s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application by Respondent under s 399A to dismiss application - application dismissed.

[1] On 3 November 2025, Ms Tynae Jingo made an application under section 394 of the Fair Work Act 2009 (Cth) for unfair dismissal remedy, against 4cyte Pathology (the Employer). The Employer disputes the application and has raised a jurisdictional objection that Ms Jingo was not dismissed.

[2] For the reasons given below, I have determined to dismiss Ms Jingo's unfair dismissal application, pursuant to section 399A of the Act.

[3] Ms Jingo made an application for unfair dismissal remedy on 3 November 2025, using the Commission's online lodgement system. In her Form F2, Ms Jingo provided a mobile number and an email address, all of which have been used by the Commission throughout the conduct of this matter.

[4] The application was first listed for conciliation before a staff conciliator of the Fair Work Commission on 12 December 2025. Ms Jingo did not attend.

[5] Ms Jingo's application was allocated to my Chambers on 18 December 2025. On 23 December 2025, Chambers issued a Notice of Listing to the parties for a Case Management Conference on 12 January 2026. The Notice of Listing required parties to confirm their appearances by no later than 5:00PM on 9 January 2026.

[6] At approximately 1:55PM on 7 January 2026, my Chambers attempted to contact Ms Jingo via her mobile number. Ms Jingo did not respond to the call.

[7] At approximately 4:20PM on 8 January 2026, my Chambers called and texted Ms Jingo via her mobile number requesting she confirm her attendance in the Case Management Conference. Ms Jingo did not respond to the call.

[8] Ms Jingo did not confirm her appearances or attend the Case Management Conference on 12 January 2026.

[9] On 12 January 2026, my Chambers attempted to contact Ms Jingo twice at 9:05AM and 9:08AM on her provided mobile number and was unable to establish contact with Ms Jingo. The Case Management Conference proceeded without Ms Jingo.

[10] At approximately 10:54AM on 12 January 2026, my Chambers sent a further email to the parties noting Ms Jingo's non-compliance, which stated as follows:

RE: U2025/17391 - Tynae Jingo v 4cyte Pathology

Your unfair dismissal application was listed for Case Management Conference, on Microsoft Teams, at 9am today. You did not attend. I tried to contact you on your mobile phone two times this morning and was unable to reach you.

I note that you also did not attend the Fair Work Commission conciliation listed on 12 December 2025, and Chambers has not had a response to phone calls of 7 January 2026 and 8 January 2026, or a text message of 8 January 2026.

Failure to attend proceedings before a Member of the Commission is a serious matter. Commissioner Allison is now considering whether your application should be dismissed for want of prosecution.

If the Commissioner dismisses your application, her reasons for doing so will be published in a publicly accessible written decision in which you will be named.

Commissioner Allison directs you to file with the Commission and serve on the Respondent submissions addressing why you did not attend the Case Management Conference today, and why the Commission should not dismiss your application. You should also provide any evidence, including documentary evidence. For example, if you are or have been unwell, the Commission requires a medical certificate. This material is required by no later than 5pm Wednesday 14 January 2026.

If you file material by the due date the Commission will consider your submissions and may reschedule the matter for a further Case Management Conference.

If you don't provide your reasons by 5pm Wednesday 14 January 2026, your application may be dismissed without further notice."

[11] On 15 January 2026, the Respondent made an application under s 399A of the Fair Work Act 2009 (Cth) to dismiss Ms Jingo's application on the basis that Ms Jingo failed to comply with directions of the Commission.

[12] On 16 January 2026 my Chambers made further attempts to contact Ms Jingo by way of phone call to Ms Jingo's mobile number, and a final email chasing a response to my directions of 12 January 2026.

[13] To date, Ms Jingo has not provided any further response to the Commission.

"Section 399A - Dismissing applications

(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."

[14] Section 399A(1)(a) and (b) relevantly provide that the Commission may dismiss an application if it is satisfied that the Applicant has unreasonably failed to attend a conference or hearing held by the Commission, or has unreasonably failed to comply with a directions of the Commission relating to the application.

[15] Ms Jingo has failed to comply with my directions of 12 January 2026, and failed to attend the Case Management Conference of 12 January 2026, despite being required to do so. Ms Jingo has provided no reason for these failings.

[16] I am satisfied that despite being properly advised of the various opportunities to advance her case, Ms Jingo has unreasonably failed to take sufficient actions to engage with the Commission to prosecute her case. I have provided Ms Jingo multiple, reasonable opportunities and have expressly put her on notice that a failure to engage with the Commission by the due date would lead to the dismissal of the application without further notice.

[17] Given the above, I find that Ms Jingo's failure to attend the Case Management Conference on 12 January 2026 and comply with my directions is unreasonable. The discretion in s 399A is enlivened and it is appropriate to exercise it.

[18] The Respondent's application under s 399A is granted, and Ms Jingo's application is dismissed.

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