s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - Applicant's consistent non-compliance, Applicant's failure to respond to the Commission, and failure to attend conferences - Respondent's application to dismiss made pursuant to section 399A - unfair dismissal application dismissed.

• [1] Ms Kristy Bambrick (the Applicant) made an unfair dismissal application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Bambrick stated that she had been dismissed from her employment at Ausure Insurance Brokers Pty Ltd (the Respondent).

• [2] The Commission's file in this matter reflects that on 12 March 2025, the matter was listed for staff conciliation; this was to occur on 1 April 2025. The file indicates that an SMS reminder was sent to the Parties the day before, on 31 March 2025 and that while the Respondent joined the staff conciliation, the Applicant did not. The file entries include that the Applicant was called four times and a voicemail was left for her to join the conference. The file reflects that the Applicant was also emailed the conference call link again at this time. The file then indicates that on 4 March 2024, the Applicant called the Commission and was advised that the matter was in the process of being allocated to a Member and that she should await further instructions from Chambers.

• [3] The application was then allocated to my Chambers. Parties were sent by my Chambers a Notice of Listing to attend a conference on 15 April 2025. Parties were directed to confirm their attendance at the conference. On 11 April 2025, the Respondent confirmed their attendance. An email was then sent to the Applicant stating that the Applicant also needed to confirm her attendance on an urgent basis. She did not do so.

• [4] On 14 April 2025, two telephone calls were made to the Applicant around 11:43am and 3:40pm. At both times a voicemail was left stating that the Applicant had a conference tomorrow on her application and that the Applicant had failed to contact Chambers and that she was to today confirm her attendance by telephone or email on an urgent basis. On the same day at 5:42pm, the Applicant was then sent a follow-up email stating that she had failed to confirm her attendance for tomorrow's conference and that failure to attend may mean that the matter is considered in her absence. Details of the phone calls were also included in this email.

• [5] On 15 April 2025, the Applicant was called at around 9:44am and a voicemail was left regarding the listed conference scheduled for that day. A follow-up email was then sent at 9:51am which stated that a call had just been made to the Applicant and a voicemail was left, the email then reiterated the message of the previous email sent on the previous day.

• [6] The Respondent attended the conference on 15 April 2025, and the Applicant failed to do so. Two attempts were made to dial the Applicant into the conference and voicemails were left after both calls.

• [7] The Respondent then, subsequently, copying in the Applicant, made an application to dismiss the Applicant's application pursuant to s.399A of the Act on the following grounds:

• The applicant Ms Kristy Bambrick has refused to respond to directions from Fair Work Commission.
• The applicant did not attend a conference hearing in relation to a case that they have started on 1st April 2025.
• The applicant failed to attend a conference or hearing with the Commission on 15th April 2025.
• The applicant ignores telephone call and emails from Fair Work Commission.

• [8] On 29 April 2025, the Applicant called Chambers. An email was sent to the Applicant that day acknowledging the calls and stating that enquiries should be put in writing to ensure procedural fairness to all parties in this matter. The email also reiterated the Respondent's section 399A application to dismiss her matter.

• [9] On 30 April 2025, the Applicant responded to the Chamber's email and stated that she considered that she was entitled to pro-rata long service leave. It was then stated to parties that while this was not in direct consideration of the matter, the State legislation for the consideration of long service leave payments was raised with the parties and it was set out that the Respondent was at liberty to respond to this request. The Respondent provided a response stating that as the Applicant's employment was terminated due to performance issues that she was not entitled to pro-rata long service leave under that relevant legislation. The Applicant in her response had provided no reasoning for her repeated non-compliance.

• [10] The Applicant was Directed to provide a response with any explanation or reasons in relation to her non-compliance as outlined above. It was stated that failure to provide any response will require this matter to be determined on the current material before the Commission. No response was received by the Applicant, accordingly the Respondent's application to dismiss the matter has been determined on the material before the Commission.

• [11] Section 399A of the Act is 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.

Note 1: For another 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] It has been held that in relation to the power to dismiss an application under s.587(1), that this should be used sparingly and approached with caution. [1] This is also relevant to this matter, proceeding with caution is also applicable to the discretion to dismiss under s.399A. As per the decision of Resta v Myer Ptd Ltd:[2]

"[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 'the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion'." (Emphasis added).

• [13] Further a recent Full Bench of the Commission in Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd[3], referred to the relevant application of the principles from the case of Hoser v Hartcher,[4] in emphasising that a Member must weigh the impact of a decision to dismiss an application on each party:

"[33] The exercise of a discretion by a member of the Commission to summarily dispose of proceedings on grounds of want of prosecution, under s 399A in the case of unfair dismissal proceedings or otherwise, involves a balancing exercise in which a variety of factors are to be considered. Considerations such as those set out by Simpson J in Hoser v Hartcher are likely to be relevant. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. That assessment must also be undertaken taking into account the obligations of the Commission under s 577(1) of the Act and the impact of any non-compliance with directions on the operations of the Commission more broadly." (Emphasis added).

• [14] Hoser v Hartcher is a New South Wales Supreme Court decision whereby Justice Simpson laid out a non-exhaustive list of eleven principles that are relevant to the discretion to dismiss a matter for want of prosecution.[5] These principles included that 'the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed'[6] and that 'the discretion should be exercised only in a clear case where it is manifestly warranted'.[7]

• [15] In terms of the Applicant's failure to prosecute the matter whilst these circumstances of her non-compliance have been detailed above, in summary terms Ms Bambrick failed to attend the two conferences listed above before the Commission and failed to communicate with Chambers in any manner before the last listed conference despite various attempts to contact her including via email and by phone. It is emphasised that, at all times the attempts to contact the Applicant were made using the email address and phone number that she submitted on her application.

• [16] The Employer made the application to dismiss pursuant to s.399A, and therefore pursuant to s.399A(2) the Commission's power to dismiss an application under this section of the Act is enlivened as above. The Employer made this application on the basis that the Applicant 'refuse[d] to respond to directions from the Fair Work Commission', did not attend the Commission conferences on 1 April 2025 and 15 April 2025, and she 'ignore[d] telephone calls and emails from Fair Work Commission.' As such, the Employer's application referred to the Applicants's failure to progress the application relevant to section 399A(1)(a)-(b). Overall, the Applicant failed to prosecute the matter, failed to respond to or attend the listed conferences before the Commission, and failed to respond to directions regarding attendance at listings despite attempts to contact her.

• [17] The Commission in various decisions dismissing an Applicant's application (albeit pursuant to s.587) in circumstances whereby the Applicant has failed to respond to the Commission's attempts to contact them, have held that:

"If applicant's conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39])."[8]

• [18] The Applicant provided no evidence of a willingness to progress her unfair dismissal application.

• [19] I have undertaken the 'balancing exercise'[9] in relation to the impact on both parties of dismissing the matter. I consider in these circumstances that taking all matters into consideration regarding the Applicant's non-compliance against the relevant legislative tests and the case law outlined above, the Applicant has failed to prosecute her matter. Accordingly, I exercise the discretion pursuant to section 399A(1)(a) to dismiss the application based on the Respondent's application and the Applicant's conduct in unreasonably failing to attend a conference conducted by the Commission.

• [20] A separate Order to this effect has been issued (PR787215).

[1] Resta v Myer Pty Ltd [2013] FWC 7080 at [32], [39 ('Resta')]; Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 at [9].

[3] [2025] FWCFB 40.

[4] [1999] NSWSC 527 at [20]- [30].

[8] See for example: May v City of Gosnells [2024] FWC 1884 at [8]; Boehme v Backstage Agency [2025] FWC 1133 at [6]; Birve v Caloundra State High School P & C Association [2025] FWC 1195 at [7].

[9] Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd [2025] FWCFB 40 at [33].

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