Fair Work Act 2009

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 Lori Castro (the Applicant) lodged a claim for unfair dismissal, claiming she was dismissed from her employment with the Trustee for Spotlight Stores Trading Trust (the Respondent) on 6 December 2024.

• [2] The Respondent provided their Form F3 - Employer Response on 2 February 2025.

• [3] The matter was listed for directions hearing on 17 February 2025. When Ms Castro did not join the directions hearing my Chambers contacted her by telephone to request she join the proceeding. Ms Castro confirmed on the telephone call that she would join the directions hearing, but then did not do so. The directions hearing proceeded with the Respondent in attendance and I issued directions to proceed to hearing regarding the merits of the matter.

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

"As per the directions issued .., you were to file your materials in support of your unfair dismissal application by no later than 4:00pm (ACDT) Friday, 14 March 2025.

The Commission has not received any material from you, 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 on Wednesday.

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 ... 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 non-compliance hearing.

• [6] On 19 March 2025, the Commission attempted to convene a non-compliance hearing, however, there was no attendance by either party and the hearing could not proceed.

• [7] After the directions hearing my Chambers sent the following email to parties:

"This matter was listed for a non-compliance hearing on 19 March 2025 after the Applicant did not file materials in accordance with the directions issued on 18 February 2025.

On 19 March 2025, there was no attendance from either party. The Applicant also failed to attend the directions hearing of 17 February 2025. Attendance at the hearings is compulsory and expected by the Commission.

The Commission advises the Applicant that if no contact is made with the Commission or material filed in accordance with the directions by close of business this Friday, 4 April 2025, the Commission will consider dismissing the Applicant's application pursuant to section 587(1)(c) of the Fair Work Act. If the Applicant does not pursue her case in the Commission, the matter may not have any reasonable prospects of success."

• [8] No contact was received from the Applicant.

• [9] On 8 April 2025, a voicemail was left for the Applicant by my Chambers communicating that she needed to urgently get in contact with the Commission or her application may be dismissed.

• [10] The Respondent contacted my Chambers on 8 April 2025 to enquire as to whether the Applicant had responded to the further contact from the Commission. On 10 April 2025, the Respondent advised the Commission that it intended to lodge an application to dismiss the application pursuant to section 399A of the Fair Work Act 2009 (the Act). In light of the Respondent's correspondence my Chambers requested that if an application was to be made, that it be filed by 14 April 2025.

• [11] On 14 April 2025, the Respondent filed a Form F1 seeking dismissal of the Applicant's claim pursuant to section 399A of the Act on the basis that the Applicant had unreasonably failed to attend a conference or hearing conducted by the Commission and failed to comply with a direction of the Commission.

• [12] On 15 April 2025, the following email was sent by my Chambers:

"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 her claim.

The Applicant is directed to provide any response she has to the application for her claim to be dismissed by no later than close of business on Thursday, 24 April 2025.

The matter is then listed for a hearing to consider the Respondent's section 399A application. The Commissioner will consider the material filed by both parties and determine whether this matter should be dismissed. ...

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."

• [13] No response was received from the Applicant.

• [14] A hearing was held on 2 May 2025 to consider the Respondent's section 399A application. There was no attendance by the Applicant. Ms Hunt, Head of HR Operations, appeared on behalf of the Respondent.

• [15] 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.

• [16] 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.

• [17] 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." (footnote omitted)

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

• [19] 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 April 2025.

• [20] The same correspondence advised the Applicant that the matter would proceed to a hearing on 2 May 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."

• [21] When the Applicant failed to attend the hearing for the section 399A application on 2 May 2025, my Chambers attempted to contact the Applicant by telephone. This phone call went unanswered and a voicemail was left setting out that the Applicant should join the hearing to respond to the Respondent's application.

• [22] I am satisfied that the Applicant has unreasonably failed to attend a directions hearing and a non-compliance hearing conducted by the Commission in relation to her application and has failed to file material in support of her claim in compliance with the directions issued. The Applicant has also failed to provide a response to the section 399A application as directed and failed to attend the hearing of that application.

• [23] The Applicant has had virtually no contact with the Commission since the matter was referred to my Chambers and has provided no explanation as to why she has failed to engage with the Commission. The Applicant was on notice that if she failed to attend the hearing in which the Respondent's application was to be addressed, the Commission may dismiss her application without providing her with another opportunity to provide reasons for her non-attendance and non-compliance, and in reliance on the material before it.

• [24] The Commission corresponded with Ms Castro using the email address she provided in her Form F2 Application on a number of occasions. The Commission has also attempted to contact the Applicant by telephone multiple times and other than on the first occasion when the Applicant represented that she would participate in a directions hearing that she then failed to do, efforts to contact her by telephone have been unsuccessful.

• [25] The Commission has provided a number of opportunities to Ms Castro to engage with her matter in an effort to ensure she had ample time to prosecute her claim. Unfortunately, Ms Castro has either been unable or chosen not to take up those opportunities.

• [26] I am satisfied that Ms Castro has unreasonably failed to attend a number of hearings as set out above, and unreasonably failed to comply with directions of the Commission to file materials in support of her claim and respond to the section 399A application.

• [27] Given the efforts to which the Commission has gone to make contact with the Applicant and Ms Castro's lack of response 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.

• [28] The Respondent's application to have Ms Castro's claim for an unfair dismissal remedy dismissed was granted pursuant to section 399A(1)(a) and (b) at the conclusion of the hearing on 2 May 2025.

[1] [2021] FWCFB 875.

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