s.394 - Unfair dismissal

Application for unfair dismissal remedy - s.399A application - Failure to comply with orders of the Commission and attend conferences- Application dismissed

• [1] This decision concerns an application made under s.399A of the Fair Work Act 2009 (the Act) by Serco Australia Pty Limited (the Respondent) to dismiss an unfair dismissal application brought against it by Mele Tuituu (the Applicant).

• [2] For the reasons that follow, the Respondent's application under s.399A is granted, and the Applicant's application for an unfair dismissal remedy is dismissed.

• [3] On 6 May 2025, the Applicant applied to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Act. The Applicant lodged this application by way of a Form F2 - Unfair Dismissal Application (substantive application) which claimed that the Respondent had terminated the Applicant's employment on 16 April 2025.

• [4] On 14 May 2025, the Respondent filed a Form F3 - Employer Response which raised a jurisdictional objection to the application, being that the Applicant was not 'dismissed' for the purposes of ss.385(a) and 386 of the Act.

• [5] On 19 May 2025, this matter was listed for conciliation with a Fair Work Commission Conciliator to occur on 10 June 2025. On 27 May 2025 the Respondent requested an adjournment of this conciliation. On 28 May 2025 this request was granted, and the conciliation was subsequently relisted on 18 June 2025.

• [6] The Applicant failed to attend the conciliation on 18 June 2025. The Respondent attended.

• [7] On 18 June 2025, some hours after the conciliation listing time, the Commission received a request from the email address which lodged the application to reschedule the conciliation. This request did not appear to come from the Applicant themselves, nor did it copy in the Respondent party.

• [8] On 7 July 2025 the conciliation was re-listed for 21 July 2025.

• [9] On 16 July 2025, the records of the Commission record that a member of the Commission's staff attempted to contact the Applicant by telephone and left a voicemail message requesting confirmation of attendees at the conciliation and the best telephone number for conciliation. A similar email was also sent to the Applicant on the same day.

• [10] On 18 July 2025 a reminder SMS was sent to the parties reminding them of the conciliation listed on 21 July 2025.

• [11] On 21 July 2025, the Applicant again failed to attend the conciliation. The records of the Commission show that she was contacted by telephone four times between 11:00am and midday, with no contact made. The Applicant was then notified by email sent on the same day of the matter being referred to a Commission member for conference/hearing.

• [12] On 27 August 2025, the matter was allocated to my Chambers.

• [13] On 27 August 2025, I issued directions for the filing and service of evidence and materials in order to determine the jurisdictional objection to and the merits of the unfair dismissal application and listed the matter for Case Management Conference (Mention and Directions) at 9:30 AM on Monday, 15 September 2025 by Microsoft Teams.

• [14] On 1 September 2025, the Respondent made an application for an Order for Production. In response, I directed the parties to confer with one another as to whether a consent position in respect of production could be reached and asked the parties to advise my Chambers by 3 September 2025 as to the position of the parties.

• [15] On 3 September 2025, the solicitors for the Respondent notified the Commission that the Respondent had sought to confer with the Applicant but had received no response from the Applicant.

• [16] On 4 September 2025, I issued an Order for Production requiring the Applicant to produce documents to the Commission by emailing the documents to my Chambers, as well as to the Respondent's representative by 4:00 pm on 11 September 2025. This was emailed to the Applicant by my Chambers.

• [17] The Applicant did not produce documents to the Commission, nor the Respondent by 4:00 pm on 11 September 2025.

• [18] On 11 September 2025, the solicitors for the Respondent sent correspondence to my Chambers advising that it had not received any correspondence from the Applicant and/or the production of documents and foreshadowed an application pursuant to s 399A of the Act.

• [19] Later the same day, my Associate advised the parties of the process for the making of an application pursuant to s 399A of the Act and noted that I intended to discuss the current programming of the matter and any s 399A application at the case management conference listed on 15 September 2025. My Associate also attempted to contact the Applicant by telephone, with no success, and left a voice message requesting a return call to my Chambers or a response to the correspondence sent from Chambers.

• [20] On 12 September 2025 my Associate again attempted to contact the Applicant in relation to their ongoing matter before the Commission by telephone, email and text message. The Applicant did not respond.

• [21] The Respondent attended the Case Management Conference (mention and directions) on 15 September 2025. The Applicant did not join the Case Management Conference in time for its commencement, and my Chambers attempted to contact her by email, telephone and text message to raise this matter. I stood the hearing down for approximately 20 minutes to allow the Applicant time to attend. The Applicant did not attend and did not answer or respond to the call, text message or email from my Chambers regarding their nonattendance.

• [22] On the application of the Respondent at this listing and given their foreshadowed s 399A application, I relieved the Respondent of its obligations to file evidence and submissions by 17 September 2025 pursuant to the directions issued on 27 August 2025.

• [23] On 15 September 2025, the Respondent filed an application by way of Form F1 under s.399A of the Act to dismiss Ms. Tuituu's application on the grounds that the Applicant has unreasonably failed to:

1. Attend multiple conferences conducted by the Commission in relation to the unfair dismissal application (s 399A(1)(a)); and
2. Comply with an Order of the Commission relating to the unfair dismissal application (s 399A(1)(b)).

• [24] The Respondent filed this application by email to my Chambers, to which the Applicant was copied.

• [25] On 16 September 2025, my Chambers sent an email to the parties drawing the Applicant's attention to the Respondent's s 399A application (and attaching the relevant application, correspondence and documents). This email also included amended directions, which directed the Applicant to file and serve evidence, submissions and documents in response to the Respondent's application to dismiss these proceedings by no later than 4:00PM on 23 September 2025. The Respondent was then provided until 4:00PM on 30 September 2025 to file in the Commission and serve copies on the Applicant of any evidence, submissions and documents in reply. This email indicated that the parties may request for the application to be listed for a hearing and that such a request must be made by no later than 1 October 2025. It stated that if no request was made the application would be dealt with on the papers, unless there were matters of contested fact arising from any filed evidence.

• [26] To date, the Applicant has not filed any material with the Commission, either in support of her substantive application in accordance with the original directions issued, or establishing why her application should not be dismissed in accordance with the subsequent amended directions issued on 16 September 2025. The Applicant has not otherwise engaged with the Commission in relation to her application for an unfair dismissal remedy since 18 June 2025, and has not been able to be contacted by the Commission since this time.

• [27] The Respondent filed submissions in support of its s 399A application on 30 September 2025.

• [28] Section 399A of the Act provides as follows:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

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

• [30] As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

• [31] The Respondent's application relied upon ss.399A(1)(a) and (b). The former pertains to a ground to dismiss applications due to an unreasonable failure by an Applicant to attend a listing before the Commission.

• [32] In Lockyear v Cox,[1] a Full Bench considered s.399A and stated as follows:[2]

• [57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

1. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
2. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

1. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

1. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.

• [33] The Applicant was appropriately informed of the application to dismiss these proceedings on the day it was made by the Respondent. The Applicant has been given adequate opportunity to respond to the application, and the correspondence from the Commission clearly identified that the Commission would proceed to determine the application to dismiss these proceedings in the absence of a response from her. I am satisfied that the first three steps as set out in Lockyear v Cox[3] have been met, and that the final two steps are not relevant in the present circumstances given that the Applicant has not filed any material and accordingly no facts are disputed.

• [34] I note that the Applicant has not filed any response to, nor made any contact with the Commission concerning, the s.399A application.

• [35] I consider that the Applicant did unreasonably fail to attend a staff conciliation conference conducted by the Commission in relation to the application. Ms. Tuituu failed to attend staff conciliation conferences held on 18 June and 21 July 2025. Then Ms. Tuituu failed to attend a case management conference on 15 September 2025. She was contacted by my Chambers prior to the listing and during the listing using many varied means including email, phone call and text message. She was then sent a follow up email following the failure to attend the hearing and sent a copy of the s 399A application filed by the Respondent. No contact, explanation or response was received by my Chambers regarding her failure to attend and no response was received to directions made in relation to the s 399A application. In the circumstances I am satisfied that she unreasonably failed to attend a conference conducted by the Commission in relation to her application.

• [36] I also conclude that the Applicant has not provided a reasonable explanation for failing to comply with the order for production that I issued on 4 September 2025. No application has been made to set aside or vary that order. I am satisfied, for the purposes of s.399A(1)(b) of the Act, that the Applicant's failure to comply with the order for production issued was unreasonable.

• [37] In the circumstances described at [6], [11], [17], [21], [25]-[26] and [35] above, I am empowered to exercise the discretion pursuant to s.399A of the Act to dismiss the substantive unfair dismissal application. While this discretion is to be exercised with caution,[4] I am satisfied that it should be exercised given that:

(a) The Applicant has unreasonably failed to attend conferences conducted by the Commission in relation to the application;

(b) The Applicant has unreasonably failed to comply with an order made by the Commission;

(c) The Commission has afforded the Applicant an adequate opportunity to respond to the s.399A application or otherwise engage with the Commission about her substantive unfair dismissal application; and,

(d) The Applicant has been on notice of the potential consequences of her non-compliance.

• [38] For the reasons given, the Respondent's application under s.399A is granted.

• [39] The Applicant's application for an unfair dismissal remedy is dismissed pursuant to s.399A(1) of the Act. An Order to this effect will be issued with this decision.[5]

[1] [2021] FWCFB 875.

[4] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925, [31].

[5] PR792576

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