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 21 May 2025, Mr Basanta Shrestha (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 by Serco Australia Pty Limited (the Respondent) was unfair. The Respondent raised a jurisdictional in its Form F3 that the Applicant was 'not dismissed' within the meaning of s 386 of the Act. The matter was allocated to my Chambers on 19 June 2025. Following the conduct of a Mention on 25 June 2025 directions were issued to the parties on 4 July 2025 setting down a timetable for a hearing and for the filing of material in relation to the jurisdictional objection.

• [2] On 9 July 2025, the Respondent filed an F52 application seeking orders for the production of various documents by the Applicant. After considering the application, I determined to grant the application, and the order sought was issued by my Chambers to the Respondent on 9 July 2025 for service upon the Applicant. The Respondent subsequently served the order on the Applicant on 9 July 2025 requiring him to provide various documents to the Commission by 12.00 midday on Wednesday 16 July 2025. The Applicant did not provide the documents ordered or contact my Chambers to seek to have the order set aside or varied.

• [3] In circumstances where the Applicant failed to comply with the document production order, a non-compliance hearing was listed for 12.00 midday on 21 July 2025. In advance of this hearing the Respondent wrote to my Chambers and the Applicant on 18 July 2025 foreshadowing that it would make an application at the hearing that the Applicant's unfair dismissal application be dismissed pursuant to s 399A of the Act. The Applicant responded to the on-line meeting invitation for the non-compliance hearing sent out by my Chambers by 'declining' the meeting. He also failed to respond to a telephone call made by my Associate immediately prior to the start of the Non-Compliance hearing.

• [4] The non-compliance hearing proceeded at 12.00 midday on 21 July 2025 as listed. 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 non-compliance 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 and orders of the Commission. Following the non-compliance hearing, correspondence was sent by my Chambers to the Applicant on 21 July 2025 in the following terms;

Your non-compliance hearing was held today at 12pm.

At today's hearing, an application was made by the Respondent pursuant to s 399A(2) 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 an order of the Commission to produce documents by 12pm, 16 July 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, Wednesday 23 July 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 have been vacated.

• [5] No submissions were filed by the Applicant in response to the 21 July 2025 correspondence. Nor did the Applicant contact my chambers in relation to the orders for production of documents served on him 9 July 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 failing to comply with the document production order issued by the Commission and served on him on 9 July 2025 and then by failing to attend the non-compliance hearing on 21 July 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 unreasonably failed to comply with an order 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.

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