s.394 - Unfair dismissal

Application for unfair dismissal remedy - s.399A application - Failure to comply with directions of the Commission and attend conference - Application dismissed

• [1] This decision concerns an application made under s.399A of the Fair Work Act 2009 (the Act) by Serco Australia Pty Limited (the Respondent) to dismiss an unfair dismissal application brought against it by Jarrad Johnson (the Applicant).

• [2] For the reasons that follow, the Respondent's application under s.399A is granted, and the Applicant's application for an unfair dismissal remedy is dismissed.

• [3] On 13 May 2025, the Applicant applied to the Fair Work Commission ('Commission') for a remedy for unfair dismissal under s.394 of the Act. The Applicant lodged this application by way of a Form F2 - Unfair Dismissal Application ('substantive application') which claimed that the Respondent had terminated the Applicant's employment on 16 April 2025.

• [4] On 15 May 2025, the Commission contacted Mr Johnson by email and on 16 May 2025 by text message to request payment of the application fee. Mr Johnson was also contacted by telephone, with no contact made, and a voice message left confirming that his application required payment to proceed, and to advise that his application had been lodged out of time and to confirm whether he wished to continue with his application.

• [5] On 27 May 2025, the Commission again contacted the Applicant by email advising that his application fee remained unpaid, and his application would not progress whilst it remained unpaid.

• [6] On 4 June 2025, the Commission contacted the Applicant by telephone, with no contact made, and a voice message was left advising that payment of the application fee was required by close of business on 5 June 2025, or the application risked being referred to a Member and dismissed without further notice.

• [7] On 2 July 2025, the Commission wrote to the Applicant advising that the application fee remained unpaid, and the claim could not continue until this fee was paid or waived in line with Commission procedures. On 3 July 2025, the application fee was paid.

• [8] On 16 July 2025, the Commission wrote to the Applicant advising that their application had been lodged 6 days beyond the statutory deadline to file an unfair dismissal application, and requesting an indication of the exceptional circumstances which were the basis for the late application. The Applicant was requested to reply by 23 July 2025. No response was received.

• [9] On 10 September 2025, the Commission wrote to the Applicant advising that as the Commission had not received a response to correspondence on 16 July 2025 it appeared that he was no longer pursuing his unfair dismissal claim. The Applicant was advised that if he failed to respond to this correspondence by 17 September 2025 the application would be dismissed under s.587 of the Act. On the same day, the Applicant responded via email and confirmed his intention to continue with his unfair dismissal application and pursue his entitlements in relation to redundancy and long service leave. The Respondent was copied into this correspondence.

• [10] On 18 September 2025, the matter was allocated to my Chambers, where I subsequently issued directions for the filing and service of evidence and materials in order to determine whether to grant the Applicant an extension of time to file his application. I listed the application for Case Management Conference (Mention/Directions) to take place at 2:00pm on 23 September 2025 by Microsoft Teams. A determinative conference/hearing was listed to take place on 9 October 2025 to determine the extension of time issue only. In the correspondence sent to parties with this Notice of Listing, the Applicant was directed to attend this Case Management Conference.

• [11] On 19 September 2025, my Chambers attempted to contact the Applicant to confirm receipt of the Notice of Listing. No contact was made; a voice message was left.

• [12] On 22 September 2025, my Chambers again attempted to contact the Applicant by telephone to confirm receipt of the Notice of Listing; again no contact was made and a voice message was left.

• [13] On the morning of 23 September 2025, my Chambers contacted the Applicant by telephone and text message to confirm attendance at the conference later that day. No contact was made with the Applicant and no response was received.

• [14] The Respondent attended the Case Management Conference (Mention/Directions) on 23 September 2025. The Applicant did not join the case management conference in time for its commencement, and my Chambers attempted to contact him by email and telephone. I stood the matter down for approximately 15 minutes to allow the Applicant time to attend. The Applicant did not attend and did not answer or respond to the call or email from my Chambers regarding their non-attendance. The Applicant was due to file their evidence and submissions with the Commission by 25 September 2025, in accordance with the directions issued on 18 September 2025. The Respondent foreshadowed their intention to file a s.399A application should the Applicant fail to file his materials in accordance with the directions.

• [15] The Applicant did not file any documents, evidence or submissions with the Commission by 25 September 2025. The Applicant did not approach my Chambers for an extension of time to do so.

• [16] On 29 September 2025, my Associate again attempted to contact the Applicant in relation to their ongoing matter before the Commission by telephone. The Applicant did not respond.

• [17] On 29 September 2025, the Respondent filed an application by way of Form F1 under s.399A of the Act to dismiss Mr Johnson's application on the grounds that the Applicant had unreasonably failed to:

a. Attend a conference conducted by the Commission in relation to the unfair dismissal application (s.399A(1)(a)); and

b. Comply with directions of the Fair Work Commission relating to the unfair dismissal application (s.399A(1)(b)).

• [18] The Respondent filed this application by email to my Chambers, to which the Applicant was copied.

• [19] On 29 September 2025, my Chambers sent an email to the parties drawing the Applicant's attention to the Respondent's s.399A application (and attaching the relevant application, correspondence and documents). This email vacated the directions issued on 18 September 2025, as well as the hearing date of 9 October 2025. This email also included amended directions, which directed the Applicant to file and serve evidence, submissions and documents in response to the Respondent's application to dismiss these proceedings by no later than 4:00PM on 7 October 2025. The Respondent was then provided until 4:00PM on 14 October 2025 to file in the Commission and serve copies on the Applicant of any evidence, submissions and documents in reply. This email indicated that the parties may request for the s.399A application to be listed for a hearing and that such a request must be made by no later than 15 October 2025. It stated that if no request was made the application would be dealt with on the papers, unless there were matters of contested fact arising from any filed evidence.

• [20] The Applicant did not file any evidence, submissions or documents in response to the s.399A application by 7 October 2025.

• [21] The Respondent filed submissions in support of its s.399A application on 15 October 2025.

• [22] In response to these submissions, the Applicant wrote to my Chambers on 15 October 2025 regarding their entitlements and saying that they assumed that the Respondent would "operate in good faith and pay what is owed." This communication did not address the reasons why the Applicant had not complied with the directions made by the Commission on 18 September 2025 and on 29 September 2025, nor why they had not attended the conference on 23 September 2025.

• [23] My Chambers wrote to the parties on 15 October 2025, and confirmed that the Applicant's correspondence from 15 October would, unless advised otherwise by 5pm that day, be taken to be the Applicant's submission in response to the s.399A application addressing his reason for failing to comply with directions and appear before the Commission. The Applicant was also reminded that he had until 5pm that day to request that the s.399A application be listed for hearing and that otherwise the Respondent's application to dismiss the Applicant's application would be dealt with on the papers, and a decision published on the Commission's website.

• [24] In response to this correspondence, the Applicant advised that he wished to pursue the matter, but would be happy for an external settlement with particular terms. No further evidence or submissions were made by the Applicant in response to the Respondent's s.399A application.

• [25] The Applicant has failed to file any material with the Commission in support of his substantive application in accordance with the original directions issued, or establishing why his application should not be dismissed in accordance with the subsequent amended directions issued on 29 September 2025.

• [26] 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.

(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.

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

• [28] As there were no issues of contested fact and no party requested a hearing of the matter by 15 October 2025, I will determine the application on the papers.

• [29] The Respondent's application relied upon ss.399A(1)(a) and (b). The former pertains to a ground to dismiss applications due to an unreasonable failure by an Applicant to attend a conference or hearing before the Commission.

• [30] In Lockyear v Cox,[1] a Full Bench considered s.399A and stated as follows:[2]

• [57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

1. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
2. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

1. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

1. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.

• [31] The Applicant was appropriately informed of the application to dismiss these proceedings on the day it was made by the Respondent. The Applicant has been given adequate opportunity to respond to the application, and the correspondence from the Commission clearly identified that the Commission would proceed to determine the application to dismiss these proceedings in the absence of a response from him. I am satisfied that the first three steps, as set out in Lockyear v Cox,[3] have been met and that the final two steps are not relevant in the present circumstances given that the Applicant has not filed any material in compliance with the directions issued on 29 September 2025, and accordingly no facts are disputed.

• [32] I note that the Applicant has not filed any material that provides a substantive response to the grounds of the Respondent's s.399A application.

• [33] I consider that the Applicant failed to attend a case management conference on 23 September 2025. He was contacted by my Chambers prior to the listing and during the listing using many varied means including email, phone call and text message. He was then sent a follow up email following the failure to attend the hearing and sent a copy of the s.399A application filed by the Respondent. No contact, explanation or response was received by my Chambers regarding his failure to attend and while a late response was received to directions made in relation to the s.399A application, it did not join with the issues raised in the Respondent's s.399A application to dismiss these proceedings and did not provide any explanation for his failure to attend a conference. In the circumstances I am satisfied that he unreasonably failed to attend a conference conducted by the Commission in relation to his application.

• [34] I also conclude that the Applicant has not provided a reasonable explanation for failing to comply with the various directions as issued by the Commission in relation to the substantive application. The Applicant has not provided any explanation for his failure to comply. I am satisfied, for the purposes of s.399A(1)(b) of the Act, that the Applicant's failure to comply with the directions issued on 18 September 2025 was unreasonable.

• [35] In the circumstances described above, I am empowered to exercise the discretion pursuant to s.399A of the Act to dismiss the substantive unfair dismissal application. While this discretion is to be exercised with caution,[4] I am satisfied that it should be exercised given that:

(a) The Applicant has unreasonably failed to attend a conference conducted by the Commission in relation to the application;

(b) The Applicant has unreasonably failed to comply with directions made by the Commission;

(c) The Commission has afforded the Applicant an adequate opportunity to respond to the s.399A application or otherwise engage with the Commission about his substantive unfair dismissal application; and,

(d) The Applicant has been on notice of the potential consequences of his non-compliance.

• [36] For the reasons given, the Respondent's application under s.399A is granted.

• [37] The Applicant's application for an unfair dismissal remedy is dismissed pursuant to s.399A(1) of the Act. An Order to this effect will be issued with this decision.[5]

[1] [2021] FWCFB 875.

[4] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925, [31].

[5] PR792811.

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