Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

The Trustee For Servco Australia Echuca No 2 Unit Trust

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

• [1] On 27 May 2025 Mr Brandon Gaertner-Sullivan made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) against The Trustee For Servco Australia Echuca No 2 Unit Trust (the Respondent) seeking a remedy from the Commission in respect of what he alleged was an unfair dismissal of his employment.
• [2] The matter was originally listed for a staff conciliation on 20 June 2025 which was cancelled due to the conciliator's unavailability. At the request of Mr Gaertner-Sullivan the matter was re-listed for a staff conciliation to occur on 25 July 2025. The Respondent attended the conference, but Mr Gaertner-Sullivan did not.
• [3] The application was allocated to my chambers on 25 July 2025.
• [4] I listed the matter for a mention to occur on 1 August 2025. The Respondent attended the mention, but Mr Gaertner-Sullivan did not.
• [5] At the appointed time, my associate contacted Mr Gaertner-Sullivan by phone and email to remind him to join the mention. There was no answer or response.
• [6] During the mention, the Respondent confirmed that it seeks the Commission dismiss the application and I took this to be a verbal application pursuant to s 399A of the Act.
• [7] On 1 August 2025 I issued Directions in relation to the Respondent's application for the dismissal of Mr Gaertner-Sullivan's application. The parties were directed to file and serve a short email setting out why the application should or should not be dismissed (as the case may be) by 4 August 2025 (in the case of the Respondent) and 6 August 2025 (in the case of Mr Gaertner-Sullivan).
• [8] On 1 August 2025 I received from the Respondent an email, which was also copied to Mr Gaertner-Sullivan, which said:

"Please accept this email as our official request to dismiss this application. I make this request for the following reasons:

We have provided all relevant information well within the time frames requested

• We have attended both conciliations and the hearing
• The applicant has not attended any of the above
• We are running a small business operation whereby our time is very valuable and I can not afford to lose more time in further hearings or conciliations when the applicant does not attend.
• We feel we acted fairly in this dismissal case and gave the applicant ample opportunity to address performance concerns, in fact, over a prolonged period of time being approximately 18 months and with the appropriate written communications to the applicant during that time.

We respectfully request that the application be dismissed based on the above information."

• [9] There has been no material filed by Mr Gaertner-Sullivan.

• [10] 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.
• [11] Mr Gaertner-Sullivan did not attend the staff conciliation convened (at his request) on 25 July 2025 nor did he attend the mention conducted on 1 August 2025 in relation to his application. He was advised by my chambers that any response to the Respondent's application to have the application dismissed under s.399A was to be provided in writing by 4:00PM on 6 August 2025.
• [12] No response was received from the Mr Gaertner-Sullivan. No other explanation has been provided and there has been no contact from the Mr Gaertner-Sullivan in relation to the application.
• [13] I am satisfied that Mr Gaertner-Sullivan has unreasonably failed to attend a conference held by the Commission on 25 July 2025, a hearing held by the Commission on 1 August 2025 and failed to comply with a direction of the Commission dated 1 August 2024. Accordingly, the application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act and an order[1] will issue to that effect with this decision.

[1] PR790376

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