s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application pursuant to s399A to dismiss application for unfair dismissal remedy - s399A application granted - matter dismissed.

• [1] Mr Troy Anderson (the Applicant) lodged an application for a remedy for unfair dismissal on 1 April 2025, alleging he was dismissed from employment on 12 March 2025.

• [2] The Greater Union Organisation Pty Ltd (the Respondent) filed a Form F3 on 14 April 2025, objecting to jurisdiction on the basis that the Applicant was not a regular casual employee and had no reasonable expectation of continuing employment.

• [3] The matter was listed for a directions hearing on 13 May 2025. The notice of listing required the parties to confirm receipt of the notice and confirm the contact details of those attending the hearing by no later than 12:00pm on the business day prior to the hearing. The Respondent provided their contact details but there was no response from the Applicant. There was no attendance from the Applicant at the directions hearing of 13 May 2025.

• [4] Following the Applicant's non-attendance at the directions hearing, on the same day, my Chambers sent the following email to the Applicant:

"The Commission convened a directions hearing this afternoon in this matter. You were not in attendance and a telephone call to your number on file went unanswered.

You are required to engage with the Commission for your matter to proceed.

If you have not contacted the Commission to indicate your intention to engage with the process by close of business on Tuesday, 20 May 2025, then the matter shall be called on for directions the following day at 10:30am (SA Time).

If you do not engage with the Commission, your matter may be dismissed pursuant to section 587(1)(c) of the Fair Work Act. Without you prosecuting your claim your matter may not have any reasonable prospects of success. If you do not respond to this correspondence or otherwise engage with the Commission to advance your claim, the Commission will consider dismissing your claim on the basis of material before it."

• [5] The Commission received no response from the Applicant and as a result, the matter was listed for a further directions hearing on 21 May 2025. The Respondent appeared at the directions hearing but the Applicant did not attend.

• [6] On 22 May 2025, the Respondent filed a Form F1 seeking dismissal of the Applicant's claim pursuant to section 399A of the Fair Work Act 2009 (Cth) (the Act).[1]

• [7] The same day, my Chambers sent the following correspondence to parties:

"The Respondent has filed an application under section 399A of the Fair Work Act 2009 to have this matter dismissed on the basis that the Applicant has unreasonably failed to attend Commission hearings or prosecute his claim.

The Applicant is directed to provide any response he has to the application for his claim to be dismissed by no later than 5:00pm on Thursday, 29 May 2025.

The matter is then listed for a hearing to consider the Respondent's section 399A application on 3 June 2025 at 1:00pm (SA Time). The Commissioner will consider any material filed by the parties, or submissions made at the hearing, and determine whether this matter should be dismissed.

If the Applicant does not file a response or participate in the hearing of the section 399A application, the Commissioner will proceed to determine the matter on the material before her, which may result in the dismissal of the Applicant's claim for an unfair dismissal remedy."

• [8] The Applicant did not provide any response to the Respondent's application to dismiss his claim for unfair dismissal.

• [9] The Applicant also failed to attend the hearing of the Respondent's section 399A application on 3 June 2025.

• [10] By way of additional context, the Commission's file contains a letter sent to the Applicant on 1 May 2025 confirming that the initial conciliation conference before a staff conciliator did not proceed because the Applicant did not join the online conciliation conference and did not respond to a message left for him. The Commission's file notes five attempts to contact the Applicant by phone on the day of the scheduled conciliation conference.

• [11] Mr Anderson has not made any contact with the Commission since the matter was referred to my Chambers on 6 May 2025. A review of the Commission's file does not evidence any contact from Mr Anderson with the Commission after he filed his application on 1 April 2025.

• [12] The Commission has been corresponding with Mr Anderson using the email address he provided in his Form F2 Application. My Chambers has also attempted to contact the Applicant by telephone on more than one occasion.

• [13] At the conclusion of the hearing, I advised of my decision to grant the Respondent's s.399A application and order that the Applicant's unfair dismissal application be dismissed. I now issue my reasons in writing.

• [14] Section 399A of the Act provides:

(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.

• [15] A Full Bench of the Commission set out the process that should be followed before the Commission dismisses an application under section 399A of the Act in Lockyear v Cox[2]:

"[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. 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." (footnotes omitted)

• [16] The application was made by the Respondent employer in accordance with section 399A(2) by way of filing a Form F1.

• [17] The application was sent by email to the Applicant, at the email address provided by the Applicant when he filed his application, on 22 May 2025. The Applicant was invited to respond to the application and provide reasons for his non-attendance by 29 May 2025.

• [18] The same email also advised the Applicant that the matter would proceed to a hearing on 3 June 2025 to address the Respondent's application to dismiss the matter. The email also confirmed that should the Applicant not respond to the email or attend the hearing, "the Commissioner will proceed to determine the matter on the material before her, which may result in the dismissal of the Applicant's claim for an unfair dismissal remedy."

• [19] I am satisfied that the Applicant has unreasonably failed to attend two directions hearings conducted by the Commission in relation to his application and has provided no explanation as to why he has failed to attend those hearings.

• [20] The Applicant has also failed to take up an invitation to provide a response to the s.399A application. The Applicant was on notice that if he failed to respond or attend the hearing in which the Respondent's application was to be addressed, the Commission may dismiss his application without providing him with another opportunity to provide reasons for his non-attendance, relying on the material before the Commission.

• [21] The Applicant's failure to engage with the Commission and prosecute his claim after he filed it has been unreasonable. The Commission has repeatedly attempted to contact the Applicant by telephone and email relying on contact details the Applicant provided to the Commission. At the very least, I am satisfied that the Applicant has unreasonably failed to attend two directions hearings before me in relation to his application and has provided no explanation as to why he has failed to attend those hearings.

• [22] The Respondent's application to have Mr Anderson's claim for an unfair dismissal remedy dismissed was granted pursuant to section 399A(1)(a) at the conclusion of the hearing on 3 June 2025.

[1] Regarding the requirements to lodge an application, see Lockyear v Cox [2021] FWCFB 875.

[2] [2021] FWCFB 875.

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