s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed pursuant to s 399A of Fair Work Act 2009.

• [1] On 21 March 2025, Mr Rafael Chaves (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment with Stoked Pty. Ltd. (the Respondent) was unfair. The Respondent raised a jurisdictional objection that the application was filed outside the statutory 21-day filing period in its Form F3.

• [2] The matter was listed for a conciliation conference before a staff member of the Commission on 28 April 2025 but did not proceed. The Respondent requested that its jurisdictional objection be determined and declined to participate in the conciliation conference.

• [3] The matter was allocated to my Chambers on 11 April 2025 and directions were issued to the parties on 22 April 2025 setting down a timetable for the filing of material by both parties. The directions relevantly included the following;

[1] The submissions must include all relevant facts, dates and incidents to support all claims made.

[2] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[3] Please note that witness statements are designed to take the place of evidence-in-chief.

[6] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[7] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

• [4] The Applicant failed to file his material by 5pm, 30 April 2025 as required by the directions. Nor did the Applicant contact my Chambers to seek an extension of time for the filing of his material. On 5 May 2025, Mr David Cambridge, the Respondent's Managing Director, wrote to my Chambers seeking the Applicant's unfair dismissal application be dismissed on the basis of his non-compliance with the directions issued. I took this to be an application made by the Respondent pursuant to s 399A of the Act. A non-compliance hearing was listed for 8 May 2025.

• [5] The Applicant and Mr Cambridge attended the non-compliance hearing, during which Mr Cambridge pressed for the dismissal of the unfair dismissal application, but after hearing from the Applicant I declined to grant Mr Cambridge's s 399A application. I then advised the parties that I would issue revised directions for the filing of material and that in the event of any further non-compliance of the Applicant with the revised directions, I would immediately move to consider the Respondent's s 399A application.

• [6] Revised directions were issued immediately following the non-compliance hearing requiring the Applicant to file his material by 5.00pm, Friday 9 May 2025 and the Respondent to file its material by 5.00pm, Tuesday 13 May 2025. The hearing to deal with the jurisdictional objection was listed for 10.00am, Wednesday 14 May 2025. The Applicant and Respondent both filed their material prior to the hearing.

• [7] At 9.28am on Wednesday 14 May 2025, the Applicant sent an email to my Chambers advising that he was unable to attend the hearing due to an unspecified medical condition. The Applicant requested an on-line hearing be rescheduled at the earliest opportunity. Correspondence was then sent to the Applicant at 10.35am on 14 May 2025 by my Chambers in the following terms;

Deputy President Masson requires a medical certificate detailing the nature of your condition and how it prevents you from attending today's Hearing in person. We require this medical certificate by 5pm, Wednesday 14 May 2025.

If you fail to provide a valid medical certificate to the satisfaction of Chambers, the Deputy President will proceed to determine your application in response to the Respondent's raised objection under s 399A of the Fair Work Act 2009 (Cth).

You can provide the medical certificate to Chambers privately without copying in the Respondent.

• [8] The Applicant failed to respond to the correspondence sent to him on 14 May 2025. Further correspondence was then sent to him on 15 May 2025 in the following terms;

Chambers did not receive a medical certificate by the required deadline.

Deputy President Masson will consider whether to dismiss your application for unfair dismissal remedy pursuant to s 399A of the Fair Work Act 2009 (Cth). This is following the Respondent's application made during the Non-Compliance Hearing on 8 May 2025.

For your reference, 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

(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."

You may file submissions as to why your application should not be dismissed by no later than 5pm, Monday 19 May 2025. If you fail to file submission, Deputy President Masson will consider the Respondent's application under s 399A on the material before him.

• [9] No submissions were filed by the Applicant in response to the 15 May 2025 correspondence.

• [10] Turning now to whether the application should be dismissed, s 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.

(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 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 his application for an unfair dismissal remedy by 5pm, Monday 19 May 2025, I will determine the application on the papers.

• [12] The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by initially failing to file his materials by 30 April 2025 and then failing to attend the hearing on 14 May 2025. He has not provided an acceptable explanation for his non-compliance despite being afforded an opportunity to do so.

• [13] In the circumstances I have decided to grant the Respondent's application under s 399A(1), and the Applicants' unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

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