Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 22 May 2025, Mr Liam Harwood made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by David Wright House Removers Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.

• [2] In his application, Mr Harwood did not nominate a date of dismissal but stated that he was dismissed "around the end of April" and that the application was being lodged within 21 days of his dismissal. Despite numerous attempts by the Commission to engage the Respondent in the application, the Respondent has not submitted a response to Mr Harwood's application.

• [3] Before the Commission is empowered to deal with an application made under s.365 of the Act, it must be satisfied that the applicant has been dismissed and the application has been made within 21 days of the dismissal taking effect.[1] Absent confirmation of a date of dismissal from both parties in this matter, I could not be satisfied that these jurisdictional prerequisites were met. It follows that I did not consider I had jurisdiction to deal with the application under s.368 of the Act.

• [4] On 23 June 2025, I issued correspondence to the parties directing Mr Harwood to nominate a date of dismissal, and the Respondent to file a Form F8A response to the application, by 27 June 2025. Neither party complied with my direction, and on 3 July 2025 I issued further correspondence to the parties, directing Mr Harwood to advise by 8 July 2025 whether he wished to proceed with his application. Mr Harwood advised on 4 July 2025 that he wished to proceed.

• [5] On 8 July 2025, I issued correspondence to the parties, repeating my direction for Mr Harwood to nominate a date of dismissal and provide a Form F8A response respectively, allowing the parties until 11 July 2025 to do so. Mr Harwood advised that he was dismissed on 8 May 2025. No response was received from the Respondent.

• [6] On 14 July 2025, I informed the parties that the matter would be listed for a telephone conference on 22 July 2025. Mr Harwood attended the conference. Despite attempts by my associate, the Respondent was unable to be contacted for the conference. The conference proceeded in the absence of the Respondent.

• [7] At the conference, I explained to Mr Harwood that on the very limited information before the Commission, I would have difficulty satisfying myself that he had been dismissed and that his application had been made within 21 days of his dismissal. At the conference, Mr Harwood explained that he had lodged his application because he was seeking to recover amounts from the Respondent that he considered had been unpaid. Immediately following the conference, Mr Harwood provided evidence of a text message he had sent to the Respondent on 28 April 2025 in which he stated that he would not "be back at work until this pay issue is sorted".

• [8] Following the conference, I issued correspondence to the parties inviting Mr Harwood to consider whether he wished to progress his application before the Commission. I suggested to Mr Harwood that if he was seeking to recover unpaid entitlements, he may wish to consider whether to pursue his claims in a court or tribunal of competent jurisdiction, or with the Fair Work Ombudsman. No response to this correspondence was received from Mr Harwood.

• [9] On 26 August 2025, I issued correspondence to the parties noting that no response had been received from Mr Harwood, and it was therefore assumed that he wished to continue with his application. My correspondence stated that on the material before the Commission, I could not be satisfied that Mr Harwood had been dismissed, and if so, that the application was filed within 21 days of the dismissal. I therefore informed the parties that the matter would be listed for hearing by telephone at 2:00pm on 4 September 2025, and that the parties would be required to give oral evidence in relation to the events surrounding Mr Harwood's alleged dismissal.

• [10] On 4 September 2025, numerous attempts were made by my associate to contact both parties for the hearing, without success. The hearing was therefore abandoned.

• [11] Section 587 of the Act provides as follows:

(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

(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:

• [12] The words, "without limiting when the FWC may dismiss an application" at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss.587(1)(a), (b) and (c).

• [13] After having been informed of the potential jurisdictional barriers to his application, Mr Harwood has showed an unwillingness to progress his application. He has not responded to attempts made by the Commission to contact him since 22 July 2025. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An Order [PR791424] giving effect to my decision will be issued.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; Fair Work Act 2009 (Cth) ss.365(a), 366(1).

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