s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.399A dismissal

• [1] On 12 October 2025, Ms Kristina Krsteva applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to her former employment with Eat Grk Penrith Pty Ltd (Eat Grk). The application was filed more than 21 days after Ms Krsteva was dismissed.

• [2] On 12 November 2025, I issued Directions for the purpose of dealing with whether an extension of time should be allowed to Ms Krsteva to make the application. The Directions required Ms Krsteva to file and serve an outline of submissions, any witness statements and other evidentiary material on which she wished to rely by 4.00pm on Friday, 21 November 2025. Ms Krsteva did not file any materials in accordance with the Directions.

• [3] At 3.39pm on 21 November 2025, Ms Krsteva advised Chambers that she was having trouble opening the Directions issued on 12 November 2025.

• [4] On 24 November 2025, I issued Amended Directions, extending the filing date for the Applicant's materials to 1 December 2025. Ms Krsteva did not file any materials in accordance with the Amended Directions.

• [5] On 4 December 2025, Chambers sent an email and an SMS to Ms Krsteva about her overdue materials, directing Ms Krsteva to file and serve her materials by close of business that day. Ms Krsteva did not comply with the direction.

• [6] At 9.09am on 5 December 2025, Ms Krsteva emailed Chambers asking if Chambers had received her "email response" as she was using a temporary phone and it had been "glitching". At 9.23am, Chambers emailed Ms Krsteva to confirm that no correspondence had been received from her since 21 November 2025. No response or correspondence was received from Ms Krsteva.

• [7] On 11 December 2025, Chambers wrote to the parties confirming that no materials had been filed in accordance with the Directions and inviting consideration of whether application should made to dismiss the application under s.399A of the Act. Parties were advised that if an application was made under s.399A, anyone wishing to be heard on the application must advise Chambers by 2.00pm, Monday, 15 December 2025. Eat Grk responded on the same day applying for the application to be dismissed. No response was received from Ms Krsteva.

• [8] The position remains that Ms Krsteva has not complied with the Directions. Allowing some latitude to overcome any technical difficulties, the timing of emails received from Ms Krsteva on 21 November 2025 and 5 December 2025 indicates that she was able to receive and read correspondence from Chambers and to respond using the email address provided in her application. They also indicate that she was, or should have been aware, that the Commission was expecting her to file materials in support of her application and that there was some urgency to the request.

• [9] No follow up inquiries have been received from Ms Krsteva and there is no evidence (other than her brief emails above) to support either the fact of having experienced technical difficulties or the reasons why her application was late. In her application, Ms Krsteva also relied on technical difficulties to explain the reason for filing after the expiry of the 21-day filing period. The asserted difficulties arose in the window between the end of the 21-day period and the filing of her application. While this might have explained part of the filing delay, it could not have contributed to the fact that the application was late in the first place.

• [10] In the circumstances, I am satisfied that Ms Krsteva has unreasonably failed to comply with directions of the Commission.

• [11] Application U2025/16365 is dismissed under s.399A of the Act.

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