s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - matter dismissed under s.587 at the Commission's own initiative

[1] On 23 July 2025, Mr Brandan Murray (the applicant) filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the application is Tilerescue Frankston Pty Ltd.

[2] On 24 September 2025, I listed this matter for a Mention to 16 October 2025, to discuss the further programming of the matter. On 29 September 2025, the respondent wrote to my Chambers to request an adjournment of this matter.

[3] On 30 September 2025, my chambers sought the availability of the parties for an adjournment to a later date. The applicant wrote to my chambers later that day advising that he '[did not] hold a specific view' on the adjournment request and that the parties had reached an in-principle agreement to be finalised prior to 13 October 2025. As a result, I adjourned this matter pending a further update from the parties by close of business on 10 October 2025 as to whether or not the matter had resolved and advised that if the matter has not resolved by that date, I would list it for a Mention after 27 October 2025.

[4] On 13 October 2025, my chambers wrote to the parties noting that there had been no update by the 10 October deadline and seeking a status update by close of business that day. The parties did not respond to this and subsequently, I listed the matter for a Mention on 3 November 2025.

[5] The respondent did not attend the Mention on 3 November 2025. At the Mention, I granted the applicant until the end of November to advise my chambers whether the matter had resolved. My chambers confirmed this outcome in writing to the parties following the Mention and advised that, should not update be received, I would list the matter for Hearing on 19 February 2026 and issue Directions. The applicant confirmed receipt of this email.

[6] The parties did not provide an update by the end of November as directed. On 1 December 2025, my chambers wrote to the parties advising that Directions would be issued unless the parties advised the matter had resolved by 4pm on that day. At 4:36pm on 1 December 2026, noting that the parties had failed to provide an update, I issued Directions (the 1 December Directions) and listed the matter for arbitration on 19 February 2026.

[7] The 1 December Directions required the applicant to file and serve any material by 4:00pm on Monday, 29 December 2025. The applicant failed to do so. On 5 January 2026, my chambers wrote to the applicant directing him to urgently file his materials by 4pm on 5 January 2026 and providing him with access to resources on the Commission's website regarding when the Commission may dismiss an application. The applicant did not comply with the 5 January 2026 date.

[8] On 8 January 2026, my chambers again wrote to the applicant in the following terms (emphasis in original):

I refer to the attached Directions and below email.

Mr Murray, we have not received any material from you.

We wrote to you on 5 January 2026 informing you of the consequences of non-compliance with directions, seeking your reasons for failing to comply and your compliance. We have not received any reply from you.

The Deputy President is proposing to dismiss the application under s.587 of the Fair Work Act 2009 (Cth).

Your urgent response to your failure to comply with the Directions is required. You must comply with the Directions as soon as possible and you must provide reasons why you have not complied with the Directions to date.

If you do not file your materials by 4:00PM AEDT on Friday 16 January 2026, your matter may be dismissed.

[9] The applicant did not provide any response to this email from my chambers and did not file any material by16 January 2026 deadline. To date, the Commission is not in receipt of any material from the applicant. The applicant's last correspondence with the Commission was on 3 November 2025.

[10] Section 587 of the Act confers power on the Commission to dismiss an application made under part 3-1 of the Act. Section 587 is in the following terms.

(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

(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 3 - 2, 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:

[11] I am satisfied that the applicant does not intend to participate in his application in the Commission. I have reached his view in circumstances where the applicant has failed to file any material in compliance with directions, has failed to respond to several enquiries from the Commission (as set out above) regarding his non-compliance, has not otherwise explained his non-compliance and has not communicated with the Commission since 3 November 2025. In circumstances where the applicant does not intend to participate and pursue his application in the Commission, I conclude that the application has no reasonable prospects of success.

[12] In determining whether to dismiss the application, I have had regard to s 577 which includes the requirements that the Commission perform its functions and exercise its powers in a manner that is fair and just and is quick and informal and avoids unnecessary technicalities.

[13] I am satisfied that the application should be dismissed under s.587. I order that application be dismissed.

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