s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - s.587 - failure to prosecute case - failure to file material by due dates - failure to attend jurisdictional hearing - application dismissed.

[1] On 6 February 2026, Mr Amos Harradine (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Eastern Maar Aboriginal Corporation Rntbc (Respondent) on or about July 2025.

[2] In its Form F3 Employer Response, the Respondent has raised two jurisdictional objections. It contends that the Applicant's application is lodged out of time and is statute barred by reason of the execution of a deed of release dated 29 September 2025.

[3] Upon the matter being allocated to me on 26 February 2026, I requested from the Respondent a clearer copy of the settlement deed and reasons from the as to why the matter should not be dismissed. On 2 March 2026, Chambers sent an email to the parties, enclosing the settlement deed and seeking the Applicant's views. The relevant parts of the email state:

"The Commissioner has considered the material provided by the Respondent (attached). It is apparent from the material, and it is the Commissioner's preliminary view that this matter has resolved.

The Commissioner further notes that the Applicant failed to respond to correspondence ordered by the Commission on Thursday, 26 February 2026.

The Commissioner is now considering whether to dismiss the application under s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success.

If Mr Harradine considers that the Commissioner's preliminary view is incorrect, please provide your views - supported with any relevant material - by 4:00PM AEDT Wednesday 4 March 2026. Subject to what you provide, the Commissioner will consider the next steps to be taken as appropriate, including giving the respondent an opportunity to provide any submissions."

"If the Commissioner does not hear from you by 4:00pm Wednesday, she will proceed to determine whether to dismiss your application under s.587(1)(c) of the Act on the basis that it has no reasonable prospects of success, on the material before her." (original emphasis and emphasis added)

[4] On 4 March 2026, the Applicant forwards an email chain the Commission, which by and large, has little bearing on the questions raised by me in the email referred to above at paragraph [3]. On the same day, I issue an email. The relevant parts of the email state:

"Commissioner Cirkovic notes that your emails today, 4 March 2026 fail to engage with the questions posed by the Commissioner on Monday, 2 March 2026.

That is, on the material provided, the Commissioner's preliminary view is that this matter has resolved by way of an executed deed of settlement.

In those circumstances, please reply with whether you wish to discontinue your application or whether you consider the Commissioner's preliminary view is incorrect, attaching the relevant material you intend to rely on. Please respond **by no later than 4:00PM AEDT today." (**original emphasis)

[5] At 5:48pm, the Applicant forwards an email to the Commission. The relevant parts of the email state:

"I respectfully advise that no executed deed of settlement exists. I have not entered into a binding settlement agreement resolving this application.

Accordingly, I do not intend to discontinue my application and request that the matter proceed as listed."

[6] On 5 March 2026, I sent an email to the parties. The relevant parts of the email state:

"The Commissioner notes that your correspondence fails to address the issue raised by the Respondent that a deed of release was executed by the parties.

The Commissioner refers you, relevantly, to the following term in the deed:

'The Employee releases and forever discharges EMAC, its officers, employees, and agents from all claims, demands, actions, suits, or proceedings the Employee has or may have arising from or in connection with their employment and its termination, whether arising under statute, common law, equity, or otherwise and any act or omission occurring prior to the date of this Deed.'

In light of the above, it remains the Commissioner's preliminary view that a full and final deed has been executed.

If you still wish to proceed with this application, please advise Chambers by no later than close of business today and the Commissioner will hear from the parties on Thursday, 12 March 2026 as to the Respondent's application to dismiss the matter on the grounds that 'it is barred by the Deed of Release and the Commission should decline to grant any relief'." (original emphasis)

[7] Having received no response from the Applicant to the above email, on 6 March, a notice of listing is sent to the parties, listing the matter for Mention/Hearing on 12 March 2026. The relevant parts of the email state:

"The parties will be required to address the Commissioner as to the Respondent's application to dismiss the matter on the grounds that 'it is barred by the Deed of Release and the Commission should decline to grant any relief'.

Failure to attend the mention/hearing may result in the Commissioner relying on the material before her and the Application may be dismissed pursuant to s.587(1)(c)." (emphasis added)

[8] At 12:01pm on 11 March 2026, the Applicant sends an email to the Commission, requesting an adjournment of the Mention/Hearing listed for the following day. The adjournment request is made on the basis of "Sorry Business within my community, which requires my immediate attendance and participation".

[9] At 12:41pm on 11 March 2026, my Chambers sent an email to the parties. The relevant parts of the email state:

"The Applicant has provided no detail as to how long his adjournment request on the grounds of Sorry Business is required nor is any detail provided as to the substance of the request.

Should the Applicant wish to pursue his request, please provide the above detail as a matter of urgency.

At this stage, the matter is proceeding tomorrow." (emphasis added)

[10] The Applicant failed to respond to the correspondence of 11 March 2026 and did not appear at the Mention/Hearing on 12 March 2026. My Chambers attempted to contact the Applicant and left a voicemail for him to join the Teams Hearing link. On that basis, the Mention/Hearing was vacated.

[11] Following the Mention/Hearing on 12 March 2026, at approximately 11:46am, my Chambers sent an email to the parties. The relevant parts of the email state:

"Commissioner Cirkovic refers to the mention/hearing held today, 12 March 2026 at 11:00AM AEDT and the Applicant's failure to attend.

Further, the Commissioner notes the Applicant's failure to respond to correspondence issued by Chambers at 12:41PM on 11 March 2026, asking the Applicant to provide details as to the length of his request for an adjournment of the matter and further details as to the substance of the request. The Commissioner notes that the Applicant has not responded to that correspondence.

Additionally, the Commissioner notes that the Applicant has, as yet, failed to engage with the questions posed by the Commissioner on 2 March 2026."

On the material provided and currently before the Commission, it remains the Commissioner's preliminary view that this matter has been resolved by way of an executed deed of settlement.

In the absence of the Applicant's response to the specific matters raised by the Commissioner by no later than 4:00PM AEDT on Monday, 16 March 2026, the Commissioner may dismiss your application before her and close the file." (original emphasis and emphasis added)

[12] At 1:33pm on 16 March, 2026, the Applicant sent an email to the Commission, copying in the Respondent, requesting a 14 to 21 day adjournment on the basis of "attending sorry business [and] fulfilling cultural obligations of mourning". Further, the Applicant repeats his earlier statement that "no executed settlement exists" and requests a copy of the executed deed.

[13] At 4:01pm on 16 March 2026, my Chambers sent an email to the parties, enclosing the settlement deed. The relevant parts of the email state:

"The Commissioner refers you to correspondence of 2nd March and 5th March, when the Commission provided you with a copy of the Deed of Release provided to the Commission by the Respondent. Attached to this email is another copy of the Deed.

The Commissioner notes that to date, you have failed to provide a response to the central question posed by the Commissioner. In this regard, the Commissioner refers you relevantly to the following term in the deed: 'The Employee releases and forever discharges EMAC, its officers, employees, and agents from all claims, demands, actions, suits, or proceedings the Employee has or may have arising from or in connection with their employment and its termination, whether arising under statute, common law, equity, or otherwise and any act or omission occurring prior to the date of this Deed.'

The Commissioner also refers you to the signature above your name and the accompanying witness signature of Ms Emma Peace.

As stated in correspondence of 2nd and 5th March and in light of the above, it remains the Commissioner's preliminary view that a full and final deed has been executed.

Please address the Commissioner's direction to provide a response to the Respondent's application to dismiss the matter on the grounds that "it is barred by the Deed of Release and the Commission should decline to grant any relief" by no later than close of business, Thursday 19 March 2026.

Further, could the Respondent please provide their views as to the adjournment request by no later than close of business, Thursday 19 March 2026." (original emphasis and emphasis added)

[14] On 19 March, the Respondent sent an email to the Commission, copying in the Applicant, requesting that the matter be dismissed pursuant to s.587(1)(c).

[15] On 24 March, my Chambers sent an email to the parties with a listing for Jurisdictional Hearing on Thursday, 16 April 2026. The relevant parts of the email state:

"The parties will be required to address the Commissioner as to the Respondent's application to dismiss the matter on the grounds that "it is barred by the Deed of Release and the Commission should decline to grant any relief".

By no later than 4:00PM AEDT on Wednesday, 1 April 2026, the Applicant (Mr Harradine) is to file with the Commission and serve on the Respondent any witness statements, other documentary evidence and submissions on which it intends to rely in response to the Respondent's application to dismiss the matter.

By no later than 4:00PM AEST on Wednesday, 8 April 2026, the Respondent is directed to file with the Commission and serve on the Applicant any witness statements, other documentary evidence and submissions on which it intends to rely in response to the Applicant.

Should the Applicant fail to appear at the Hearing, the Commissioner will determine the matter on the material before her and the Application may be dismissed pursuant to s.587(1)(c).

Further, the parties should advise the Commission by no later than close of business, Tuesday, 12 April 2026 of any witnesses they intend to call at the Hearing and appearances. All witnesses must attend the hearing with a copy of their witness statement(s)." (original emphasis and emphasis added)

[16] The Applicant failed to comply with those Directions. On 2 April 2026, my Chambers sent a non-compliance email to the Applicant. The relevant parts of the email state:

"I refer to the Directions issued by Commissioner Cirkovic on 24 March 2026.

A Direction was issued on the Applicant to provide to the Commission and to the Respondent by 4:00pm on Wednesday 1 April 2026:

• any witness statements, other documentary evidence and submissions on which it intends to rely in response to the Respondent's application to dismiss the matter.

We have no record of any material or response being received in accordance with that Direction. Non-compliance with these Directions has the potential to impact on any continuation of the proceedings.

Your urgent response to your apparent failure to comply with the Directions is required by no later than close of business on Tuesday, 7 April 2026.

As previously noted, should the Applicant fail to appear at the Hearing, the Commissioner will determine the matter on the material before her and the Application may be dismissed pursuant to s.587(1)(c)." (original emphasis and emphasis added)

[17] On 9 April 2026, the Applicant sent an email to the Commission. The relevant parts of the email state:

I write in urgent response to the correspondence from Chambers regarding my apparent non-compliance with the Directions issued on 24 March 2026.

Firstly, I sincerely apologise to the Commission for my failure to comply with the Directions within the required timeframe. This was not intentional or a disregard of the Commission's authority.

At the relevant time, I was involved in sorry business, which involves significant cultural obligations of mourning within my family. These obligations required my full attention and impacted my capacity to prepare and file the required material. I respectfully ask the Commission to take this into consideration.

I confirm that I fully intend to comply with the Directions and to provide all required material, including any witness statements, documentary evidence, and submissions in response to the Respondent's application.

I also wish to reiterate that no executed deed of settlement exists between the parties. I have not entered into any binding settlement agreement and I do not consider this matter to be resolved. Should the Respondent assert otherwise, I respectfully request that they be directed to produce any purported executed deed of settlement relied upon.

I remain committed to engaging fully with the Commission's process moving forward and complying with any further Directions issued.

Given the circumstances, I respectfully submit that dismissal of the application at this stage would result in procedural unfairness, particularly where the matter remains unresolved and I am seeking a short extension to comply.

I respectfully request that the Commission grant the extension sought and allow the matter to proceed."

[18] On 10 April, my Chambers sent an email to the Applicant, again enclosing a copy of the executed deed. The relevant parts of the email state:

"You have been provided with a copy of the signed deed by the Respondent on 26 February 2026, by Chambers on 2 March 2026 and 16 March 2026 and again, as part of the Respondent's submissions on 8 April 2026.

The Commissioner notes that you have failed to engage with the Commissioner's substantive request on numerous occasions.

The Commissioner also notes that as yet, you have failed to provide details as to the nature of the Sorry Business.

The matter will be proceeding to Jurisdictional Hearing on Thursday, 16 April 2026 at 2:00PM AEST.

The parties will be required to address the Commissioner as to the Respondent's application to dismiss the matter on the grounds that "it is barred by the Deed of Release and the Commission should decline to grant any relief"." (emphasis added)

[19] The Applicant failed to attend the Hearing at 2:00pm today. He has not contacted my Chambers at all or provided any explanation for his absence. My Associate attempted to contact the Applicant by telephone on the number provided by him to the Commission and via email.

[20] It is now clear that the Applicant is not taking steps to prosecute his claim and I will dismiss the application for that reason under s 587 of the Act. The possibility of dismissal under s 587 was expressly communicated to the Applicant in the correspondence from my chambers on 2 March, 6 March, 12 March, 24 March and 2 April 2026. I also observe that 31 days have elapsed since the Applicant's request for an adjournment on 16 March 2026 for a period of between 14 to 21 days. I am also satisfied that, in the absence of any evidence for his claim, the claim has no reasonable prospects of success.

[21] Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.

[22] Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success."

[23] I consider that the clause "Without limiting when the FWC may dismiss an application" at the commencement of s 587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) - (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.

[24] When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) - (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the Applicant has not shown a willingness to prosecute his case. He failed to comply with directions on multiple occasions, failed to attend the Mention/Hearing and failed to attend the Jurisdictional Hearing.

[25] Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.

• [26] An Order[1] to this effect will be issued with this Decision.

[1] PR798729

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