s.394 - Unfair dismissal

• [1] On 2 April 2025, Mr Jayden Roberts made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Black Rubber Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

• [2] The matter was listed for a staff conciliation on 5 May 2025. Mr Roberts did not attend the conciliation despite attempts made by the staff conciliator to contact him. Accordingly, the conciliation was unable to proceed. The staff conciliator then issued correspondence to the parties, requesting that they advise whether they wished the matter to be listed for a further conciliation. No response to this correspondence was received.

• [3] The matter was allocated to me on 15 May 2025. On 20 May 2025, I issued directions requiring Mr Roberts to file material in support of his application by 10 June 2025 and notified the parties of a telephone conference to be convened on 23 May 2025. Mr Roberts did not attend the conference despite multiple attempts to contact him. Accordingly, the conference did not proceed.

• [4] Mr Roberts failed to file any material by 10 June 2025 in accordance with my directions. Therefore, on 11 June 2025, I caused my chambers to issue correspondence to the parties advising that the matter would be listed for a non-compliance hearing at 10:00am on 16 June 2025 by video using Microsoft Teams. My correspondence informed the parties that if Mr Roberts failed to attend the non-compliance hearing or failed to provide a satisfactory explanation for his non-compliance with my directions, his application would be at risk of being dismissed under s.587 of the Act.

• [5] Mr Roberts did not join the non-compliance hearing on Microsoft Teams. My Associate made attempts to contact Mr Roberts by telephone for the purpose of the non-compliance hearing, however these attempts were unsuccessful. The non-compliance hearing was therefore vacated.

• [6] Section 587 of the Act provides as follows:

(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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [7] Mr Roberts has not communicated or corresponded with the Commission since the filing of his application on 2 April 2025. Numerous attempts have been made to engage Mr Roberts in his application to the Commission.

• [8] The words, "without limiting when the FWC may dismiss an application" at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss.587(1)(a), (b) and (c).

a) attend the staff conciliation on 5 May 2025;

b) attend the conference before me on 23 May 2025;

c) file material in accordance with the direction issued by me; and

d) attend the non-compliance hearing before me on 16 June 2025

I have decided to dismiss Mr Roberts' application pursuant to s.587(3)(a) of the Act for want of prosecution.

• [10] An Order to this effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer