Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] On 31 July 2025, Mr John McCormack (Mr McCormack) 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 Tradezone Pty Ltd (Tradezone).

• [2] On 21 August 2025, Tradezone filed a Form F3 - Employer response to unfair dismissal application noting that it did not raise any jurisdictional objection in relation to the Application.

• [3] On 7 October 2025, the Application was allocated to my Chambers for determination.

• [4] A Notice of Listing was issued to parties on 28 October 2025 (Notice of Listing). The Notice of Listing directed the parties to attend an in person conference at the FWC on 4 November 2025.

• [5] Mr McCormack failed to attend the conference on required date and time as set out in the Notice of Listing.

• [6] On 4 November 2025, Chambers wrote to Mr McCormack and advised him that he had failed to attend the Conference.

• [7] On 5 November 2025, Tradezone made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr McCormack failed to comply with the Notice of Listing and attend the Conference (Dismissal Application).

• [8] On 6 November 2025, Mr McCormack was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Friday 7 November 2025. Chambers advised Mr McCormack if he did not file any such submissions or evidence by 4pm (AWST) Friday 7 November 2025 the Application would be dismissed pursuant to section 399A of the FW Act.

• [9] No submissions or evidence were filed in relation to the Dismissal Application by Mr McCormack by 4pm (AWST) Friday 7 November 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] As at the date of this decision, Mr McCormack has still not filed a response to the Dismissal Application. Mr McCormack has not sought an extension to file his materials in response to the Dismissal Application. I am satisfied that Mr McCormack has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of Tradezone 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] PR793682

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