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] Ms Gipsy Simmonds (the Applicant) lodged a claim for unfair dismissal, claiming she was dismissed from her employment with Feather Brow and Skin Clinic Co (the Respondent) on 25 June 2025.

• [2] The Respondent provided their Form F3 - Employer's Response on 18 July 2025.

• [3] The matter was listed for a directions hearing on 27 August 2025. The Respondent attended the directions hearing, but there was no attendance by Ms Simmonds. My Chambers made attempts to contact the Applicant by telephone to request she join the directions hearing, however, she did not answer and a message was left requesting her attendance. The directions hearing proceeded in the absence of the Applicant and I issued directions that the parties file material addressing the merits of the Applicant's unfair dismissal claim and the Respondent's jurisdictional objection.

• [4] The Applicant did not file any material in accordance with the directions. This prompted my Chambers to send the following email to the Applicant on 25 September 2025:

"As per the directions issued by Commissioner Thornton on 27 August 2025, material for the Applicant was due to be filed with the Commission, and served on the Respondent, by 4:00pm on Wednesday, 24 September 2025.

The Commission has not received any material from the Applicant, nor has it received a request for an extension.

Please advise by 10am (SA Time) tomorrow, why material for the Applicant has not been filed in accordance with the Commissioner's directions.

If no response is received from the Applicant, the matter will be listed for non-compliance hearing.

You are required to engage with the Commission and comply with the directions, otherwise your application may be dismissed.

The Commission can dismiss your application on its own motion for what is referred to as 'want of prosecution' or a failure to progress your matter by attending hearings and filing evidence under section 587 of the Fair Work Act."

• [5] The Applicant did not respond to the email and the matter was listed for a non-compliance hearing, which took place on 30 September 2025. There was no attendance by the Applicant at the non-compliance hearing. At this hearing, the Respondent told the Commission it would file an application under section 399A of the Fair Work Act 2009 (the Act) to have the Applicant's claim dismissed.

• [6] On 13 October 2025, the Respondent filed a Form F1 seeking dismissal of the Applicant's claim under section 399A of the Act on the basis the Applicant failed to file material in accordance with the directions and did not attend the non-compliance hearing.

• [7] On 14 October 2025, my Chambers sent an email to the parties, attaching the Respondent's s.399A application. The email set out:

"The Respondent has filed an application under section 399A of the Fair Work Act 2009 to have this matter dismissed (see attached email) on the basis the Applicant has unreasonably failed to attend hearings listed before the Commission and failed to follow directions to file any material in support of her case.

The Applicant is directed to provide any response she would like to make to the application for her claim to be dismissed by no later than close of business on Friday, 24 October 2025. In the response, the Applicant must advise the Commission if she objects to her matter being dismissed.

The matter shall then proceed to a hearing to consider the Respondent's section 399A application. The Commissioner will consider the material filed by both parties, hear any submissions the parties wish to make and determine whether this matter should be dismissed.

The hearing shall replace the original hearing listed on Wednesday, 29 October 2025 and will take place on Microsoft Teams. Please see the attached amended Notice of Listing.

If the Applicant does not file a response or participate in the hearing, the Commissioner will proceed to determine the matter on the information before the Commission."

• [8] The Applicant did not respond to this email.

• [9] A hearing was held on 29 October 2025 to consider the Respondent's section 399A application. The Applicant did not attend the hearing.

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

• [11] 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.

• [12] 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[1]:

"[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 F1.14 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."

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

• [14] The application was served on the Applicant by email, at the email address provided by the Applicant when she filed her application. The Applicant was invited to respond to the application by close of business on 24 October 2025.

• [15] The same correspondence advised the Applicant that the matter would proceed to a hearing on 29 October 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 information before the Commission."

• [16] The Applicant was served with the application to dismiss and had an opportunity to respond, at the very least by attending the hearing. Ms Simmonds did not respond to the Commission and did not attend the hearing. The Applicant was on notice that should she fail to engage with the process, the Commission may dismiss her application.

• [17] The Commission has also attempted to contact the Applicant by telephone on multiple occasions, which have been unsuccessful.

• [18] The Commission provided several opportunities to Ms Simmonds to engage with her matter and to allow her the time and opportunity to prosecute her claim. Unfortunately, Ms Simmonds has not taken up those opportunities.

• [19] I note that the Respondent cited Ms Simmons' failure to attend the non-compliance hearing as one of the bases of their application. I note that in addition, Ms Simmons did not attend the initial directions hearing. I am satisfied that Ms Simmonds' failure to respond to any contact from the Commission to the telephone number and email address she provided in her application is unreasonable. Her failure to attend two hearings of the Commission, failure to file materials in support of her case and failure to defend the application to dismiss her application are also unreasonable.

• [20] Given the efforts to which the Commission has gone to make contact with Ms Simmonds and her failure to respond to that contact, I considered it appropriate in the circumstances to exercise my discretion to dismiss the Applicant's application for an unfair dismissal remedy.

• [21] The Respondent's application to dismiss the Applicant's unfair dismissal application pursuant to section 399A was granted and the unfair dismissal application is dismissed.

[1] [2021] FWCFB 875.

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