s.394 - Unfair dismissal

Application for an unfair dismissal remedy - failure to attend proceedings - s.399A application - application dismissed

• [1] On 6 February 2025, Jayde Jeffery made an unfair dismissal application alleging she had been unfairly dismissed by ODVI Early Learning Centre Pty Ltd (ODVI) on 5 February 2025. Ms Jeffery's application identified Oxana Ignatova, who is the owner of ODVI, as the respondent. I amended the application on my own initiative because it is clear Ms Jeffery was dismissed by ODVI and not Ms Ignatova.

• [2] A staff conciliation conference was scheduled in relation to Ms Jeffery's application on 4 March 2025. Ms Jeffery did not attend the conciliation conference, nor did Ms Ignatova or any other representative of ODVI, however Ms Ignatova advised a Fair Work Commission staff member on the day that the respondent would not oppose a further conciliation being listed.

• [3] I listed Ms Jeffery's application for conciliation conference on 30 April 2025. Ms Jeffery did not attend the conference and could not be contacted by my chambers. Ms Ignatova attended the proceeding,

• [4] ODVI filed an application for Ms Jeffery's unfair dismissal application to be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act) on 30 April 2025. The application relied on Ms Jeffery's failure to attend Commission proceedings on 4 March 2025 and 30 April 2025.

• [5] On 2 May 2025, Ms Jeffery was provided with an opportunity to file any evidence or submissions in opposition to ODVI's s.399A application by 5:00pm on Friday, 9 May 2025. Ms Jeffery was also advised that her unfair dismissal application may be dismissed without further notice if she did not file any material in opposition to the s.399A application. Ms Jeffery did not file any material.

(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."

• [7] The relevant principles to consider ODVI's application under s.399A were helpfully summarised in Lockyear v Graeme Cox [2021] FWCFB 875 (Lockyear) at [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.

1. 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."

• [8] Section 399A(2) is obviously satisfied by ODVI's application.

• [9] Similarly, s.399A(1)(a) is satisfied by Ms Jeffery unreasonably failing to attend the proceedings on 4 March 2025 and 30 April 2025. On 30 April 2025 my chambers made two phone calls and sent an email to Ms Jeffery requesting a response in relation to her non-attendance. Ms Jeffery has not responded to any of those communications.

• [10] The jurisdictional pre-requisites are met for Ms Jeffery's application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant's right to have their application heard and determined according to the law before they have had their 'day in court' (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

• [11] In addition to failing to attend a previous staff conciliation conference on 4 March 2025, Ms Jeffery did not attend a conciliation listed on 30 April 2025 without any explanation. Ms Jeffery has provided no response to any communications from chambers, including to the s.399A application, despite numerous opportunities being provided.

• [12] In these circumstances, I see no utility in allowing Ms Jeffery's claim to continue and I therefore grant ODVI's application under s.399A.

• [13] An order giving effect to this decision will be issued separately in PR787236.

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