s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - s 587 - application dismissed

• [1] On 2 August 2025 Mr Bayley Michalczak made an application pursuant to s 365 of the Fair Work Act 2009 (the Act) alleging that the dismissal of his employment occurred in a manner that was in contravention of the Act. The application is directed against his former employer, Harley and Sons Pty Ltd (the first Respondent) and also Mr Andy Harley (the second Respondent).

• [2] The Respondents objected to the application on the basis they said Mr Michalczak was not dismissed within the meaning of ss 365 and 386 of the Act because he was not an "employee" within the meaning of s 15AA of the Act.

• [3] The application was allocated to my chambers on 3 September 2025and I listed the matter for a mention to occur on 11 September 2025.

• [4] The Respondents attended the mention, but Mr Bayley Michalczak did not.

• [5] At the appointed time, my associate contacted Mr Bayley Michalczak by phone and email to remind him to join the conference. There was no answer or response.

• [6] Shortly after the mention ended, Mr Bayley Michalczak emailed my chambers to indicate that he could not attend due to the death of a pet.

• [7] During the mention, the Respondents submitted that, on the basis of Mr Michalczak's failure to attend the conference, the Commission should consider dismissing the application.

• [8] The matter was listed for further mention which took place on 22 September 2025. Both parties attended and directions were made for the scheduling of the matter, in which parties were asked to address indicia relating to the question as to whether Mr Michalczak was engaged by the first Respondent as an employee or an independent contractor.

• [9] Mr Michalczak's materials were due on 29 September 2025. Nothing was filed by this date and on 1 October 2025 my chambers emailed Mr Michalczak and said:

You have made an application in the Fair Work Commission that your dismissal of employment with Harley and Sons Pty Ltd occurred in a manner that contravened the Fair Work Act 2009.

Harley and Sons claims that you were not "dismissed" because you were not an employee - you were a contractor.

On 23 September 2025 the Commission issued Directions about how this matter is to proceed. These were explained to you in a mention hearing conducted on 22 September 2025.

The Directions required you to file and serve a document outlining answers to various questions by 4:00PM on 29 September 2025.

• - You should attend to this matter immediately.

• - You should provide the document as soon as possible, and by no later than 4:00PM tomorrow, 2 October 2025.

In the event that you fail to do this, please be aware that the failure to comply with Directions in relation to a matter before the Commission can result in the dismissal of a person's case.

• [10] Mr Michalczak did not respond to this email or file any material by 2 October 2025. I listed the matter for further mention to take place on 7 October 2025. My chambers again reminded Mr Michalczak, via email, that:

Your continued failure to engage or communicate about this matter, and/or your failure to attend the mention hearing on 9:30AM on Tuesday 7 October 2025 is likely to result in your application being dismissed.

• [11] The Respondents attended the mention, but Mr Michalczak did not.

• [12] At the appointed time, my associate contacted Mr Michalczak by email to remind him to join the conference. There was no answer or response.

• [13] During the mention, the Respondents confirmed that they seek the Commission dismiss the application. I am prepared to treat this submission as an application made by the Respondents pursuant to s 587(3)(b) of the Act.

• [14] Section 587 of the Act provides:

(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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 32, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [15] Frequently, this section of the Act is the basis upon which the Commission may dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance1. The words "without limiting when the FWC may dismiss an application" in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).

• [16] Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge2. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant's procedural fairness (although without necessitating a hearing).

• [17] In this matter, I consider it apparent that Mr Michalczak did not properly participate in his application after he filed it and does not intend to do so. In particular, since the application was filed, he has only participated in the proceeding momentarily, after it was necessary for my chambers to contact him and encourage him to do so, but his participation was short-lived. Otherwise, he has failed to attend mentions and failed to comply with the Directions of the Commission without explanation.

• [18] The Respondents on the other hand have attended three mentions in the matter and will suffer ongoing prejudice should they be asked to continue to participate in the proceeding when Mr Michalczak is not.

• [19] I consider that Mr Michalczak has been provided with procedural fairness, having been had explained to him at a mention the requirements of the Commission's Directions in this matter, was provided with an extension of time to respond to these Directions when he initially failed to do so and has been provided with several reminders, and warnings that his continued failure to participate in the proceeding may result in the dismissal of his application (to which he provided no response).

• [20] Mr Michalczak's application is dismissed, and an Order[1] will issue to that effect with this decision.

[1] PR792416

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