s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed under s.587.

• [1] On 21 August 2025, Ms Maddalyn Brown applied to the Fair Work Commission under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Eden Academy Pacific Pines (Eden).

• [2] I listed the matter for a case management conference/directions hearing by telephone on 5 November 2025.

• [3] On 4 November 2025 at 4:23pm, prior to the case management conference/directions hearing, my Associate sent the following email to the parties:

I refer to the above matter and the conference/directions listed by video at 3:30M (Qld time) Wednesday, 5 November 2025 (notice of listing attached).

Can Ms Brown and Respondent please confirm attendance and best contact details before close of business today, 4 November 2025.

• Mr John Doe (Applicant) - (07) 1234 5678
• Ms Jane Doe (Applicant's Lawyer - Example Solicitors) - 0412 345 678."

• [4] On 5 November 2025 at 11:53am, my Associate provided the Microsoft Teams Video Link via email.

• [5] On the same day at 12:06pm, Eden confirmed their attendance and contact details. However, no response was received from Ms Brown.

• [6] My Associate then attempted to call Ms Brown various times to obtain confirmation of their appearance at 12:36pm, 12:37pm, 2:33pm and 2:33pm on the same day. The calls were either not answered or declined by Ms Brown.

• [7] On the same day at 2:31pm, Ms Brown sent the following email:

"Willl not be attending as I'm in another country."

• [8] The case management conference/directions hearing could not commence because Ms Brown did not attend.

• [9] I subsequently issued Directions for parties to deal with the Respondent's jurisdictional objection on the minimum employment period.

• [10] On the 15 November 2025 at 5:50am, Eden sent to the following correspondence to my Chambers:

Given Ms Brown's unsuccessful attempts to self-represent at both the Tribunal listing on 23 October and the conference on 5 November, Eden respectfully requests that consideration be given to whether the matter should proceed to a determinative conference or hearing. Ms Brown has been afforded two opportunities to progress the matter, and continuing the proceedings will result in further loss of time and additional legal costs for the respondent.

• [11] On the 18 November 2025 at 9:29am, my Associate sent the following correspondence to Eden(copying in Ms Brown) which also put Ms Brown on notice if the potential outcomes if they failed to comply with the directions issued:

Chambers acknowledges the receipt of your email and notes the concerns you have raised.

However, if Ms Brown fails to comply with the directions issued, including the timely filing of submissions, the Application may be dismissed.

Parties are reminded that all correspondence with Chambers must copy in the other side."

• [12] On the 18 November 2025 at 9:29am, my Associate sent the following correspondence to Eden (copying in Ms Brown) which also put Ms Brown on notice if the potential outcomes if she failed to comply with the directions issued:

Chambers acknowledges the receipt of your email and notes the concerns you have raised.

However, if Ms Brown fails to comply with the directions issued, including the timely filing of submissions, the Application may be dismissed.

Parties are reminded that all correspondence with Chambers must copy in the other side."

• [13] Eden submitted their materials 3 days late. No request was made by Ms Brown for an extension on the filing date as a result of the Respondent's lateness.

• [14] Ms Brown did not provide her submissions by 4:00pm Monday 24 November 2025 as required in the directions that I issued. On the 25 November 2025 at 9:42am, my Associate sent the following correspondence to Ms Brown (copying in the Respondent) which also put Ms Brown on notice if the potential outcomes if they failed to comply with the directions issued and for them to provide their material and reasons for lateness by 5:00pm on the same date.

As per the directions issued by Commissioner Durham on 12 November 2025, material for the U2025/14058 was due to be filed with the Commission, and served on Eden(and copying in Chambers.Durham.c@fwc.gov.au), by 4:0pm (QLD Time), Monday 24 November 2025.

The Commission has not received any material from you, nor has it received a request for an extension.

Please advise by 5pm today, why material for the jurisdictional -minimum employment period has not been filed in accordance with the Commissioner's directions.

Failure to comply with these directions will result in the Commissioner making a decision based only on the material that has been provided. Should you choose not to respond, this may result in the matter being determined in your absence without further notice and a decision adverse to your interest may also be made. Reiterating the email sent on 5 November 2025 to you (copying in the Respondent) (copy of that email has been attached), this may result in the matter being dismissed."

• [15] On 25 November 2025, as no response was received from Ms Brown, my Associate attempted to contact Ms Brown at 5:20pm via two telephone calls. However, the calls were declined and there was no ability to leave a voicemail.

• [16] On 25 November 2025, as no response was received from Ms Brown, a text message was sent by the Commission to Ms Brown noting her material was overdue, outlined that there was a risk of this being dismissed and requested that she contact my Chambers as a matter of urgency.

• [17] To date, no further correspondence or telephone contact has been received from Ms Brown.

• [18] 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:

• [19] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

• [20] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

• [21] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Brown has failed to respond to various correspondence from Chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Brown has shown no willingness to prosecute her case and has taken no steps to do so.

• [22] In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where an applicant has failed to prosecute their case without examining the merits.

• [23] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss Ms Brown's application for want of prosecution pursuant to s.587(3)(a) of the Act.

• [24] An order to that effect will issue with this decision.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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