Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - non-compliance - dismissal for want of prosecution - application dismissed.

• [1] On 17 June 2025, Mr Christian Fabre applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy due to his dismissal from his employment with Solindo Pty Ltd Trading AS Alpha HPA (Alpha).

• [2] I listed the matter for a case management conference for direction via Microsoft Teams on 20 August 2025 to explain and discuss next steps to the parties, as well as issue directions. Mr Fabre was required to file his material by 3 September 2025.

• [3] Mr Fabre did not comply with my directions and did not file any material on 3 September 2025. My Chambers did not receive any communications from Mr Fabre providing a reason as to why he did not file his material nor a request for an extension of time.

• [4] On 4 September 2025, my Chambers sent an email to Mr Fabre seeking an explanation as to why he did not comply with the directions issued. Mr Fabre responded that same day with the following:

"Im (sic) finding it incredibly difficult to secure the few witnesses i (sic) had mentioned, due to directives given, unfortunately this does not create a fair and equal opportunity for me to share the experiences i (sic) have endured, i (sic) have replied to my friends email earlier today, advising that there is still an option to come to an agreement and finish this process."

• [5] On 5 September 2025 at 11:06am, my Associate sent the following email to the parties:

Chambers asks that you please confirm whether you wish to discontinue your application or if you are seeking an extension of time to file your materials. Please confirm your intended course of action by no later than 4pm Friday, 5 September 2025.

• [6] No response was received from Mr Fabre regarding the above email.

• [7] On 8 September 2025, as no response was received from Mr Fabre, my Associate sent the following email to him:

Reference is made to the above matter and the previous email sent to you from Chambers on 5 September 2025.

Chambers has still not received a response from you.

You are required to provide a response by by (sic) 5:00pm today, 8 September 2025. If no response is received from you, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

If you do not wish to continue with your application, please advise as such."

• [8] No response was received from Mr Fabre regarding the above email.

• [9] On 9 September 2025, my Associate attempted to contact Mr Fabre by phone at 11:53am but was unable to leave a voice message. Mr Fabre did not return the call or otherwise respond.

• [10] That same day, my Associate sent the following email to Mr Fabre:

Reference is made to the above matter and previous emails below.

Chambers attempted to contact you via your mobile phone today but was unable to reach you.

As you have not provided any responses, the Commissioner will move to dismiss your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

If you wish to provide a response in respect of the above you may do so by 12:00pm tomorrow, 10 September 2025."

• [11] To date, no correspondence or telephone contact has been received from Mr Fabre.

• [12] Section 587 of the Act provides as follows:

(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.

• [13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

• [14] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

• [15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Fabre has failed to comply with directions and respond to various correspondence from Chambers, and provide any reasonable explanation to the Commission regarding this failure. Mr Fabre has shown no willingness to prosecute his case and has taken no steps to do so.

• [16] In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the Applicant has failed to prosecute their case without examining the merits.

• [17] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant's application for want of prosecution pursuant to s.587(3)(a) of the Act.

• [18] An order to that effect will issue with this decision.

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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