s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed pursuant to s 399A of Fair Work Act 2009.

• [1] On 30 May 2025, Mr Ajay Gurung (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment with Serco Australia Pty Limited (the Respondent) was unfair. The Respondent raised a jurisdictional objection that the application was filed outside the statutory 21-day filing period in its Form F3.

• [2] The matter was allocated to my Chambers on 3 June 2025 and directions were issued to the parties on 6 June 2025 setting down a timetable for a hearing and for the filing of material by both parties in relation to the jurisdictional objection. The directions relevantly included the following;

[1] The submissions must include all relevant facts, dates and incidents to support all claims made.

[2] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[3] Please note that witness statements are designed to take the place of evidence-in-chief.

[6] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[7] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

• [3] The Applicant failed to file his material by 5pm on 13 June 2025 as required by the directions and also failed to contact my Chambers to seek an extension of time for the filing of his material. A non-compliance hearing was subsequently listed for 10.00am on 18 June 2025 shortly before which my Chambers received an email from the Respondent advising it had been notified that the Applicant would not be attending the non-compliance hearing that morning. The Applicant did not contact or otherwise advise my Chambers directly of his intention not to attend the non-compliance hearing. An email was subsequently sent to the Applicant by my Chambers advising him that the non-compliance hearing would proceed as listed that morning.

• [4] The Respondent was represented at the non-compliance hearing by Mr Paul Brown of Baker McKenzie who was granted permission to appear pursuant to s 596(2) of the Act. At the hearing, Mr Brown made an oral application that the unfair dismissal application of the Applicant be dismissed pursuant to s 399A due to the Applicant having unreasonably failed to comply with directions of the Commission. Following the non-compliance hearing, correspondence was sent by my Chambers to the Applicant on 18 June 2025 in the following terms;

Your Non-Compliance Hearing was held today at 10am.

At this morning's hearing, an application was made by the Respondent pursuant to ss 399A(1)(a) and (b) of the Fair Work Act 2009 (Cth) (the Act) that your application for an unfair dismissal remedy be dismissed due to:

• failing to comply with directions of the Commission dated 6 June 2025 by not filing submissions and material in support of your application by 5pm, Friday 13 June 2025; and

• failing to attend today's Non-Compliance Hearing.

For your reference, 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."

You may file submissions and any other material which you seek to rely on as to why your application for an unfair dismissal remedy should not be dismissed pursuant to s 399A of the Act by 5pm, Friday 20 June 2025.

Should either party seek to be heard in relation to the above they should contact Chambers. Otherwise, the matter will be dealt with on the papers.

Please note that pending the outcome of the s 399A application made by the Respondent, the directions and notice of listing have been vacated."

• [5] No submissions were filed by the Applicant in response to the 18 June 2025 correspondence. Nor did the Applicant contact my chambers in relation to either the original directions, the non-compliance hearing or the correspondence sent to him on 18 June 2025.

• [6] Turning now to whether the application should be dismissed, s 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."

• [7] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by 5pm, Friday 20 June 2025, I will determine the application on the papers.

• [8] The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by initially failing to file his materials by 13 June 2025 and then failing to attend the non-compliance hearing on 18 June 2025. He has not provided an acceptable explanation for his non-compliance despite being afforded an opportunity to do so. In all of these circumstances I am satisfied that the Applicant has unreasonable failed to comply with directions of the Commission and also unreasonably failed to attend a hearing of the Commission.

• [9] In the circumstances I have decided to grant the Respondent's application under s 399A(1), and the Applicants' unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

Printed by authority of the Commonwealth Government Printer