s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application dismissed under s 399A - Unreasonable failure to comply with directions.

• [1] This is a decision to dismiss the application for an unfair dismissal remedy made by Mr Hanno Leibenberg.

• [2] The Commission may dismiss a matter under section 399A of the Fair Work Act 2009 (Cth), on application by a respondent, where an applicant has failed to attend conferences and hearing or comply with directions of the Commission.

• [3] Leidos Australia Pty Limited - the respondent in this matter - made such an application on 27 March 2025 in an email to the Commission. The email copied in Mr Leibenberg.

• [4] I am satisfied that Mr Leibenberg has failed to attend a conference or hearing and failed to comply with directions. I am satisfied that the failure to comply with directions was unreasonable.

• [5] Mr Leibenberg failed to attend a conference and hearing listed for 7 April 2025. This was initially listed as a determinative conference/hearing to deal with the question of whether to extend time for Mr Leibenberg to have filed his application. The listing was changed to a case management conference and hearing to deal with the Respondent's application for the matter to be dismissed under s 399A.

• [6] Mr Leibenberg has failed to comply with directions that I issued on 7 March 2025 in that he did not file his materials in the deadline in those directions (which was 21 March 2025).

• [7] I am satisfied that Mr Leibenberg has unreasonably failed to comply with directions because he has not provided any reasons for his failing to comply.

• [8] I provided Mr Leibenberg with the opportunity to provide reasons for failing to comply with directions. My chambers sent him an email on 27 March 2025 informing him of his failure, requiring him to urgently file materials and provide reasons for failing to provide materials.

• [9] Despite Mr Leibenberg's non-attendance at the hearing on 7 April 2025, I heard the respondent' s further oral submissions about dismissing Mr Leibenberg's application. I then provided Mr Leibenberg with the further opportunity to say why his matter should not be dismissed by issuing further Directions. Mr Leibenberg did not file any material nor otherwise contact my chambers prior to the deadline I provided (Friday 11 April 2025).

• [10] Mr Leibenberg also failed to attend a hearing on 7 April 2025 but provided a reason for failing to do so. Prior to the hearing on 7 April 2025, Mr Leibenberg spoke with my associate by telephone. His reason for failing to attend was that he had a job interview scheduled for the same time as the hearing. I am of the view that Mr Leibenberg did not unreasonably fail to attend a hearing. However, we informed Mr Leibenberg of the date and time of the hearing on 7 and 27 March 2025. In those circumstances, he should have contacted us prior to the hearing to ask for it to be rescheduled to accommodate his job interview. He did not proactively do so and we only learned of his reason for not attending when we contacted Mr Leibenberg minutes prior to when the hearing was scheduled to start. This is the only time that Mr Leibenberg has engaged with the Commission other than filing his application.

• [11] As I am satisfied that Mr Leibenberg has unreasonably failed to comply with directions and the respondent has made an application, I may dismiss this matter under s 399A of the Act. I exercise my discretion to do so as Mr Leibenberg has been provided with many opportunities to engage with his application but has failed to do so.

• [12] I order that the application for an unfair dismissal remedy under matter number U2025/2122 filed by Mr Hanno Leibenberg on 25 February 2025 be dismissed under section 399A of the Act.

Ms K Sweatman of Kingston Reid with permission for the Respondent

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