s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application under s 399A - failure to attend a hearing held by the Commission - failure to comply with a direction of the Commission relating to the application - s 399A application granted - application dismissed.

[1] This decision concerns an application made under s 399A of the Fair Work Act 2009 (Cth) (Act) by the respondent, Nacap Pty Ltd, to dismiss an unfair dismissal application brought against it by Mr Matthew Wilson.

[2] For the reasons the follow, the respondent's application under s 399A is granted. Mr Wilson's application for unfair dismissal remedy is dismissed.

[3] On 24 November 2025, Mr Matthew Wilson made an application against the respondent for unfair dismissal remedy pursuant to s 394 of the Act. The application was conciliated on 23 December 2025 however it did not resolve. The matter was subsequently referred to me for determination of the substantive application, which included a jurisdictional objection raised by the respondent.

[4] On 28 January 2026, directions were issued for the filing of materials. Mr Wilson was required to file submissions, witness statements and any other evidence he sought to rely on by 11 February 2026. Mr Wilson did not file any material with the Commission in accordance with these directions.

[5] On 12 February 2026, my Chambers sent correspondence to Mr Wilson requesting that he provide reasons for the non-compliance with the 28 January 2026 directions. The email provided a further opportunity for him to file his material or advise Chambers if he no longer wanted to proceed with his application. No response or material was received from Mr Wilson.

[6] On 13 February 2026, my Chambers attempted to contact Mr Wilson, but the call went answered. Later that day, further correspondence was sent to Mr Wilson by email noting that he had failed to respond to the non-compliance correspondence of 12 February 2026. Mr Wilson was notified that due to his non-compliance with the directions and the absence of any contact with the Commission, the matter would proceed to a non-compliance hearing at 10:00am on 17 February 2026. Following an adjournment request from the respondent, which was granted, the non-compliance hearing was relisted to 1:00pm on 18 February 2026. Mr Wilson did not provide any information confirming his attendance or otherwise at the non-compliance hearing.

[7] The amended notice of listing was effective in joining the respondent to the non-compliance hearing, but Mr Wilson did not appear. At or about the time the non-compliance hearing was due to commence, my Chambers made four telephone calls to Mr Wilson, without successfully reaching him. An email was sent to Mr Wilson directing him to immediately respond and join the hearing, but he did not appear.

• [8] The matter was called on at around 1:06pm. The respondent made an application to dismiss the application for Mr Wilson's non-attendance at the hearing and non-compliance with directions, which is taken to be an application pursuant to s 399A of the Act (s 399A Application). I waived compliance with the Fair Work Commission Rules 2024[1] and accepted the oral application made by the respondent.

[9] After the hearing Mr Wilson was sent an email setting out the attempts made to join him to the hearing and advising him of the respondent's s 399A Application. The email contained directions for the determination of the s 399A Application. The directions relevantly stated as follows:

Mr Wilson is directed to file with the Commission and serve on the respondent an explanation addressing:

(a) The matters raised by the respondent as comprising Mr Wilson's non-compliance with the Commission's Directions at (1), (2) and (3) above;

(b) Any reasons Mr Wilson wishes to advance explaining why the Commission should not dismiss his unfair dismissal application. This must be supported by evidence or other material, including cogent medical evidence where relevant.

Mr Wilson's response is required by close of business Friday 20 February 2026.

[10] Relevantly, Section 399A of the FW Act provides 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.

(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] Section 399A was the subject of a Full Bench decision in Lockyear v Graeme Cox[2] where it was relevantly said as follows:

[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. 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.

• [12] The power to dismiss a substantive application should only be exercised with caution, noting that it results in the complete extinguishment of an applicant's right to have their application heard and determined according to law.[3]

• [13] The exercise of the Commission's powers under s 399A of the Act to dismiss an unfair dismissal application involves the exercise of a broad discretion. This type of matter involves two discretionary decisions. First, that the applicant has unreasonably failed to, in this case, attend a hearing conducted by the Commission in relation to the application or comply with directions of the Commission. Second, upon satisfaction that there has been an unreasonable failure of the requisite kind, the decision maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.[4]

[14] Contrary to the directions, Mr Wilson has not filed any supporting materials or responded to the s 399A Application. Nor has Mr Wilson taken any steps to engage with the Commission in the period since the respondent made its request for the dismissal of Mr Wilson's application pursuant to s 399A of the Act.

[15] I consider that the time afforded to Mr Wilson to respond, the attempts made to contact him regarding the missed deadlines, together with the information provided to him regarding the determination of the s 399A Application, reflect all reasonable steps required by the Commission in the circumstances. It follows that the first three steps set out in Lockyear v Cox have been met. I turn now to consider the s 399A Application.

[16] Mr Wilson has failed to comply with the direction of the Commission to file a response to the s 399A Application. Consequently, there is no explanation before me for his non-attendance at the non-compliance hearing, nor his failure to comply with the Commission's directions in the application. Mr Wilson has not answered any telephone calls from the Commission or responded to emails sent by my Chambers regarding his application. No bounce back emails have been received which provide any indication that the Commission's correspondence has not reached him directly. I therefore conclude that Mr Wilson's failure to attend the 18 February 2026 non-compliance hearing convened in relation to his application was unreasonable (s 399A(1)(a)), as was his failure to comply with the directions of the Commission in relation to the application (s 399A(1)(b)).

[17] Accordingly, I am empowered to exercise the discretion afforded under s 399A of the Act to dismiss Mr Wilson's application for an unfair dismissal remedy. While such discretion is to be exercised with caution, I am satisfied that that it should be exercised in this case, having regard to the following circumstances:

(a) Mr Wilson unreasonably failed to attend the 18 February 2026 non-compliance hearing convened by the Commission in relation to his unfair dismissal application, at which the respondent was in attendance.

(b) Mr Wilson unreasonably failed to comply with directions of the Commission in relation to the matter, including the 28 January 2026 directions to file and serve material in support of his application.

[18] The Commission has afforded Mr Wilson the opportunity to respond to the s 399A Application, explain his non-compliance, or otherwise communicate with the Commission. In this case, Mr Wilson has not engaged with the Commission since the failed conciliation conference on 23 December 2025.

(c) Mr Wilson has not demonstrated a willingness to prosecute his case in the Commission.

(d) Mr Wilson has been on notice of the consequences of his non-compliance since 18 February 2026.

[19] There are no matters which weigh against the exercise of my discretion.

[20] For the reasons given, the respondent's application under s 399A is granted.

[21] Mr Wilson's application for an unfair dismissal remedy is dismissed pursuant to s 399A(1) of the Act.

[2] [2021] FWCFB 875.

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

[4] Robin Hansen v Calvary Health Care Adelaide Limited [2016] FWCFB 5223 at [39].

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