s.394 - Application for unfair dismissal remedy

[1] On 20 November 2025, Mr Jesse Haines (Mr Haines) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Calm Tiling Contractors (Calm Tiling).

[2] On 23 December 2025, Calm Tiling filed a Form F3 - Employer response to unfair dismissal application raising the Jurisdictional Objection that the Calm Tiling is a small business employer and complied with the Small Business Fair Dismissal Code.

[3] On 20 January 2026, the Application was allocated to my Chambers for determination.

[4] A Notice of Listing was issued to parties on 28 January 2026 informing them that they were required to attend a Conference in person at 4:00pm (AWST) 5 February 2026 (Conference).

[5] Mr Haines did not seek an adjournment of the Conference and failed to attend the Conference.

[6] On 5 February 2026, Chambers wrote to Mr Haines providing him with the opportunity to file submissions addressing the reasons for not attending the Conference.

[7] On 6 February 2026, Calm Tiling applied pursuant to section 399A of the Fair Work Act 2009 (FW Act) for the Application to be dismissed on the grounds that Mr Haines had failed to attend the Conference (Dismissal Application).

[8] On 6 February 2026, Mr Haines was invited to file submissions and evidence as to why the Application should not be dismissed by 10am (AWST) 9 February 2026. Chambers advised Mr Haines that if he did not file any such submissions or evidence by 10am (AWST) 9 February 2026, the Application would be dismissed pursuant to section 399A of the FW Act.

[9] No submissions or evidence were filed in relation to the Dismissal Application by Mr Haines by 10am (AWST) Monday 9 February 2026.

[10] At 3:00pm (AWST) on Monday 9 February 2026 Chambers notified the Parties that the Application had been dismissed. This decisions sets out the reasons.

(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 other 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."

[12] Mr Haines failed to attend the Conference in accordance with Notice of Listing. Mr Haines failed to file any materials providing reasons why he failed to attend the Conference or in response to the Dismissal Application. Mr Haines has not sought an extension to file materials outlining his reasons for failing to attend the Conference or in response to the Dismissal Application. I am satisfied that Mr Haines has unreasonably failed to attend a conference conducted by the FWC. On the application of Calm Tiling and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

• [13] An Order[1] to this effect will be issued with this decision.

[1] PR796576.

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