s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - s.399A - failure to attend hearing held by the Commission - s.587 - failure to prosecute case in a reasonable manner

• [1] On 25 August 2025, Mr Paul Desmond (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with SMR Designs Pty Ltd (Respondent).

• [2] The Respondent did not agree to participate in conciliation via a member of the Commission's staff, and the matter was then allocated to Chambers. On 19 September 2025 the matter was listed for conference on 25 September 2025. The Respondent indicated that it was not available on that date, and the availability of the parties was sought regarding alternative dates.

• [3] The Applicant sought that the conference be rescheduled to the week commencing 6 October 2025. The parties were therefore requested to confirm their availability to attend on 7 October 2025. The Applicant then sought that the conference be held on either 8, 9 or 10 October 2025. On 23 September 2025 the Commission sent a notice of listing for a conference to be held on 8 October 2025 to accommodate this request.

• [4] Despite the conference being listed on one of the Applicant's preferred dates, the Applicant did not attend the conference on 8 October 2025 and did not advise the Commission of his inability to attend in advance. When the Applicant did not attend the conference Chambers contacted the Applicant and left a voice message and sent an email requesting that he join the call. The Applicant did not do so.

• [5] On 8 October 2025 the Commission wrote to the Applicant seeking reasons for his non-attendance at the conference by 4:00pm the following day. The Applicant did not respond, causing the Commission to send a follow up email on 17 October 2025 and seeking a response by 20 October 2025. The Applicant did not respond.

• [6] On 21 October 2024 the matter was listed for a further conference on 24 October 2025. The Applicant did not attend that conference despite Chambers sending an email requesting that he join the conference and leaving two voice messages when the Applicant did not attend.

Respondent's s.399A application

• [7] During the conference on 24 October 2025 the Respondent requested that the application be dismissed. The Respondent sent an email that same day requesting that the application be dismissed. The Commission requested that the Respondent confirm whether it was making application to have the matter dismissed under s.399A and if so, requested that it set out the relevant grounds on which it said the application should be dismissed. On 24 October 2025 Respondent confirmed it was seeking that the application be dismissed because of the Applicant's non-attendance at the conferences.

• [8] An application under s.399A must be made by a party in accordance with the Fair Work Commission Rules (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 Act and accept the application. In the circumstances the Commission decided to waive compliance with the Rules pursuant to s.586 of the Act and accept the s.399A application.

Service of application and response sought from Applicant

• [9] On 24 October 2025, following receipt of the Respondent's s.399A application, the Commission wrote to the Applicant, who had received a copy of the application, providing the Applicant with an opportunity to respond. The Commission directed the Applicant to make submissions and provide any supporting evidence regarding why his application should not be dismissed pursuant to s.399A of the Act by no later than 4:00pm on Wednesday, 29 October 2025.

• [10] The Commission's correspondence informed the Applicant that should he fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and this may result in the dismissal of the claim for unfair dismissal remedy.

• [11] The Applicant did not respond to this email but on 24 October 2025 responded to an earlier email from the Commission requesting that he join the conference on 24 October 2025.

• [12] In that email the Applicant apologised for his non-attendance, indicating he had accepted a job that constrained his availability and asked whether there was a way the application could proceed without his presence.

• [13] The Commission responded indicating that:

• section 397 of the Act provides that the Commission must conduct a conference or hold a hearing in relation to a matter arising under part 3-2 of the Act dealing with unfair dismissal if, and to the extent that, the matter involves facts the existence of which is in dispute;

• the Respondent indicated that it objected to the application on the basis that the dismissal was a case of genuine redundancy;

• it was unclear from the application as to whether the Applicant was contesting the Respondent's position that the dismissal was a genuine redundancy or why he considered the dismissal was unfair;

• however, as the Applicant had made an application for unfair dismissal and had not withdrawn that application, it seemed likely the matter would involve a contest of facts requiring a hearing or determinative conference which the Applicant would be required to attend;

• as a matter of procedural fairness, the parties would generally be given an opportunity to test the other party's evidence; and

• if the matter was to proceed to hearing or determinative conference the Applicant would need to comply with the Commission's directions in respect of this.

• indicated that it needed to determine the Respondent's s.399A application and decide whether to dismiss the application;

• asked the Applicant to confirm by 6 November 2025 whether he wished to attend a hearing or conference to be heard in relation to the s.399A;

• notified the Applicant that a decision in relation to the s.399A application would be published; and

• notified the Applicant that should he fail to respond to this email by the required time, the Commission will proceed to deal with the application on the material before it and this may result in the dismissal of the application for unfair dismissal remedy.

• [15] The Applicant did not respond to the Commission's correspondence.

(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."

• [17] The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) explains that:

"161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

• failed to attend an FWC conference or hearing relating to the application;
• failed to comply with an FWC direction or order relating to the application, or
• failed to discontinue the application after a settlement agreement has been concluded.

162. The power to dismiss an unfair dismissal application in these circumstances is

not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

1. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

• an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
• an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

1. Note 2 to new subsection 399A(1) draws the reader's attention to the FWC's capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant's failure caused the other party to the matter to incur costs.

1. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.

1. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC's general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC's power to dismiss an unfair dismissal application under new section 399A. 167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part."

• [18] In Ian Kenneth Lockyear v Graeme Cox[1] the Full Bench observed that the power to dismiss applications is to be exercised cautiously and in this regard made reference to the following observations of the Full Bench in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2]:

"The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly, a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant's right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her 'day in court', or as the appellant pleaded, he just wanted his case heard[3]."

• [19] The Full Bench in Ian Kenneth Lockyear v Graeme Cox proceeded to make the following findings:[4]

"[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.

[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief."

• [20] As noted earlier in this decision, the Respondent has made an application pursuant to s.399A of the Act. I decided to waive compliance with Rules regarding the form of the s.399A application pursuant to s.586 of the Act and accepted the email application.

• [21] The Applicant was served with a copy of the s.339A application and was given an opportunity to respond to it. The Commission advised the Applicant that should he 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. The Applicant did not respond to the s.399A application, other than to inquire as to whether the application could proceed without his presence considering his work commitments.

• [22] The Applicant failed to attend two conferences conducted by the Commission on 8 and 24 October 2025 in relation to the application. The Applicant did not advise the Commission of his inability to attend nor provide reasons for non-attendance ahead of the scheduled time of these conferences. The Respondent did attend those conferences and was placed at inconvenience in doing so. While the Applicant indicated he had work commitments in his email of 24 October 2025, he did not otherwise properly address the s.399A application or indicate why his work commitments meant he was unable to notify the Commission of his inability to attend the conferences in advance. This was despite the conference on 8 October 2025 being listed on a date that the Applicant indicated was his preferred date.

• [23] In the circumstances, I have decided to dismiss the application pursuant to s.399A of the Act on the grounds that the Applicant has failed to attend a conference conducted by the Commission. An order to that effect will be issued.

[1] [2021] FWCFB 875.

[2] [2019] FWCFB 2925 at [31].

[3] Also see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Micheletto v Korowa Anglican Girls' School [2003] AIRC 1391 [PR940392].

[4] [2021] FWCFB 875 at [57].

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