s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application by Respondent under s 399A to dismiss application - Application for an unfair dismissal remedy dismissed

• [1] This is an edited version of an ex tempore decision I delivered on 19 November 2025 and recorded in transcript. In the decision I dismiss Mr Aghazamani's application for unfair dismissal remedy for the following reasons.

• [2] On 14 August 2025, Mr Aghazamani made an application for an unfair dismissal remedy against his former employer Krispy Kreme Australia Pty Ltd (the Respondent). At all times the Commission has used the contact details provided by Mr Aghazamani in his application.

• [3] The matter was listed for Staff Conciliation on 24 September 2025 - the matter did not go ahead. The Respondent has provided submissions that the Applicant did not attend that conciliation.

• [4] On 2 October 2025, I issued directions listing the matter for a Case Management Conference on 5 November 2025 and relevantly directing Mr Aghazamani to file written material in support of his case on 11 November 2025.

• [5] On 5 November 2025, I held a Case Management Conference in this matter which Mr Aghazamani failed to attend. Following the Case Management Conference my Chambers sent Mr Aghazamani an email requiring him to provide reasons why he did not attend the Case Management Conference by 6 November 2025. The email stated:

"Failure to attend proceedings before a Member of the Commission is a serious matter. Commissioner Allison is now considering whether your application should be dismissed for want of prosecution."

• [6] On 6 November 2025, Mr Aghazamani contact my Chambers stating he had been unwell and "not in a condition to participate". Mr Aghazamani provided a medical certificate for the 4-5 November 2025.

• [7] On 10 November 2025, my Chambers sent an email to Mr Aghazamani rescheduling the Case Management Conference to 19 November 2025. The email further reminded him that in accordance with my directions dated 2 October 2025, his written submissions in support of his case were due at 5pm on 11 November 2025.

• [8] On 11 November 2025, my Chambers sent a further email to Mr Aghazamani reminding him of the Case Management Conference on 19 November 2025 and that his written material was due 5pm on 11 November 2025.

• [9] Mr Aghazamani did not file any written submission by 5pm on 11 November 2025 and has not filed any written submissions since that date.

• [10] On 12 November 2025, the Respondent made an application under s 399A of the Fair Work Act 2009 to dismiss Mr Aghazamani's application on the basis that Mr Aghazamani failed to comply with directions of the Commission.

• [11] On 17 November 2025, my Chambers sent an email to Mr Aghazamani. That email referred to the fact that Mr Aghazamani had not filed material in compliance with directions and that the Respondent had made an application for the dismissal of his application. That email stated:

"If you wish your matter to proceed you must urgently submit material in accordance with paragraph 5 of the Directions. You are further required to provide reasons why you have not acted in accordance with Commission directions, including any supporting documentary evidence (for example, if you have been ill, the Commissioner requires additional medical evidence).

The Commissioner has relisted this matter for a Compliance Hearing on 19 November 2025 at 10am, by Microsoft Teams.  Should you fail to attend the Hearing, and/or fail to provide submissions detailed in the above paragraph, your application may be dismissed without further notice to you."

• [12] Mr Aghazamani failed to attend the Compliance Hearing of 19 November 2025 and has not contacted my Chambers with any reasons for his non-attendance or failure to comply with my other directions. My Chambers attempted to contact him by phone and by text during the Case Management Conference of 19 November 2025, with no response.

• [13] Section 399A(1)(a) and (b) relevantly provide that the Commission may dismiss an application if it is satisfied that the Applicant has unreasonably failed to attend a conference or hearing held by the Commission or has unreasonably failed to comply with a directions of the Commission relating to the application.

• [14] Mr Aghazamani has failed to comply with my directions of 2 October 2025 and my further directions of 10 and 11 November 2025. He failed to attend the Case Management Conference of 19 November 2025 despite being required to do so. Mr Aghazamani has provided no reason for these failings.

• [15] I am satisfied that despite being properly advised of the various opportunities to advance his case, Mr Aghazamani has unreasonably failed to take sufficient actions to engage with the Commission to prosecute his case. I have provided Ms Aghazamani multiple, reasonable opportunities and have expressly put him on notice that a failure to engage with the Commission by the due date would lead to the dismissal of the application without further notice.

• [16] Given the above, I find that Mr Agahazamani's failure to attend the Case Management Conference on 19 November 2025 and comply with my directions is unreasonable. The discretion in s 399A is enlivened and it is appropriate to exercise it.

• [17] The Respondent's application under s 399A is granted, and Mr Aghazamani's application is dismissed.

Printed by authority of the Commonwealth Government Printer