Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - non-compliance with directions - case not prosecuted - no reasonable prospects of success - application dismissed.

• [1] On 7 March 2025, Mr Lyle Atfield (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The application was initially allocated to the Chambers of Deputy President Dean and a directions conference was held on 30 April 2024. The matter was subsequently listed for hearing, and directions were issued by the Deputy President.

• [3] However on 30 April 2025, the application was allocated to my Chambers, and on 1 May 2025, correspondence issued from Chambers advising parties that the matter would be listed for conference at 0830hrs (AWST) on Monday, 12 May 2025, and for hearing on 1 July 2025. Notices of listing issued later that day with respect to the conference and the hearing.

• [4] Chambers' correspondence dated 1 May 2025 included directions requiring parties, amongst other matters, to advise Chambers by 5 May 2025 how many witnesses they anticipated calling should the matter proceed to hearing (the Directions). Neither party responded by this deadline.

• [5] On 6 May 2025, non-compliance directions issued requiring parties to provide their responses to the Directions as a matter of urgency or write to Chambers requesting an extension of time in which to file a response and provide explanation for the non-compliance, by 8 May 2025 (the Second Directions). These Second Directions noted that the matter was listed for conference at 0830hrs (AWST) on 12 May 2025. The Respondent provided its response shortly thereafter. No response was received from the Applicant.

• [6] On 8 May 2025, further directions were issued to the parties, in which the Applicant was required, by 9 May 2025, to write to Chambers requesting an extension of time in which to file a response and provide explanation concerning his non-compliance with the Second Directions (Third Directions). The Third Directions also reminded parties that the matter was listed for conference, by telephone, at 0830hrs (AWST) on 12 May 2025. Parties were notified that further directions regarding the Applicant's non-compliance and the potential dismissal of his application would issue absent a response. No response was received from the Applicant.

• [7] Chambers telephoned the Applicant and left voicemail messages alerting him to his non-compliance with the First and Second Directions and Chambers' correspondence about the same, at approximately 1358hrs (AWST) on 7 May 2025 and 1127hrs (AWST) on 8 May 2025.

• [8] On 12 May 2025, Chambers made at least six attempts to telephone the Applicant between 0820 and 0845hrs (AWST) for the conference listed for 0830hrs (AWST). Chambers left at least one voice-to-text message directing the Applicant to phone Chambers immediately.

• [9] On 12 May 2025, further directions issued regarding the potential dismissal of the application under s 587 of the Act (the Dismissal Directions). The Applicant was required, by 14 May 2025, to file with Chambers, and serve on the other party, written submissions, witness statements, a document list, and any material upon which he wished to rely relating to why the application should not be dismissed. The Applicant was put on notice that if he failed to comply with the Dismissal Directions, I would determine the matter based on the materials before me at that time.

• [10] For the following reasons, I have decided to dismiss the Applicant's application. An Order[1] to that effect issues concurrently with this decision.

• [11] In short, the Applicant has failed to respond to four sets of directions and attend a conference. The Directions, Third Directions and Dismissal Directions each drew the parties' attention to ss 399A and 587 of the Act (dismissal provisions) and emphasised that strict compliance with directions issued was required.

• [12] The Commission's powers to dismiss an application on its initiative are set out generally at s 587 of the Act. That section states:

(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:

• [13] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

• [14] The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[2]

• [15] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[3] That cautious approach is said to be warranted because ordering the dismissal of an application would result 'in the complete extinguishment of an applicant's right to have his/her application for relief orders under beneficial legislation, heard and determined according to law'.[4]

• [16] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to my Chambers, the Applicant has done nothing to prosecute his case. This is notwithstanding the allocation of this Commission's resources to assist him with his unfair dismissal application, including emails and telephone calls to remind the Applicant to promptly file the materials necessary to pursue his case or to respond to the potential dismissal of his unfair dismissal application. The Applicant's non-compliance with the directions, lack of response to written and verbal communication from Chambers, and failure to attend a conference in circumstances where he had not informed the Commission of any unavailability, have led me to this conclusion.

• [17] It follows that in the circumstances of this matter, I consider the Applicant's application has no reasonable prospects of success and, therefore, his application is dismissed pursuant to s 587(1)(c) of the Act.

[1] PR787364.

[2] Viavattene v Health Care Australia [2013] FWCFB 2532, [39].

[3] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].

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