s 394 - Unfair dismissal

• [1] On 13 December 2024, Mr Joshua Addink (Mr Addink) 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 Drillmech Pty Ltd (Drillmech).

• [2] On 8 January 2025, Drillmech filed a Form F3 - Employer response to unfair dismissal application. No Jurisdictional Objection was raised.

• [3] On 8 January 2025 the Application was listed for a conciliation conference before a staff conciliator. The conciliation conference could not proceed because Mr Addink failed to attend.

• [4] On 24 February 2025, the Application was allocated to my Chambers for determination.

• [5] Directions were issued to parties on 11 March 2025 (Directions). The Directions required Mr Addink to file by 4pm (AWST) Thursday 20 March 2025, his materials in relation to the merits of the Application. The parties were advised that compliance with the Directions was mandatory.

• [6] Mr Addink failed to file the materials by the required date and time as set out in the Directions.

• [7] On 20 March 2025, Chambers wrote to Mr Addink and reminded him that his materials were overdue.

• [8] On 20 March 2025, Drillmech made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Addink failed to comply with the Directions (Dismissal Application).

• [9] On 21 March 2025, Mr Addink was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Monday 24 March 2025. Chambers advised Mr Addink that if he did not file any such submissions or evidence by 4pm (AWST) Monday 24 March 2025, the Application would be dismissed pursuant to section 399A of the FW Act.

• [10] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Addink by 4pm (AWST) Monday 24 March 2025.

• [11] Section 399A of the FW Act provides:

(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 Addink failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision, Mr Addink has still not filed any materials in support of the Application or in response to the Dismissal Application. Mr Addink has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Addink has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of Drillmech 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] PR785516.

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