s.394 - Unfair dismissal

Application for an unfair dismissal remedy - applicant's failure to communicate with Commission and/or comply with directions wholly unacceptable, unexplained and unsatisfactory - application dismissed

• [1] On 12 August 2025, Mr John Daason (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is Commonwealth Bank of Australia (Respondent).

• [2] Direction [2] of the Directions issued on 9 October 2025 reads:

"[2] By 4.00pm AEDT on Thursday, 23 October 2025, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their unfair dismissal claim."

• [3] The Applicant did not comply with Direction [2].

• [4] On 24 October 2025, at 10:15AM AEDT, the following email (Show Cause Email) was sent to the Applicant's legal representative, and the Applicant was copied in:

On 9 October 2025, the Fair Work Commission issued Directions in this matter.

[2] By 4.00pm AEDT on Thursday, 23 October 2025, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their unfair dismissal claim.

To date, Chambers has not received any materials in compliance with Order [2].

In view of the foregoing, the Deputy President directs as follows:

[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why the material is late and why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT on Monday, 27 October 2025.

[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant's submissions, the matter may be dismissed without further notice.

• [5] On Monday, 27 October 2025, my Associate called the Applicant to explain that the Applicant's filings were overdue, per the Show Cause Email. During this conversation, the Applicant explained that he had been facing mental and physical health issues, despite not having raised this prior with my Chambers or having sought an extension to the Directions on that basis. The Applicant stated they wished to proceed with the matter. My Associate advised the Applicant that he would need to send an email to my Chambers requesting an extension and explaining his non-compliance with the Directions to date. Further, the Applicant was advised he would need to copy in the Respondent and seek their consent to request the extension. The deadline the Applicant was given to do this was by 9:00AM AEDT on Tuesday, 28 October 2025 (the Extension Request Deadline).

• [6] The Applicant did not comply with the Extension Request Deadline.

• [7] On Tuesday, 28 October 2025, at approximately 9:20AM AEDT, my Associate called the Applicant to ask why he had not complied with the Extension Request Deadline. In this phone call, the Applicant sought more time to comply. My Associate advised that he would send the Applicant a further email with a new deadline to respond by, copying in the Respondent.

• [8] At 10:07AM AEDT on Tuesday, 28 October 2025, my Chambers sent the following email (Second Email):

I refer to the above matter and below correspondence.

Chambers notes that the Applicant failed to respond to the show cause email below, which was due by 4:00pm on Monday, 27 October 2025.

At 4:05pm on Monday, 27 October 2025, Chambers contacted the Applicant to inquire why no material had been filed. The Applicant informed Chambers that personal issues had prevented him from submitting the material. Chambers pointed out that these reasons had not been communicated via email and no extension had been requested.

Chambers asked the Applicant whether they wished to discontinue the matter. The Applicant stated that they wished to proceed and requested an extension to file their material by 4:00pm on Friday, 31 October 2025.

Chambers verbally granted the Applicant until 9:00am today, 28 October 2025, to send an email to Chambers (copying the Respondent) explaining why an extension should be granted, why they failed to respond to Chambers' emails, and seeking the Respondent's consent.

Chambers notes that no such email has been received from the Applicant by this time. Accordingly, Chambers contacted the Applicant at 9:20am this morning, 28 October 2025 to inform them that in the circumstances the matter needed to be dismissed and closed. The Applicant asked if they could send the email later in the morning.

Chambers will grant the Applicant one final opportunity to send an email to Chambers explaining their reasons for disregarding the attached Directions, Chambers' show cause email sent to the parties at 10:15am on 24 October 2025 and failing to comply with Chambers' verbal direction given following the 4:05pm phone call on Monday, 27 October 2025. The email must also set out why an extension is required and seek the Respondent's consent. The Applicant must send this email to Chambers with the Respondent copied in by no later than 1:00pm today, 28 October 2025. No further time chasing up the Applicant to communicate with the Commission and comply with Directions will be entertained.

• [9] At 12:39PM AEDT on Tuesday, 28 October 2025, the Applicant sent the following email to my Chambers, copying in the Respondent (the Response Email):

Thank you so much for your calls to me yesterday evening and earlier this morning.

As informed to you yesterday evening, I very much wish to proceed with my Unfair Dismissal Claim before Chambers.

May I request Chambers and Commonwealth Bank to consent to an extension of time until the 31st of this month, to provide materials in evidence and in relation to my application.

These materials have already been submitted internally multiple times to Commonwealth Bank.

My delay in submitted this to Chambers is due to both physical illness due to severe flu and the ongoing emotional distress caused by the unfair termination of my employment by the respondent.

I look forward to the response from the respondent and Chambers.

• [10] At 2:47PM AEDT on Tuesday, 28 October 2025, my Chambers sought the Respondent's position on the Response Email by no later than 5pm that day. The Respondent provided its views in an email at 4:48PM AEDT that day, as follows:

I refer to the above matter and below correspondence.

The Commonwealth Bank of Australia (CBA) does not agree to the Applicant's request for an extension for the filing of his materials for the following reasons:

• The Applicant has continuously failed to comply with the directions set by the Fair Work Commission (the Commission) and has not provided an adequate explanation for these failures. In respect of this order, the Applicant has been aware of the date for filing since 9 October 2025 and it is not clear if the explanation that the Applicant provides relates to the period from 9 October 2025 onwards, or the more recent period. Regardless, the Applicant has had ample opportunity to comply with the Directions;

• The Applicant advises that he intends to rely on information that he says has already been submitted to CBA on several occasions. It is not clear what information the Applicant is referring to and why if the information is already available, it has not been filed in accordance with the Directions; and

• Finally, if an extension is granted to the Applicant, and the hearing date is maintained, the Respondent would request an extension of the same time and we note that the reply date is extended accordingly, the Applicant's evidence in reply would be filed on the afternoon of Friday, 21 November 2025, prior to the hearing date on Monday, 24 November 2025, which may prejudice CBA.

CBA has copied the Applicant into this correspondence.

• [11] At 12:19PM AEDT on Wednesday, 29 October 2025, my Chambers issued Amended Directions to the parties by email. Direction [2] of the Amended Directions read as follows:

"[2] By 4.00pm 12.00pm AEDT on Thursday, 23 October 2025 Thursday, 30 October 2025, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their unfair dismissal claim."

• [12] Further, the email sent by my Chambers attaching the Amended Directions read as follows:

Chambers issues the attached Amended Directions dated 29 October 2025.

Further, the parties are advised that if the Applicant fails to comply with the amended Direction [2], the proceedings will be dismissed without any further contact with, or notice to, the Applicant.

• [13] The Applicant did not comply with Direction [2] of the Amended Directions, nor has he made any further contact with my Chambers either by reply email or by way of an attempt to telephone Chambers.

• [14] Section 587 of the Act reads:

(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

(b) the application is frivolous or vexatious; 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:

• [15] In Matthrew Priestley v Blackfisch Films Pty Ltd[1] (Priestley) and Ms Meiyun Xue v Serco Australia Pty Limited[2] (Xue), the Commission held that:

a) the mere fact of non-compliance with a direction is not to be regarded as, in and of itself, sufficient to dismiss an application;

b) the fact that a person may be active on social media, and/or be presumed to have access to free publicly available wi-fi in shopping malls, food courts and other public places (including libraries and fast-food restaurant venues), will not diminish an assertion by such person that they did not receive email communications from the Commission, or were unable to respond via telephone or email to Commission communications;

1. the "possibility" that a party fails to respond to correspondence from the Commission because such correspondence has not been received or read, or because it has been misunderstood, or because directions have been misunderstood, or for some other legitimate reason, ought not be discounted. In other words, the fact that a failure to communicate with the Commission might 'possibly' be explained, is to be taken into account, even though such explanation has never been communicated to the Commission;

d) where a party does not comply with directions on the basis of an assertion that they are yet to obtain legal advice or legal representation, such an assertion will likely be a reasonable explanation for the party's non-compliance. This is so even in circumstances where the party has had the ability to obtain legal advice or legal representation since the date that they first filed their application (normally many weeks prior to their evidence and submissions being due), but have chosen to only inform the Commission of their failure to obtain such legal advice or representation after the deadline for them to file their evidence and submissions has already passed;

e) akin to overturning a default judgement, if an applicant can provide a belated explanation for their avoidant or incommunicado conduct, they have a very good chance that their dismissed proceedings will be revived or re-enlivened, including on the basis of a denial of procedural fairness generally, or one of its many broad tenants;

f) the failure of a party to file submissions and evidence in reply, even where directions have been issued that expressly 'require' the party to do so, provides no basis to infer that an applicant is not seeking to pursue their application. This is so despite the direction itself requiring reply evidence to be filed, the applicant providing no indication of their forensic choice not to file reply evidence, and the applicant making no attempt to have the direction as to reply evidence varied prior to its date for compliance; and

g) the Commission's power to dismiss an unfair dismissal application on grounds of non-compliance with directions, or being unresponsive to Commission communications, is only available on application by a respondent employer, and where the applicant has conducted themselves unreasonably (albeit, note that some of the matters set out in (a) to (f) above may limit or dilute the ordinary meaning of the term "unreasonable").

• [16] As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email and/or the Extension Request Deadline and/or the Second Email and/or Direction [2] of the Amended Directions, and has failed to otherwise make any further contact with my Chambers since the Response Email, I have decided to dismiss his Application.

• [17] The Applicant has been given repeated opportunities to file his materials. His repeated failure to do so is entirely unacceptable. This is particularly so when the Applicant has demonstrated that he can answer a phone call and send an email (such as the Response Email). No satisfactory explanations or evidence for the non-compliance and non-responsiveness have been provided by the Applicant for his failings.

• [18] Rather than engaging on the various possibilities as to why the Applicant has conducted himself in this manner, my preference is to work on the basis of what is actually before me (in terms of evidence) at the time of publishing this decision. In this regard, as at 30 October 2025 there is no evidence before me that the Applicant has in any way attempted to comply with Direction [2] of the Directions and/or the Show Cause Email and/or the Extension Request Deadline and/or the Second Email, and/or Direction [2] of the Amended Directions, or otherwise sought to make any contact with the Commission beyond the Response Email and the phone calls he picked up from my Chambers.

• [19] The decisions in Priestley and Xue identify that dealing with non-compliance and non-responsiveness is an ordinary part of case management. However, to the extent that these decisions fail to uphold (as their central focus) the issue of personal responsibility, for example, in being responsive in a timely manner to Commission communications, I decline to follow them.

• [20] A statutory tribunal such as the Fair Work Commission is expressly given certain jurisdiction and powers that it must exercise. I consider that the Commission must equally be taken to hold (by implication) whatever powers may be necessary to properly exercise such (express) powers and control its own process (including the dismissal of proceedings for reasons of non-compliance and non-responsiveness).[3] Further, in dismissing an application, I do not consider it necessary to get into some form of labelling or categorisation exercise as to whether an Application is being dismissed for want of prosecution, absent due dispatch, abuse of process, being vexatious, etc, or to engage is some form of detailed multifactorial analysis or balancing exercise around possibilities or unquantifiable probabilities, etc. If an applicant goes incommunicado and thus fails in their personal responsibility to engage with the case that they have themselves initiated, I consider this alone sufficient to remove the applicant's right or entitlement to have their proceedings continued any further. Of course, there will be exceptions, but such exceptions need to be well grounded in direct probative evidence of an actual inability to have communicated with the Commission at the relevant time, or as and when required to do so.

• [21] With due respect to the Full Bench in Xue, I do not accept that I need wait for the Respondent to make overtures about filing, or actually filing, an application under s.399A of the Act, to enliven my power and discretion to dismiss the Application. Whatever be an employee's right or entitlement to unfair dismissal protection, and the filing of a claim with the Commission to adjudicate same, such an employee also holds a personal responsibility to the Commission to be responsive in a timely manner to communications, and to file and serve their evidence and submissions as directed (i.e. absent prompt communication with the Commission of their inability to do so). A failure to be responsive is not simply an issue to be dealt with via run of the mill case management procedures, or only upon application by a respondent employer. Rather, I consider that non-responsiveness is outright fatal to an employee's ability to maintain, or continue to agitate, their (in this case unfair dismissal) claim before the Commission. Indeed, the suggestion that an unfair dismissal claim may only be dismissed upon a respondent employer's application under s.399A of the Act, in circumstances where an applicant's conduct has been deleterious and/or unreasonable, makes little sense.

• [22] It is not for me to speculate, or give the benefit of the doubt to the Applicant, as to the plethora of reasons that might exist for the Applicant's non-compliance and deleterious conduct. That could only result in more time wasting.

• [23] An Order dismissing the Application under s.587(3)(a) of the Act, for the reasons set out in this decision, will be published contemporaneously with this decision.

[1] [2025] FWCFB 40

[2] [2025] FWCFB 75

[3] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, at 16-17, per Dawson J.

Printed by authority of the Commonwealth Government Printer