s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed pursuant to s.399A of the Act

• [1] On 13 February 2025 Ms Jessica Spies (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Spies said that her employment was terminated by DREAM SKY MANAGEMENT PTY LTD (Respondent) on 11 February 2025. The Respondent raised a jurisdictional objection being that the Applicant was not dismissed.

• [2] The matter was listed for a mention/directions hearing on 26 March 2025. On March 27 2025, directions and an electronic link to the Commission's unfair dismissals benchbook were sent to the parties. Ms Spies was required to file submissions, witness statements and any other evidence she sought to rely on in support of her application and in response to the Respondent's jurisdiction objection by 24 April 2025.

• [3] Ms Spies did not file a witness statement or submission by the 24 April 2025 in accordance with directions.

• [4] On 28 April 2025, at 9:46am my Chambers sent correspondence to Ms Spies requesting that she provide reasons for the non-compliance with the 27 March 2025 directions. The email provided a further opportunity for her to file material or advise chambers if she wanted to proceed with her application. No response or material was received from Ms Spies.

• [5] On 29 April 2025, further correspondence was sent to Ms Spies noting that she had failed to respond to the non-compliance correspondence of 28 April 2025. Ms Spies was notified that due to her non-compliance with the directions and the absence of any contact with the Commission I was considering whether to dismiss her application pursuant to s.587 of the Act. Ms Spies was advised that a non-compliance hearing would be listed for 9:00am, 30 April 2025. Ms Spies was directed to inform the Commission by 4:00pm, 29 April 2025 if she was proceeding with her application or if she wished to withdraw the application.

• [6] On 29 April 2025, a notice of listing was sent to the parties directing them to attend a non-compliance hearing on 30 April 2025.

• [7] My Chambers attempted to contact Ms Spies by telephone at 12:20pm and 4:42pm on 29 April 2025, both of these calls went answered.

• [8] No correspondence was received from Ms Spies prior to the proceeding at 9:00am, 30 April 2025. My Chambers attempted to contact Ms Spies by telephone at the commencement of the hearing however the call went unanswered. To date, Ms Spies has not responded to any correspondence from my Chambers.

• [9] The hearing commenced in Ms Spies absence. DREAM SKY MANAGEMENT PTY LTD made an application to dismiss the application pursuant to s.399A. I waived compliance with the Fair Work Commission Rules 2013[1] and accepted the oral application made by the Respondent.

• [10] After the hearing further correspondence was sent from my Chambers informing Ms Spies that a s.399A application had been made. Ms Spies was provided with an opportunity to file material as to why her application should not be dismissed. Ms Spies was notified that her case may be dismissed without further notice. Ms Spies has not provided a response.

• [11] Relevantly, Section 399A of the FW Act provides as follows:

(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.

(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] Ms Spies has not filed any materials to support her application, she has not complied with the directions issued from my Chambers and has not responded to any attempts by my Chambers to contact her. Further Ms Spies did not attend the non-compliance hearing or respond to any subsequent correspondence requesting she contact my Chambers.

• [13] Further I am satisfied that Ms Spies has been provided with a reasonable opportunity to comply with the directions of this Commission and has unreasonably failed to do so. I am also satisfied that Ms Spies has been informed that an application has been made by the Respondent to have her application dismissed and she has been provided with an opportunity to respond however she has chosen not to do so.

• [14] Accordingly, the Respondent's application is granted, and I exercise the discretion afforded under s.399A of the Act to dismiss Ms Spies application for an unfair dismissal remedy.

• [15] An order[2] to this effect will be issued with this decision.

[2] PR786943.

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