s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy-application made under s.399A of the Fair Work Act-no response from the Applicant-application dismissed

• [1] On 21 January 2025, Mr Natham Cousins (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed from his employment with Booth Transport Pty Ltd (the Respondent) on 8 January 2025.

• [2] On 13 March 2025, my Chambers sent an email to parties providing the Notice of Listing and Directions. In the email parties were notified that a Mention Hearing was listed for 2:00pm on Monday, 24 March 2025.

• [3] The Respondent attended the Mention Hearing at 2:00pm on 24 March 2025. The Applicant did not attend the Mention Hearing, and my Chambers made attempts to call the Applicant without success. At the Mention Hearing the Respondent made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to attend the Mention Hearing conducted by the Commission. I waived any required compliance with the Fair Work Commission Rules 2013 and accepted the Respondent's oral application.

• [4] Later that day, My Chambers sent the Applicant an email informing him of the s.399A application. The Applicant was directed to file with the Commission, and serve on the Respondent, submissions providing reasons as to why the Commission should not dismiss him application, including evidence or other documentary material to support any reasons given. The material was required by no later than 4:00pm on Monday, 31 March 2025. The email indicated that if the Applicant did not provide a reason by 4:00pm on 31 March 2025 the application may be dismissed without further notice.

• [5] To date, the Applicant has not filed any material or otherwise contacted the Commission.

• [6] Section 399A of the 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.

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."

• [7] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss pursuant to s.399A of the Act, I will determine the application on the papers.

• [8] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant failed to attend the Mention and has failed to provide any reason for him non-attendance despite being given an opportunity to do so. For this reason, I have determined to exercise my discretion under s.399A(1)(a) of the Act and dismiss the Applicant's application.

• [9] The Applicant's application for remedy from unfair dismissal is dismissed. An order[1] will be issued concurrently with this decision.

[1] PR785669.

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