s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed pursuant to s 587.

[1] On 23 September 2025, Mr Scott Donald-Hoath (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Cranbourne-Dandenong Pistol Club Inc (the Respondent) on 28 August 2025 was unfair. The Respondent in its Form F3 response raised a jurisdictional objection that the Applicant was not an employee and was therefore not dismissed.

[2] Following allocation of the matter to my Chambers, directions were sent to the parties on 11 December 2025 for the filing of materials in relation to the jurisdictional issue and merits of the application. The matter was listed for hearing on 4 February 2026.

[3] The directions sent to the parties relevantly included the following;

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

[4] 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.

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

[8] 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.

[9] 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] A Mention at which the Applicant and Respondent were both required to attend was also listed for 17 December 2025. The Respondent notified my Chambers that it would not be attending. The Applicant also failed to attend or notify my Chambers of that non-attendance in advance of the Mention.

[5] On 17 December 2025, correspondence was sent by my Chambers to the parties in the following terms;

A Mention hearing was listed for 9:00 today for the above matter. While we understand that the Respondent has chosen not to participate; the Applicant has likewise failed to attend. The Deputy President asked me to clarify that despite the non-attendance, the matter above is still listed for Hearing and the Directions issued remain in place.

Should the Applicant fail to file submissions by the deadline, he risks his application being dismissed in a published decision. If the Respondent fails to file submissions, then the matter can still proceed to Hearing without their involvement. The Directions will not be vacated unless the application is withdrawn or dismissed. If the Applicant no longer wishes to pursue their application, they must either file a Form F50 or simply notify Chambers in writing.

[6] On 18 December 2025, further correspondence was sent by my Chambers to the Applicant as follows;

We note the email below and wish to make the following points.

Firstly, if you are unable to attend a listing of the Commission, please inform Chambers prior to the date, so that a more appropriate time may be arranged or unnecessary listings can be cancelled.

Secondly, you promise below to provide further documentation. To clarify, the only documentation we require are the submissions required in paragraph 2 of the Directions sent on the 11 December. These documents are to be provided by the date listed. If you are unable to file said submissions by that date, please inform Chambers prior to the deadline (I have attached a further copy of those directions to this email).

Finally, we note that this email was sent only to the Chambers email address. As stated at the bottom of the Notice of Listing sent on the 11 December, all correspondence to Chambers should copy in (Cc) the other party. The Respondent has been cc'd into my response.

[7] The filing date for the Applicant's material was on or by 5.00pm on 14 January 2026. Despite the directions and above-referred correspondence the Applicant failed to file his material by the required date. Nor did he contact my Chambers to seek an extension of time for filing his material or otherwise explain his failure to comply with the directions.

[8] As a consequence of the Applicant's failure to file his material, a Non-Compliance hearing was listed for 19 January 2026. The Applicant failed to attend the Non-Compliance hearing despite efforts of my Associate to contact him at the start of the hearing. Correspondence was then sent to the Applicant on 19 January 2026 in the following terms;

A Non-Compliance hearing was listed before Deputy President Masson at 3.00pm today but did not proceed due to your failure to attend. Attempts were made to contact you at the start of the Non-Compliance hearing. The Non-Compliance hearing was listed because of your failure to file materials in support of your unfair dismissal application by 5.00pm on 14 January 2026 as required by the Directions issued on 11 December 2025.

The Deputy President notes that you also failed to attend a Mention hearing that was listed before him on 17 December 2025, following which you were sent correspondence reminding you of the importance of complying with directions of the Commission.

Because of your continued non-compliance with directions, the Deputy President is now considering the dismissal of your unfair dismissal application pursuant to s 587 of the Fair Work Act 2009 (the Act) which states as follows;

1. Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

1. Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(a) on its own initiative; or

(b) on application."

You may file submissions and any other material on which you seek to rely as to why your application for an unfair dismissal remedy should not be dismissed pursuant to s 587 of the Act by 5pm, Wednesday 21 January 2026.

Should you wish to be heard in relation to the above you should contact Chambers. Otherwise, the matter will be dealt with on the papers.

Please note that pending the outcome of the above, the directions in this matter have been vacated.

[9] The Applicant was invited to provide submissions by the close of business on Wednesday, 21 January 2026 as to why his application should not be dismissed. No submissions were filed by the Applicant in response to the correspondence sent to him on 19 January 2026.

[10] Turning now to whether the application should be dismissed, the relevant section of the Act provides as follows;

(1) Without limiting when the FWC may dismiss an application, The FWC may dismiss an application if:

(a) The application is not made in accordance with this Act; or

(b) The application is frivolous or vexatious; or

(c) The application has no reasonable prospect of success."

[11] The Applicant has failed to prosecute his case beyond filing his Form F2 application and has demonstrated a pattern of non-compliance with directions of the Commission. That is despite the clear directions and further correspondence from my Chambers that reinforced the importance of filing his material by the required date. His non-compliance has included his failure to attend the Mention on 17 December 2025, his failure to file his materials by 14 January 2026 as required by the above-referred directions, and his failure to attend the non-compliance hearing listed for 19 January 2026. Furthermore, no extension of time was sought by the Applicant in relation to his non-compliance with the directions. Nor has he provided an explanation for his non-compliance despite being afforded an opportunity to do so.

[12] The words, "without limiting when FWC may dismiss an application" at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c). In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. An order to that effect will issue with this decision.

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