Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act - Application dismissed.

• [1] On 5 March 2025, Mr Duan Neave (Mr Neave) 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 the trustee for the Szczecinski (Szczecinski).

• [2] On 31 March 2025, Szczecinski filed a Form F3 - Employer response to unfair dismissal application raising a jurisdictional objection that the Application was filed out of time.

• [3] The Application was allocated to my Chambers for determination.

• [4] Directions for the filing of materials in advance of the Hearing were issued to the parties on 17 April 2025 (Directions).

• [5] On 22 April 2025 the parties were informed that a conciliatory conference to explore the resolution of the matter would be held on 28 April 2025 (Conference). The Application could not be resolved at the Conference. At the Conference I explained to Mr Neave that in the absence of a resolution, he must file his materials by the date specified in the Directions or Szczecinski could apply to have the Application dismissed.

• [6] On 29 April 2025, following the conference, my Chambers wrote to the parties to remind Mr Neave that he was due to file his materials by no later than 4pm, 2 May 2025.

• [7] On 5 May 2025, Chambers emailed Mr Neave reminding him that he had not filed his materials in accordance with the Directions.

• [8] On 6 May 2025, Szczecinski made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Neave failed to comply with Directions (Dismissal Application).

• [9] Mr Neave was invited to file submissions and evidence as to why the Application should not be dismissed by noon on Friday 7 May 2025. Chambers advised Mr Neave that if he did not file submissions and evidence by noon Friday 7 May 2025, the Application would be dismissed pursuant to section 399A of the FW Act.

• [10] No submissions or evidence were filed in relation to the Dismissal Application by Mr Neave by 4pm on Friday 7 March 2025, or since.

• [11] Section 399A of the FW Act provides:

(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."

• [12] Mr Neave failed to comply with Directions issued on 17 April 2025. As at the date of this decision, Mr Neave has still not filed any materials in response to the Dismissal Application. Mr Neave has not sought an extension to file his materials in response to the Dismissal Application. I am satisfied that Mr Neave has unreasonably failed to comply with directions of the FWC relating to this Application.

• [13] In relation to Mr Neave's application for an extension of time to file his materials I note the following:

• Mr Neave was notified of his dismissal on 1 December 2021. The dismissal did not take effect until 31 December 2021.

• He has provided an explanation for the delay, stating that he was unaware of the timeframe for lodgement and that the dismissal took place during the Covid-19 lockdowns, impacting his ability to lodge within the prescribed legislative timeframe.

• [14] On the application of Szczecinski and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An Order to this effect will be issued with this decision.[1]

[1] PR787224.

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