s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - s 399A application to dismiss - application granted

[1] On 28 September 2025, Mr Jay Payne applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) alleging that the Trustee For Angi Trading Trust unfairly dismissed him.

[2] The parties and their representatives attended a conciliation conducted by a Commission staff conciliator on 26 November 2025. The matter did not resolve, and the matter was allocated to my Chambers.

[3] On 9 December 2025, my Chambers wrote to the parties directing them to attend a case management conference before me on 15 December 2025. On the morning of 15 December 2025, Mr Payne's representative wrote to my Chambers to advise that they had been unable to contact Mr Payne and therefore had ceased acting for him.

[4] Mr Payne did not attend the case management conference or respond to the emails or calls from my Chambers.

[5] After the case management conference on 15 December 2025, my Chambers wrote to Mr Payne directing him to confirm whether he still wished too progress with his application by 17 December 2025. Mr Payne was also notified that if we did not hear back from him, it could result in his application being dismissed. Mr Payne did not respond.

[6] On 24 December 2025, the Trustee filed an application to dismiss Mr Payne's unfair dismissal application under s 399A or s 587 of the Act. My Chambers wrote to the parties and advised Mr Payne that if he did not want his unfair dismissal application to be dismissed, he had to contact Chambers to explain why. Mr Payne was also notified that if we did not hear from him, I would proceed to determine the application to dismiss based on the material filed.

[7] To date, Mr Payne has not made any contact with my Chambers.

[8] Section 399A of the Act states as follows:

(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 another 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."

• [9] The relevant principles for s 399A applications were summarised by the Full Bench in Lockyear v Graeme Cox[1] at [57]:

"[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

1. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

1. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

1. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

1. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.

• [10] I also note that the power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]

[11] The facts in this matter are not contested. The Trustee's grounds for its s 399A application are that Mr Payne has unreasonably failed to attend the case management conference on 15 December 20025 and has failed to comply with directions from my Chambers. I agree with the Trustee.

[12] I find that an application has been made under s 399A, and that Mr Payne has been served with a copy of the application and was given the opportunity to respond to it. I also find that Mr Payne's failure to attend or engage with the Commission and my directions satisfies s 399(1)(a)-(b) of the Act. Given Mr Payne's failure to engage and prosecute his case, I am satisfied it is appropriate to exercise my discretion to dismiss his unfair dismissal application.

• [13] An order giving effect to this decision will be issued separately.[3]

[1] [2021] FWCFB 875.

[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31].

[3] PR795885.

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