Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] On 26 June 2025, Mrs Ayanka Wedaarachchige applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) contesting her dismissal by MyHomeCare Pty Ltd.

• [2] Mrs Wedaarachchige's application was listed for two conciliations before a Commission staff member on 6 August and 16 October 2025. Mrs Wedaarachchige did not attend either conciliation. The matter was allocated to my Chambers, and I directed the parties to attend a case management conference on 10 December 2025. Mrs Wedaarachchige did not attend the case management conference and did not respond to the repeated calls and emails from my Chambers.

• [3] On 10 December 2025, my Chambers wrote to Mrs Wedaarachchige directing her to confirm whether she still wished to progress with her application. Mrs Wedaarachchige was also advised that if we did not hear from her, it could result in her application being dismissed.

• [4] On 15 December 2025, my Chambers again wrote to Mrs Wedaarachchige to advise I was considering dismissing her application under s 587(1)(c) of the Act on the basis her application had no reasonable prospects of success. Mrs Wedaarachchige was informed that she had until 17 December to make any submissions. To date, Mrs Wedaarachchige has not responded to any contact from my Chambers.

• [5] Section 587 of the Act 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

(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.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [6] I refer the decision of Deputy President Easton in Bond v Carbridge Pty Ltd T/A Carbridge,[1] where at [11] - [16] of the decision, the Deputy President summarised the relevant principles that apply to the exercise of the Commission's power under s 587. I respectfully agree and adopt the Deputy President's observations.

• [7] In this matter, I consider it appropriate to exercise my discretion to dismiss Mrs Wedaarachchige's application under s 587(3)(c) of the Act. Section 587 should be engaged cautiously. However, Mrs Wedaarachchige has not attended any of the listings for this matter, including the case management conference before me. Without her participation, her case has no reasonable prospects of success.

• [8] The application is therefore dismissed. An order will issue accordingly.[2]

[1] [2024] FWC 1302.

[2] PR795479

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