Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - Applicant failed to respond to any Commission contact since lodgement - failure to progress application - application dismissed for want of prosecution.

• [1] Ms Liza Owen (the Applicant) made a general protections application to the Fair Work Commission (the Commission) to deal with contraventions involving dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). Ms Owen stated in her application that she had been dismissed from her employment with Horan And Bird Solar (the Respondent).

• [2] The Respondent in their Form F8A - Response to a general protections application involving dismissal stated that they raised a jurisdictional objection that no dismissal had occurred and stated that the Applicant had resigned from her employment.

• [3] The Full Court of the Federal Court's decision of Coles Supply Chain Pty Ltd v Milford,[1] requires the Commission to determine whether the Commission has jurisdiction in regard to a s.365 application. That jurisdiction is dependent on determining whether a termination of employment occurred and on what date the dismissal occurred.

• [4] The matter was allocated on 5 September 2025, a Notice of Listing was sent to the parties to attend a Determinative Conference to be conducted on 30 September 2025. At the same time, pursuant to the requirements established in Coles Supply Chain Pty Ltd v Milford,[2] Directions were set for the parties to file their submissions and evidence in relation to the Respondent's jurisdictional objection. Parties were also required to confirm their attendance at the Determinative Conference within 24 hours of receipt of the Notice of Listing and Directions.

• [5] On 8 September 2025, the Respondent confirmed their attendance at the Determinative Conference scheduled for 30 September 2025.

• [6] The Directions required Ms Owen to file her material by 3:00pm on Friday, 12 September 2025. The Applicant did not confirm her attendance or file her material and did not contact Chambers.

• [7] On the morning of 17 September 2025, my Chambers emailed the Applicant stating that she had failed to confirm her attendance at the Determinative Conference and that she had not filed her material. The Applicant was given an extension to confirm her attendance and file her material in relation to the jurisdictional objection until 5pm that day. The Applicant did not file her material by the amended time and did not contact Chambers.

• [8] Consequently on 18 September 2025, the Respondent made an application to dismiss this application on the basis that the Applicant had failed to comply with the Directions of the Commission or to respond in any way and therefore that the application should be dismissed for want of prosecution. The Respondent noted that there was an absence of correspondence and compliance with the Directions by the Applicant.

• [9] Later on 18 September 2025, my Chambers sent an email to the Applicant stating that if the Applicant was seeking to respond to the Respondent's application to dismiss, she was required to do so by 4pm on Monday, 22 September 2025. The Applicant did not respond and did not contact Chambers.

• [10] On 19 September 2025, my Chambers phoned the Applicant. The Applicant did not pick up the call and a voicemail was left to the effect that this was a call made from the Fair Work Commission in relation to the Applicant's matter C2025/7817 and the Respondent's application to dismiss her case. It was stated that the Applicant had not responded and that she was required to urgently contact the Commission back on 07 3028 7816 by 5pm that day. The Applicant did not do so.

• [11] Section 587 of the Act is 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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [12] In relation to the general power to dismiss an application under s.587(1), it is considered that this should be used sparingly and approached with caution. [3] As per the decision of Resta v Myer Ptd Ltd:[4]

"[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,[5] referred to the relevant application of the principles from the case of Hoser v Hartcher,[6] in emphasising that a Member in approaching a dismissal application 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).

In the decision of May v City of Gosnells[7], which is a matter whereby the Applicant failed to respond to the Commission despite various attempts to contact him, the Commission referred to the use of s.587(3) to dismiss the matter as follows:

"[7] Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words "without limiting when FWC may dismiss an application" in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] If an 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]).

[9] In these circumstances I am satisfied that the facility under s.587 can and should be

[10] Mr May has also been on notice of the likely consequences for his application if he did not respond to the Commission's inquiry and it is quite possible that he has abandoned his application."[8] (emphasis added)

• [14] As detailed above, Ms Owen has failed to communicate with the Commission in any manner since the lodgement of her application 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 lodgement of her application.

• [15] In summary terms, the Applicant failed to file material in accordance with the Directions twice and failed to communicate with the Commission after various attempts were made to contact her, including a failure to confirm her attendance. On this basis, the Respondent made an application to dismiss. Accordingly for the reasons set out against the relevant legislative tests and case law outlined above, the Applicant's s.365 application is dismissed pursuant to s.587(3)(b) of the Act for want of prosecution.

[1] [2020] FCAFC 152.

[2] [2020] FCAFC 152.

[3] 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].

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

[6] Hoser v Hartcher [1999] NSWSC 527 at [20]- [30].

[7] [2024] FWC 1884.

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