s.394 - Application for unfair dismissal remedy

[1] On 10 September 2025, Mr Djuma Ramazani made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) against JBS Australia Pty Ltd (the Respondent) seeking a remedy in respect to unfair dismissal.

[2] The application was allocated to my chambers on 12 January 2026 after having earlier been the subject of a conference organised by the Fair Work Commission's conciliation service at which the matter was not resolved.

[3] I listed the matter for a case management hearing, to occur via Video on 28 January 2026. A Swahili interpreter was organised to attend to assist Mr Ramazani.

[4] Mr Charles Reichman is identified on Mr Ramazani's Application as his representative. Mr Reichman is described as a lawyer.

[5] Mr Ramazani did not attend the case management hearing. Mr Reichman did attend, as did representatives for the Respondent. Mr Reichman was not able to provide an explanation as to why Mr Ramazani did not attend.

[6] The Respondent indicated that it may seek the matter be dismissed arising from Mr Ramazani's failure to attend the hearing. I made directions for the conduct of the matter which included that:

1. By 30 January 2026 Mr Ramazani was to file in the Commission and serve upon the Respondent a short submission as to why he failed to attend a mention hearing in relation to the matter.
2. By 2 February 2026 the Respondent was to advise chambers as to whether it sought the application be dismissed pursuant to s 399A of the Act, and if so, the grounds upon which it submits this occur.
3. By 4 February 2026, in the event the Respondent sought the application be dismissed, Mr Ramazani was to file in the Commission and serve upon the Respondent a response to its submissions, if any were made, about the dismissal of the application pursuant to s 399A.

[7] The Directions were sent to the email addresses provided by Mr Ramazani and his representative which had previously been used to engage with them during the course of the proceeding to date.

[8] There was no submission filed by or on behalf of Mr Ramazani by 30 January 2026 as to why he failed to attend the mention.

[9] On 2 February 2026, the Respondent confirmed it seeks the Application be dismissed pursuant to s 399A of the Act on the basis Mr Ramazani failed to attend the hearing and failed to comply with a Direction that he file and serve a submission explaining why. It did so by filing a Form F1 Application and accompanying Outline of Submissions.

[10] On 4 February 2026, at about 10:53AM, my chambers sent another email to Mr Ramazani and his representative reminding them that a submission in response was due by 4:00PM that day.

[11] No submission was filed by or on behalf of Mr Ramazani by 4:00PM 4 February 2026 as Directed.

[12] On 5 February 2026, at 4:51PM, another email was sent to Mr Ramazani and his representative advising that the Commission intended to determine the matter the following day, and a final opportunity was afforded to Mr Ramazani to bring before the Commissioner's attention any matter mitigating against his non-compliance, provided it was received by 10:00AM on 6 February 2026.

[13] At 4:59PM on 5 February 2026, an email was sent by Mr Reichman which said:

I request an extension of time until 11 February 2026 to file submissions

[14] At 9:08AM on 6 February 2026, a reply was sent to Mr Reichman which said that his request was declined and that the application made by the Respondent that Mr Ramazani's application be dismissed pursuant to s 399A of the Act would be determined after 10:00AM that day on the basis of the material before the Commission at that time, as had been previously indicated.

[15] No further correspondence was received by my chambers by 10:00AM today.

[16] Section 399A(1) of the Act 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.

(a) Failed to attend a hearing on 28 January 2026

(b) Failed to comply with a Direction returnable on 30 January 2026

(c) Failed to comply with a Direction returnable on 4 February 2026

[18] In each case, no explanation has been provided for these failures, despite Mr Ramazani having been afforded numerous opportunities to do so.

• [19] The right of an employee to bring a case relating to the dismissal of their employment should not be lightly curtailed by proceedings being dismissed at a preliminary stage[1]. At the least, procedural fairness must be provided, and the employee afforded an opportunity to explain the apparent non-compliance which will inevitably be the subject of the employer's application. In Lockyear v Cox[2] a Full Bench of this Commission set out a process which might be followed in the exercise of the Commissioner's discretion pursuant to s 399A which is similar to that which I have adopted in this matter.

[20] I consider that Mr Ramazani has been provided with procedural fairness, having been on notice since 28 January 2026 that it was likely the Respondent would seek his application be dismissed and having been provided several opportunities to respond to that proposition, including being provided with a submission prepared by the Respondent as to the basis of its application so that he could respond to it. He has provided no explanation whatsoever. I note for completeness that Mr Ramazani is represented in this matter.

[21] The email received in chambers yesterday, apparently sent from a legal representative, came only after a further attempt was made to seek any views from Mr Ramazani, after he failed on two previous occasions to do so. It is cursory in tone, does not set out the basis for the request for more time, does not provide any explanation for Mr Ramazani's failures and in the circumstances is unreasonable.

[22] On the basis of the material before me, I am satisfied Mr Ramazani's failure to attend the hearing and comply with two Directions made in this matter are unreasonable. There was no explanation provided as to his failure to attend the hearing and there has been no explanation provided for his failure to comply with Directions.

• [23] Mr Ramazani's application is dismissed, and an Order[3] will be issued to that effect.

[1] Meiyun Xue v Serco Australia Pty Limited [2025] FWCFB 75 [19]

[2] [2021] FWCFB 875

[3] PR796473

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