s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

[1] On 30 October 2025 Mr Dyllan Peace made an application pursuant to s 365 of the Fair Work Act 2009 (the Act) against Super Cheap Auto Pty Ltd (the Respondent) alleging that the dismissal of his employment occurred in a manner that was in contravention of the Act.

[2] The application was allocated to my chambers on 2 December 2025.

[3] Pursuant to s 368 of the Act, I listed the matter for a conference to occur on 22 December 2025.

[4] The Respondent attended the conference, but Mr Peace did not.

[5] At the appointed time, my associate contacted Mr Peace by phone and email to remind him to join the conference. There was no answer or response.

[6] During the conference, the Respondent confirmed that it seeks the Commission dismiss the application. I am prepared to treat this submission as an application made by the Respondent pursuant to s 587(3) of the Act.

[7] On 22 December 2025, after the conference, my Chambers sent Mr Peace an email which said:

On 30 October 2025, you made an application in the Fair Work Commission, claiming the dismissal of your employment with Super Cheap Auto Pty Ltd occurred in a manner that was in contravention of the Fair Work Act 2009.

On 3 December 2025, you were sent a notice stating that a conference would be held before Commissioner Redford in relation to your application. You were asked to respond to this notice confirming your appearance. You did not do so.

On 22 December 2025, the conference was held. You did not attend the conference. Representatives from Super Cheap Auto did attend the conference. A reminder email and phone calls were attempted at the time of the conference when you did not appear.

You are asked to provide a written response to this email, explaining why you have not responded to the Commission's correspondence in this matter, and did not attend the conference on 22 December 2025. This must occur by 4:00PM, 9 January 2025.

When a person who has made an application in the Fair Work Commission does not properly participate in their matter without explanation, in some circumstances the application may be dismissed.

You should therefore be aware that your failure to respond to this correspondence or failure to provide an adequate explanation as to your non-attendance at the conference may result in your application being dismissed."

[8] By 4:00PM on 14 January 2025 Mr Peace had not filed any material in relation to the matter, despite being directed to do so. At this time, an email was sent to him by my chambers which said:

You have failed to properly participate in an application you have made against Super Cheap Auto Pty Ltd, concerning the termination of your employment.

In particular, you failed to properly attend conferences listed in the matter on 22 December 2025, and have failed to follow the directions of the Commission that you file and serve an outline of submissions in your matter by 4:00PM 9 January 2026, as to why it should not be dismissed.

Despite having failed to comply with this direction, you are now afforded one more opportunity to provide the Commission with a submission as to why your application should not be dismissed, for reasons that you are failing to participate in it.

This must occur by 4:00PM tomorrow, 15 January 2026. If it does not occur, the Commission will determine the matter based on the material before it, which may mean that your case is dismissed."

[9] There was no response from Mr Peace to this email, and he has not filed any material in relation to the application that the matter be dismissed.

[10] Section 587 of the Act provides:

(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

(b) the application is frivolous or vexatious; 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 32, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [11] Frequently, this section of the Act is the basis upon which the Commission may dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance[1]. The words "without limiting when the FWC may dismiss an application" in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).

• [12] Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge[2]. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant's procedural fairness (although without necessitating a hearing).

[13] In this matter, I consider it apparent that Mr Peace did not properly participate in his application after he filed it and does not intend to do so.

[14] The Respondent on the other hand has attended a conference in the matter and will suffer ongoing prejudice should it be asked to continue to participate in the proceeding when Mr Peace is not.

[15] I consider that Mr Peace has been provided with procedural fairness, having been given several weeks to provide a response, and, without requesting it, a further opportunity to provide that response when he initially failed to do so. He has not responded at all. At all times he has been made aware of the possibility his application may be dismissed for his failure to participate in it and failure to follow Directions.

• [16] Mr Dyllan Peace's application is dismissed, and an Order[3] will issue to that effect with this decision.

[1] see for example Viavattene v Health Care Australia [2013] FWCFB 2532 [39]; Rebecca Tomas v Symbian Health [2011] FWA 5458 [57]; Brock Auguston v Castleross Construction Pty Ltd [2024] FWC 1460

[2] [2024] FWC 1302

[3] PR795851

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