Fair Work Act 2009

s.394 - Unfair dismissal

Australian Sustainable Thermal Energy Solutions Pty Ltd

Application for an unfair dismissal remedy- Applicant failed to properly prosecute his case - application dismissed pursuant to s.587 of the Act.

• [1] On 4 September 2025 Mr Jesse Bruzzese (the Applicant) applied under s.394 of the Fair Work Act (the Act) for a remedy for alleged unfair dismissal. On 30 September 2025 Australian Sustainable Thermal Energy Solutions Pty Ltd (the Respondent) lodged a response to the application, indicating a jurisdictional objection that the Applicant was not an employee, had not met the minimum employment period and also that the Respondent was a small business who had complied with the Small Business Fair Dismissal Code. The matter was allocated to my Chambers on 8 October 2025.

• [2] Having examined the application and the response, I was concerned that the Applicant - while potentially involved in the Respondent's business as a partner - did not appear to be an employee. Given this, on 8 October 2025 I caused my Chambers to write to the Applicant as follows:

Your unfair dismissal claim has been allocated to Deputy President O'Keeffe. Having examined the material supplied by both parties to the dispute, the Deputy President is unclear as to the nature of your relationship with the named Respondent being Australian Sustainable Thermal Energy Solutions Pty Ltd.

The Respondent claims you have never been an employee. Given this, the Deputy President is seeking clarification from you regarding your employment status. Can you please supply, by 4.00pm (AWST) on Friday 10th October any (or all) of the following:

A contract of employment or letter of appointment showing that you are an employee of the Respondent

A payslip showing payments made to you by the Respondent

An ATO Group Certificate showing payments made to you by the Respondent

Any other form of documentation that establishes that you were an employee of the Respondent"

• [3] On 9 October 2025 the Applicant responded to that correspondence with a lengthy email setting out - amongst other things - his argument as to why he was an employee and making a strident call for the summary dismissal of all the Respondent's jurisdictional objections. I do not intend to go into detail regarding that email other than to firstly note that what the Applicant referred to as "incontrovertible" evidence of his employment status was limited to his transcription of three exchanges on the WhatsApp platform. I note that these were the Applicant's transcriptions and not screenshots from the WhatsApp platform itself. Of the three, only one could be said to address the Applicant's status as an employee, and then only by inference drawn from a conversation presented without context.

• [4] The second comment I would make regarding the email is that it contained a number of assertions regarding requirements of the Act, findings from various cases and claims about the contents of certain Fair Work Rules and Regulations. Having examined these various submissions I am satisfied that they are all completely lacking in merit. Given this, I caused my Chambers to again write to the Applicant as follows on 9 October 2025:

Chambers acknowledges your email dated 9 October 2025.

Chambers requests all correspondence to be sent to Deputy President O'Keeffe's Chambers and not Easton DP, as the matter has now been allocated to Deputy President O'Keeffe. As the Commission has an obligation to open and transparent communications between the Parties, all correspondence must copy in the other Party.

The Notice of Listing and Directions sent to Parties 8 October 2025 serves primarily to alert Parties to the listed Conference on Tuesday 14 October 2025 at 3:00pm AWST, by Teams. The purpose of the Conference is for the Parties to discuss how the matter may progress, including whether a settlement can be reached, before the Deputy President. The Deputy President will not hear submissions, evidence or testimony at the Conference. If the matter does not reach a settlement at Conference the Parties will commence to compile their submissions, in accordance with the Directions, in preparation for the listed Hearing of the matter on Tuesday, 11 November 2025, at 10:00am AWST, by Teams.

Chambers draws your attention to the email sent to Parties by the Deputy President on 8 October 2025, which requires you to send to Chambers by 4:00pm AWST on Friday 10 October 2025, the following material that clarifies your employment status with the Respondent:

A contract of employment or letter of appointment showing that you are an employee of the Respondent

A payslip showing payments made to you by the Respondent

An ATO Group Certificate showing payments made to you by the Respondent

Any other form of documentation that establishes that you were an employee of the Respondent.

Please be advised that your email dated 9 October merely asserts the content of conversations - for which no context is provided - that apparently occurred on WhatsApp, but you have not provided screenshots from that App. The Deputy President does not regard those assertions as being compelling evidence of your employment status. To demonstrate an employment relationship, you will need to provide more conclusive evidence.

As a further suggestion to the four options above, you may wish to provide copies of your bank statements that reflect a regular wage / salary payment from the Respondent. Alternatively, you may wish to provide a statement from your superannuation fund showing superannuation contributions being made on your behalf by the Respondent. If you choose one of these options, you are granted leave to provide these statements directly to the Commission without the usual requirement to send a copy to the Respondent.

Please send the required material to Chambers as a matter of priority, to assist the Deputy President in assessing your application, in preparation for the Conference on Tuesday 14 October 2025."

• [5] The Applicant responded on 11 October 2025 with the same email that he had previously sent on 9 October 2025. Given the email was no more compelling on the second read than it had been on the first and given that the initial conference was scheduled for 14 October, I resolved to wait for the conference and speak directly to the Applicant about my concerns.

• [6] Somewhat surprisingly, given the tenor of his correspondence with Chambers, the Applicant failed to attend the scheduled conference. Given this, I caused my Chambers to write to the Applicant as follows on 14 October 2025:

Deputy President O'Keeffe notes with concern your failure to attend this afternoon's scheduled conference, which was attended by both the Respondent and its representative. Several attempts were made to contact you by telephone but there was no response. An email was sent to you confirming the Teams link but again no response was received.

You should be aware of s.399A of the Fair Work Act which provides as follows, with our emphasis:

[Where FWC may dismiss an unfair dismissal application]

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:

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

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

failed to discontinue the application after a settlement agreement has been concluded."

Such dismissal may be made on application by the Respondent. However, the Commission's powers to dismiss applications are not limited to s.399A. The Commission may also - on its own motion - utilise the provisions of s.587 of the Act, which provides as follows:

Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

the application is not made in accordance with this Act; or

the application has no reasonable prospects of success."

In terms of the scope of this section, previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and it has been found that an Applicant's failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8]).

At this time, you have failed to prosecute your application by failing to attend a scheduled conference. Further, you have failed to produce any credible evidence that you were in fact an employee of the Respondent. While you have provided some strident demands about dismissing the jurisdictional objection, with respect the arguments you have used are misconceived. It appears to the Deputy President that you may have relied upon AI to construct your arguments, given the misleading references contained therein.

"The Respondent has failed to discharge the onus of proof resting upon it under regulation 3.01 of the Fair Work Regulations 2009 and Rule 16 of the Fair Work Commission Rules 2024, which require a respondent asserting a jurisdictional bar to provide material facts and evidence in support."

Please be aware that Rule 16 of the Fair Work Commission rules is a rule that permits parties to lodge material via email rather than in hard copy. Regulation 3.01 of the Fair Work Regulations prescribes the kinds of illness and injury that are regarded as temporary absences for the purposes of s.352 of the Act. Neither deals with onus of proof on Respondents who make jurisdictional objections.

In the circumstances, the Deputy President is loathe to list another conference unless you can provide a prima facie case that you were indeed an employee of the Respondent, and you provide an undertaking that you will attend. For the avoidance of doubt, you are advised that the following are regarded by the Deputy President as acceptable evidence of your employment:

An employment contract or letter of appointment issued by the Respondent; or

A redacted bank statement (sent to Chambers only) indicating regular payments from the Respondent; or

A record from the Australian Taxation Office - eg a group certificate - demonstrating tax paid on your wage/salary by the Respondent; or

A redacted superannuation statement (sent to Chambers only) indicating regular payments from the Respondent; or

If you are able to produce an alternative form of documentary evidence, it will be considered. However, please be mindful that the evidence you have proffered to date is not acceptable. If you fail to provide a response, you are advised that the Deputy President will dismiss your application on the basis that you have failed to prosecute it in a proper manner. If you respond without providing evidence of your employment status, then the Deputy President will dismiss your claim on the basis that it has no reasonable prospects of success, given that only employees can make unfair dismissal claims.

In any case, your response is due in Chambers by no later than 12 noon (AWST) Thursday 16th October 2025."

• [7] The Applicant provided a response, which appeared later that day. The Applicant's response was as follows:

"You have failed to follow due processes and reply to valid evidence and emails.

The conference was invalided (sic) based on the documentation provided.

The case was unbearable (sic) based on fact and evidence supplied.

I request this matter to be taken to a higher court system".

• [8] Given that the Applicant had been granted until 12 noon (AWST) on 16 October to make a response, I caused my Chambers to write to him on 15 October 2025 as follows:

Deputy President O'Keeffe notes your response - time stamped 9.14pm on 14 October 2025 - to his email outlining his concerns with your case. As you are aware, that email sets out particular information required from you as a pre-requisite to your case continuing. You were also advised that failure to provide that information would result in your claim being dismissed.

Your response does not provide that information. However, the Deputy President notes that you were given until 12 noon (AWST) on Thursday 16th October 2025 to provide your response. Given this, he proposes to take no action with respect to dismissing your case until after that time. If you choose to make any further response before that time it will be considered."

• [9] As at 5.00pm (AWST) on 16 October 2025 no further response had been received from the Applicant.

• [10] Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521. In this instance, the Applicant has failed to respond to repeated requests for evidence that should have been readily available to him if he were indeed an employee of the Respondent. Instead, he has presented unnecessarily extensive submissions that lacked credibility or coherent argument. He has - without notice, excuse or apology - failed to attend a conference called to deal with his application. In simple terms, he has failed to properly prosecute his case.

• [11] In these circumstances, I am unwilling to waste any more of the precious time of the FWC or the Respondent in dealing with this Applicant and I will exercise my powers under s.587 to dismiss the application. An order to that effect will be issued separately.

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