s.365 - General protections

Application to deal with contraventions involving dismissal - non-compliance and deleterious conduct engaged in by Applicant - application dismissed under s.587 of the Fair Work Act 2009

[1] On 12 January 2026, Mr Mark Kamil (Mr Kamil) filed a general protections involving dismissal claim (Application) under s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The employer respondent to the Application is Approved By Frankie Pty Ltd (Respondent).

[2] The Respondent says that it dismissed Mr Kamil from its employment, for reasons of misconduct and poor performance, including:

(a) repeated failure by Mr Kamil to notify the Respondent of his non-attendance for work;

(b) Mr Kamil repeatedly attending work late without explanation (or without a good or credible explanation);

(c) Mr Kamil providing multiple inconsistent reasons for his taking of leave;

(d) Mr Kamil requesting to change from an employee to an independent contractor for no good reason;

(e) Mr Kamil's failure to meet key performance requirements, absent any explanation;

(f) Mr Kamil's failure to follow standard communication protocols; and

(g) the Respondent receiving multiple feedback concerns from clients and other staff regarding the quality of Mr Kamil's work, and his poor work performance.[1]

[3] The matter was allocated to my Chambers on 24 March 2026. On 25 March 2026, my Chambers issued a Notice of Listing, listing the matter for a Conciliation Conference by telephone commencing at 10am AEST on Friday, 10 April 2026 (10 April listing).

[4] In the Notice of Listing issued on 25 March 2026, the parties were directed to provide their written appearances by email to Chambers at least two days prior to the commencement of the listing. The Respondent complied with this requirement; Mr Kamil did not.

[5] At the commencement of the Conciliation Conference, the Respondent's attendees joined the telephone call. Mr Kamil did not join by 10am. My Associate then attempted to telephone Mr Kamil on four separate occasions between 10am and 10:10am. Mr Kamil did not answer the telephone, nor did he return any of my Associate's telephone calls. Mr Kamil never joined the Conciliation Conference, nor did he communicate with Chambers by email or telephone thereafter.

[6] At 10:10am AEST on 10 April 2026, my Chambers sent Mr Kamil the following email (Non-attendance email):

Chambers notes this matter is listed for Conciliation Conference commencing at 10am AEST today. The Respondent is in attendance, and there has been no appearance by you.

Chambers has attempted four phone calls to you, with no response. The Conciliation will be kept open until 10:13pm, after which time it will be vacated.

You will need to contact Chambers by reply email by no later than 2pm today to advise of your circumstances, your reasons for non-attendance, and your position in relation to the matter. If no correspondence is received from you by 2pm today, your application will be dismissed without further notice to you.

[7] Mr Kamil did not respond to the Non-attendance email (by telephone, or otherwise).

[8] At 3:53pm AEST on 10 April 2026, my Chambers sent Mr Kamil the following email (Dismissal email):

Chambers refers to its email below and notes that it has not received any further communication from you. The Deputy President has therefore decided to dismiss your application. A Decision and Order in relation to same will be published by COB on Monday, 13 April 2026. The file in this matter is otherwise now closed.

[9] Mr Kamil has not replied to the Dismissal email, or made any contact whatsoever with my Chambers. As at today's date (13 April 2026), Mr Kamil has still not contacted my Chambers. In fact, Mr Kamil has not communicated with the Commission since first filing his Application on 12 January 2026.

(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

(b) the application is frivolous or vexatious; 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:

[11] In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:

"[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission's] power to dismiss matters for other reasons."

(b) failed to notify my Chambers of his non-attendance at the 10 April Listing prior to its commencement;

(c) failed to explain his non-attendance at the 10 April Listing;

(d) failed to contact the Commission in any way in relation to the 10 April Listing;

(e) made no attempt to comply with the Non-attendance email; and

(f) not answered, and not returned, any of the telephone calls made by my Associate to him;

[13] Rather than engaging on the various 'possibilities' as to why Mr Kamil has conducted himself in the manner he has, my preference is to work on the basis of what is actually before me (in terms of evidence) at 3:53pm on 10 April 2026. In this regard, as at 10 April 2026, there is no evidence before me that Mr Kamil has in any way attempted to comply with the requests that have been made of him, or otherwise sought to make contact with the Commission or my Chambers. This behaviour is unquestionably wholly unacceptable and completely unsatisfactory.

[14] A statutory tribunal such as the Fair Work Commission is expressly given certain jurisdiction and powers that it must exercise. I consider that the Commission must equally be taken to hold (by implication) whatever powers may be necessary to properly exercise such (express) powers and control its own process (including the dismissal of proceedings for reasons of non-compliance and non-responsiveness).[2] Further, in dismissing an application, I do not consider it necessary to get into some form of labelling or categorisation exercise as to whether an Application is being dismissed for want of prosecution, absent due dispatch, abuse of process, etc, or to engage is some form of detailed multifactorial analysis or balancing exercise around possibilities or unquantifiable probabilities, etc. If an applicant goes incommunicado and thus fails in their personal responsibility to engage with the case that they have themselves initiated, I consider this alone sufficient to remove the applicant's right or entitlement to have their proceedings continued any further. Of course, there will be exceptions, but such exceptions need to be well grounded in direct probative evidence of an actual inability to have communicated with the Commission at the relevant time/s, or as and when required or requested to do so. No such evidence exists in this case as at the time of publishing this decision.

[15] It is not for me to speculate, or give the benefit of the doubt to Mr Kamil, as to the plethora of reasons that might exist for his non-compliance and deleterious conduct. That will only inevitably result in more pointless time wasting.

[16] An Order dismissing the Application under s.587(3)(a) of the Act, for the reasons set out in this decision, will be published contemporaneously with this decision (PR798555).

[2] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, at 16-17, per Dawson J.

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