s.394 - Application for unfair dismissal remedy

• [1] On 30 May 2025, Mr Jeffrey Boothey (Mr Boothey) 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 North Metropolitan Health Service (NMHS).

• [2] On 11 June 2025, NMHS filed a Form F3 - Employer response to unfair dismissal application raising the jurisdictional objections that:

1. NMHS is not a national system employer and therefore Mr Boothey is not a national system employee and is not eligible to make an unfair dismissal application; and
2. Mr Boothey has not been dismissed and remains employed by NMHS (Jurisdictional Objection).

• [3] On 18 September 2025, the Application was allocated to my Chambers for determination.

• [4] Directions were issued to parties on 25 September 2025 (Directions). The Directions required Mr Boothey to file by 4pm (AWST) Thursday 2 October 2025 his materials in response to the Jurisdictional Objection raised by NMHS. The parties were advised that compliance with the Directions was mandatory.

• [5] Mr Boothey failed to file the materials by the required date and time as set out in the Directions.

• [6] On 2 October 2025, Chambers wrote to Mr Boothey and reminded him that his materials in relation his application addressing the Jurisdictional Objection were overdue.

• [7] On 7 October 2025, NMHS made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Boothey failed to comply with the Directions (Dismissal Application).

• [8] On 8 October 2025, Mr Boothey was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Thursday 9 October 2025. Chambers advised Mr Boothey that if he did not file any such submissions or evidence by 4pm (AWST) Thursday 9 October 2025, the Application would be dismissed pursuant to section 399A of the FW Act.

• [9] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Boothey by 4pm (AWST) Thursday 9 October 2025.

• [10] 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."

• [11] Mr Boothey failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision, Mr Boothey has still not filed any materials in support of the Application or in response to the Dismissal Application. Mr Boothey has not sought an extension to file his materials in support of the Application or in response to the Dismissal Application. I am satisfied that Mr Boothey has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of NMHS and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

• [12] An Order[1] to this effect will be issued with this decision.

[1] PR792643.

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