s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy -s.399A -application dismissed

• [1] On 28 July 2025, Mr Bailey Brown made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) against Sunset Metal Roofing Pty Ltd (the Respondent) seeking a remedy in respect to unfair dismissal. The Respondent objects to the application on the basis it says the termination of Mr Brown's employment occurred under the small business fair dismissal code (SBFDC).
• [2] The application was allocated to my chambers on 14 October 2025 after having earlier been the subject of a conference organised by the Fair Work Commission's conciliation service. According to the Commission's file, the Applicant failed to attend that conference.
• [3] I listed the matter for a case management hearing, to occur via Video on 21 October 2025.
• [4] The Respondent attended the case management hearing on 21 October 2025, as did Mr Brown, albeit in a vehicle that did at times appear to be moving.
• [5] At the case management hearing, I made verbal Directions for the scheduling of the matter.
• [6] My Directions were sent to the parties in writing on 22 October 2025. The Directions provided that the Respondent was directed to file and serve a Submission and provide any other material it wished the Commission to have regard to by 24 October 2025. Mr Brown was directed to file and serve a Submission and provide any other material by 29 October 2025.
• [7] A short submission was filed and served by the Respondent on 27 October 2025.
• [8] To date there had been no material filed by Mr Brown, despite my written Direction that he file Submissions made by 29 October 2025.
• [9] On 6 November, my Chambers emailed Mr Brown advising him that he had not complied with Directions made in the matter and provided him with a further chance to do so. The correspondence warned Mr Brown that when a person does not comply with Directions made by the Commission and does not appear to be interested in continuing their case, the matter can be dismissed. It said that I was considering dismissing his application. It sought a response to be provided by 4:00PM the next day, 7 November 2025.
• [10] No response has been provided by Mr Brown.
• [11] On 12 November 2025 the Respondent sent correspondence to my chambers confirming it seeks that Mr Brown's application be dismissed pursuant to s 399A of the Act.

• [12] Section 399A(1) provides that the Commission may, subject to an application being made by an employer, dismiss an application under Division 4 of Part 3-2 of the Act if the Commission is satisfied that the applicant has unreasonably failed to attend a conference or hearing held by the Commission, or failed to comply with a direction or order of the Commission relating to the application.
• [13] In this matter, I consider it apparent that Mr Brown has not properly participated in this proceeding it appears he does not intend to do so. In particular, since the application was filed, he has only participated in the proceeding momentarily, after, having failed to attend the first conciliation arranged in relation to his application. Otherwise, he has failed to comply with the Directions of the Commission and has done nothing to prosecute his application.
• [14] The Respondent on the other hand has largely complied with Directions made for the conduct of the matter and will suffer ongoing prejudice should it be asked to continue to participate in the proceeding when Mr Brown is not.
• [15] I consider that Mr Brown has been provided with procedural fairness, having been given time to provide a response. He has not responded since the case management hearing. At all times he has been made aware of the possibility his application may be dismissed for his failure to participate in it and failure to follow Directions.
• [16] Mr Brown's application is dismissed, and an Order[1] will issue to that effect with this decision.

[1] PR793635

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