Commission to provide his new phone number and connecting to the Mention/Directions but being unresponsive, leaving and then being unresponsive, the Applicant has not responded to correspondence, has not provided reasons for his failure to comply or attend the non-compliance hearing.

• [11] I am satisfied the Applicant has unreasonably failed to attend a hearing and unreasonably failed to comply with a direction of the Commission.

• [12] As such, I have the discretion to dismiss his application, and I consider it appropriate to do so under s.399A of the Act.

• [13] I order that the application for an unfair dismissal remedy made by Mr Jack French on 3 February 2025 be dismissed under s.399A of the Act.

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