s.394 - Application for unfair dismissal remedy

[1] On 12 February 2026, Mr Damien Keele-Firth (Mr Keele-Firth) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Axiis Contracting Pty Ltd (Axiis Contracting).

[2] On 3 March 2026, Axiis Contracting filed a Form F3 - Employer response to unfair dismissal application in which they did not raise a jurisdictional objection.

[3] On 10 March 2026, the Application was allocated to my Chambers for determination.

[4] A Notice of Listing was issued to parties on 12 March 2026 informing them that they were required to attend a Conference in person at 11:30am (AWST) 19 March 2026 (Conference).

[5] On 12 March 2026, directions were issued to the parties for the filing of materials in the event that the dispute was not resolved at the Conference (Directions).

[6] On 12 March 2026 Mr Keele-Firth contacted Chambers and advised he would not be in Perth at the time of the Conference. On the same day Chambers contacted Mr Keele-Firth to advise he would be granted leave to attend the Conference remotely should he apply.

[7] On 18 March 2026 Chambers contacted Mr Keele-Firth to advise him that in the absence of a request to attend the Conference remotely he would be required to attend the Conference in person and should he fail to attend it would be open to Axiis Contracting to make an application under section 399A of the FW Act for the Application to be dismissed..

[8] Mr Keele-Firth did not make a request to attend the Conference remotely and failed to attend the Conference in person.

[9] On 19 March 2026, Chambers wrote to Mr Keele-Firth providing him with the opportunity to file submissions addressing his reasons for not attending the Conference and providing evidence in support of those reasons.

[10] On 20 March 2026, Axiis Contracting applied pursuant to section 399A FW Act for the Application to be dismissed on the grounds that Mr Keele-Firth had failed to attend the Conference (Dismissal Application).

[11] On 20 March 2026, Mr Keele-Firth was invited to file submissions and evidence as to why the Application should not be dismissed by 10am (AWST) 23 March 2026. Chambers advised Mr Keele-Firth that if he did not file any such submissions or evidence by 10am (AWST) 23 March 2026, the Application would be dismissed pursuant to section 399A of the FW Act. Chambers further advised Mr Keele-Firth that pursuant to the Directions issued on 12 March 2026, he was required to file materials in support of his Application by 4pm (AWST) 23 March 2026 and should he fail to comply with the Directions it would be taken into account when determining the Dismissal Application.

[12] On 22 March 2026 Mr Keele-Firth emailed Chambers advising that he did not attend the Conference because he was located in regional Western Australia at the time of the conference. He did not explain why he had not advised Chambers that he would not attend or why he had not accepted Chamber's invitation to apply for leave to participate in the Conference remotely.

[13] On 23 March 2026 Chambers wrote to Mr Keele-Firth advising him that he should file submissions or evidence in relation to the Dismissal Application and his materials pursuant to the Directions by 4pm (AWST) 23 March 2026. Mr Keele-Firth failed to do so.

[14] Mr Keele-Firth was provided with a further extension to file submissions or evidence in relation to the Dismissal Application and the materials set out in the Directions until 4pm (AWST) 24 March 2026.

[15] Mr Keele-Firth did not file the materials set out in the Directions nor did he file any further submissions or evidence in relation to the Dismissal Application by 4pm (AWST) 24 March 2026.

[16] At 5:55pm (AWST) on 24 March 2026 Chambers notified the Parties that the Application had been dismissed. This decision sets out the reasons.

(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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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."

[18] Mr Keele-Firth failed to attend the Conference in accordance with Notice of Listing, Mr Keele-Firth failed to file the materials he was directed to file by the dates specified in the Directions. I am satisfied that Mr Keele-Firth has unreasonably failed to attend a conference conducted by the FWC and failed to comply with a direction of the FWC. On the application of Axiis Contracting and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

• [19] An Order[1] to this effect will be issued with this decision.

[1] PR797992.

Printed by authority of the Commonwealth Government Printer