Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - - s.399A application to dismiss - application granted.

• [1] On 26 May 2025, Mr Ananda Ghimire made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Serco Australia Pty Limited.

• [2] A conciliation conference was scheduled for 3 July 2025. On 3 July 2025, the Commission Conciliator (Conciliator) sent a correspondence to the parties:

"This email is to confirm that Matter Number U2025/9059 Mr Ananda Ghirmire (sic) v Serco Australia Limited will be held over until COB Monday 7 July 2025.

Please advise me by email on or before COB Monday 7 July 2025 (with copy to all parties) if the matter does settle or the Applicant elects to discontinue.

If I do not hear from the parties that the Applicant has discontinued or the matter has settled on or before this time / date - I will move the matter on for hearing."

• [3] On 10 July 2025, the Conciliator sent another correspondence to the parties to follow up as below:

"I have not received any further updates on this matter. Please be advised that if I do not have confirmation that the matter has settled or the Applicant has discontinued by 12pm tomorrow Friday 11th July 2025, I will move this matter on for hearing."

• [4] The matter was allocated to my Chambers on 15 July 2025, and a Mention was scheduled for 4 August 2025.

• [5] On 4 August 2025, Mr Ghimire did not attend the Mention. During the Mention, the Respondent made a s.399A application to dismiss the Applicant's application.

• [6] On 4 August 2025, a Direction was made that invited Mr Ghimire to provide evidence and submissions regarding the Respondent's application. Mr Ghimire did not respond to those directions and I have not received any communication from the Applicant since the day of the Staff Conciliation.

(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."

• [8] In this matter there are no facts in dispute that require me to conduct a hearing (per s.397).

• [9] Quite obviously Mr Ghimire has "failed to attend a conference conducted by the FWC" (per s399A(1)(a)). However, Mr Ghimire's application can only be dismissed if he "unreasonably" failed to attend a conference conducted by the FWC.

• [10] Mr Ghimire has had ample opportunity to explain his failure but has not done so. Crucially, Mr Ghimire has also had the opportunity to make a submission about whether his application should be dismissed under s.399A.

• [11] Mr Ghimire has not provided any evidence or explanation that would suggest that his failure to attend the Mention was reasonable. In fact, it appears that Mr Ghimire has abandoned his application.

• [12] In the circumstances, I am satisfied that Mr Ghimire's application should be dismissed.

• The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Ananda Ghimire on 26 May 2025 is dismissed.

Printed by authority of the Commonwealth Government Printer