s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s 399A of Fair Work Act 2009.

• [1] On 24 September 2025, Ms Karen Aarsman (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which she asserts that the termination of her employment with Mornington Peninsula Living Pty Ltd (the Respondent) was unfair. The Respondent raised two jurisdictional objections in its Form F3; that the Applicant filed the application outside the statutory 21-day filing period, and that the Applicant was not dismissed.

• [2] The matter was allocated to my Chambers on 1 December 2025, and directions were issued to the parties on the same day. The Directions set down a timetable for a hearing and for the filing of material by both parties in relation to the first jurisdictional objection that the application was filed outside the 21-day filing period. The directions relevantly included the following;

[1] The submissions must include all relevant facts, dates and incidents to support all claims made.

[2] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[3] Please note that witness statements are designed to take the place of evidence-in-chief.

[6] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[7] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

• [3] The Applicant failed to file her material by 5pm on 12 December 2025 as required by the directions. She also failed to contact my Chambers to seek an extension of time for the filing of her material. On 15 December 2025, the Respondent's representative wrote to my Chambers seeking that the application for an unfair dismissal remedy be dismissed as the Applicant had failed to comply with a direction of the Commission. Correspondence was then sent to the Applicant by my Chambers on 15 December 2025 in the following terms;

The Respondent in this matter has applied to the Commission for your application for an unfair dismissal remedy to be dismissed because of your failure to comply with the direction of the Commission to file submissions and material in support of your application by 5pm, Friday 12 December 2025.

The directions were issued to both parties on 1 December 2025 and made clear that any request for an extension of time for the filing of material was required to be made to Chambers in writing in advance of the filing date/time. No such request has been made by you. A copy is attached for your reference.

Relevantly, section 399A of the Act provides as follows:

(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

(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."

You may file submissions and any other material which you seek to rely on as to why your application for an unfair dismissal remedy should not be dismissed pursuant to s 399A of the Act by 5pm, Wednesday 17 December 2025.

Should either party seek to be heard in relation to the above they should contact Chambers. Otherwise, the matter will be dealt with on the papers.

Please note that pending the outcome of the s 399A application made by the Respondent, the directions and notice of listing have been vacated.

• [4] No submissions were filed by the Applicant in response to the 15 December 2025 correspondence. Nor did the Applicant contact my chambers in relation to either the original directions or the correspondence sent to her on 15 December 2025.

• [5] Turning now to whether the application should be dismissed, s 399A of the Act provides as follows:

(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.

(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."

• [6] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss her application for an unfair dismissal remedy by 5pm, Wednesday 17 December 2025, I will determine the application on the papers.

• [7] The Applicant has failed to comply with directions of the Commission. She has done so by failing to file her materials by 12 December 2025 or contact my Chambers to seek an extension of time for the filing of material. She has not provided an acceptable explanation for her non-compliance despite being afforded an opportunity to do so. In these circumstances I am satisfied that the Applicant has unreasonably failed to comply with directions of the Commission.

• [8] In the circumstances I have decided to grant the Respondent's application under s 399A(1), and the Applicants' unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

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