s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Applicant non-compliant with Directions of the Commission - s.399A application - Unfair dismissal application dismissed.

• [1] On 11 June 2025, Ms Razan Lebdeh (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Dusk Australasia Pty Ltd (the Respondent). Ms Labdeh's employment had been terminated with effect from 8 June 2025.

• [2] On 30 June 2025, the Respondent filed a Form F3 Employer Response with the Commission, raising a jurisdictional objection to the application as it alleged that that the Applicant had not been dismissed, and had instead resigned voluntarily.

• [3] The Commission sought to hold two staff conciliation conferences to attempt to resolve the matter via mediation. The first listed conciliation on 15 July 2025 did not proceed as the email containing the link for the conference was never sent to the parties by the Commission. The parties were notified of this and agreed for a rescheduling of the conference. The second listed conciliation conference on 2 September 2025 was not attended by the Applicant, so also could not proceed.

• [4] I was allocated the matter on 2 September, and Directions were issued to the parties on 9 October 2025. The Directions required the parties to attend a Case Management Conference at 9:30AM on Monday, 20 October 2025 and required the Applicant file an outline of argument, a statement of evidence and any other documentary material she intended to rely on in support her application by 4.00PM Thursday, 30 October 2025.

• [5] Ms Labdeh did not attend the Case Management Conference on 20 October 2025. My Chambers attempted to contact her via SMS to the number she provided in her Form F2 Application but received no response. The conference took place without Ms Labdeh in attendance and my Chambers sent the following email to the parties following the conference to advise of the outcome:

A case management conference was conducted in this matter this morning via Microsoft Teams, pursuant to the Instructions previously issued. The Applicant did not join the conference. Attempts were made to contact the Applicant, to no avail.

Consistent with the warning provided at paragraph D of the Important Information section of the Instructions, the conference proceeded in the absence of the Applicant.

• the existing Instructions for the hearing and determination of the matter were confirmed, inclusive of a one-day hearing in person on 2 December 2025;
• the Respondent has permission to be legally represented in the proceeding generally; and
• the Respondent will provide an application pursuant to section 399A of the Act for the matter to be dismissed as soon as possible and no later than 4:00PM (AEDT) on Friday 24 October 2025. Upon reviewing the section 399A Application, the Commissioner will provide a reasonable opportunity for the Applicant to respond to it.

• [6] On 24 October, the Respondent filed with the Commission a Section 399A application for an order to be made to dismiss the Ms Labdeh's unfair dismissal application. My Chambers emailed the parties on 27 October noting that the Respondent's application had been received and directing Ms Labdeh to provide a response to the application by no later than close of business on Friday, 31 October 2025. The Applicant did not file any material or make any contact with my Chambers or the Respondent in relation to this direction, nor did she comply with or seek an extension of the direction to file her substantive material on 30 October 2025.

• [7] I now turn to determining the s.399A application. Section 399A of the 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."

• [8] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
• [9] As the Applicant did not file any submissions in opposition to the s.399A application, I will determine the application on the papers.

• [10] There is no material presently before the Commission that would persuade me that the Applicant has attempted to defend the s.399A application. Her lack of engagement in the proceedings is completely unexplained. I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant's application for an unfair dismissal remedy.

• [11] After considering all the material, Ms Lebdeh's application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision

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