s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s.587.

• [1] On 30 April 2025, Ms Yvonne Jenner (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Yarra Journey Makers (the Respondent).
• [2] On 30 May 2025, the matter was listed for a conciliation conference before a Commission staff conciliator. Parties were advised of this through a notice of listing issued on 9 May 2025. On 15 May 2025, the Applicant made a request for an adjournment to the conference to 11 June 2025 due to carer responsibilities requiring her to fly overseas with a parent. The Respondent was not served this request by the Applicant. On 16 May 2025, the Commission made attempts to contact the Applicant via mobile phone to make inquiries about her request, however, she was not reachable. On 20 May 2025, this adjournment request was refused as the Applicant did not notify the Respondent the reasons for the request.

• [3] The conference on 30 May 2025 did not take place as the Applicant did not attend.
• [4] Subsequently, the matter was allocated to my Chambers on 11 June 2025 for determination.
• [5] On 18 June 2025, directions were issued for the filing of submissions and evidence, and the matter was listed for a Mention on 26 June 2025 and set down for a Hearing on 11 August 2025. Paragraph [12] of the Directions advised that 'Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned.'

• [6] Due to the Respondent's availability, the Mention was adjourned to 17 July 2025.
• [7] The Applicant did not attend the Mention at 10:00AM on 17 July 2025. By 10:00AM, my Chambers attempted to contact the Applicant on her mobile phone number that was provided in her Form F2 application. The Applicant was unreachable. The Applicant was also sent the following correspondence ahead of the Menion:

I refer to the matter above and the Mention listed before Commissioner Connolly at 10:00am TODAY, 17 July 2025.

I have attempted to contact your telephone number several times and have not been successful.

Please note that if you do not attend the Mention by 10:05AM, the Commissioner will proceed without you."

• [8] The Mention was conducted without the Applicant. The Respondent was represented by Mr Stylianos Nikias and Ms Paras Georgoulos.
• [9] The Applicant's initial submissions were due to be filed to Chambers and served on the Respondent by 4:00PM on 9 July 2025. The Applicant did not file any submissions, nor did she send any correspondence to the Commission.
• [10] On 17 July 2025, following the Mention, my Chambers sent a non-compliance email to the Applicant in the following terms:

I refer to the matter above and Directions attached, issued on 18 June 2025.

As per the Directions, you were required to file submissions by 4:00pm on Wednesday, 9 July 2025. You did not comply with these Directions as the Commissioner is yet to receive any material from you.

Additionally, you also did not attend the Mention listed before Commissioner Connolly at 10:00am TODAY, 17 July 2025.

As you have not complied with the Directions, not attended the Mention and have not yet explained your reasons for doing so, the matter has been listed for a Non-compliance Hearing at 12:30pm AEST on Tuesday, 22 July 2025 via Microsoft Teams.

You are directed to attend this Hearing and explain your non-compliance.

Please note, if you do not attend this Hearing your application is likely to be dismissed entirely.

Alternatively, if you do not intend to pursue your application further, please file a signed Form F50 Notice of Discontinuance as soon as practicable.

At this stage, the Directions relative to the Respondent are held in abeyance."

• [11] Prior to the commencement of the Non-compliance Hearing on 22 July 2025, my Chambers attempted to contact the Applicant via mobile phone to confirm if she would join the non-compliance hearing and sent the Applicant the following correspondence:

I refer to the matter above and the Non-compliance Hearing listed before Commissioner Connolly at 12:30PM TODAY, 22 July 2025.

I have attempted to contact your telephone number several times and have not been successful.

Please note that if you do not attend the Hearing by 12:35PM, the Commissioner will proceed without you.

If you do not attend this Hearing your application is likely to be dismissed entirely.

Alternatively, if you do not intend to pursue your application further, please file a signed Form F50 Notice of Discontinuance as soon as practicable."

• [12] The Applicant did not respond and did not attend the Non-compliance Hearing. The Respondent was present.
• [13] To this date, no communication has been received from the Applicant since the adjournment request on 15 May 2025 regarding the staff conciliation conference.
• [14] s.587 of the Act provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

• [15] It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application "for want of prosecution" is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
• [16] In Raschilla v Ausino West Pty Ltd[3] (Ausino) the Full Bench emphasised that the Commission's powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an Applicant's right to have their substantive application heard and determined by the Commission.
• [17] In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute her case. The principle of 'a fair go all round' applies to both employers and employees. I find that the Applicant's non-participation in the Commission's processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
• [18] As noted above, s.587(1) does not limit when the Commission may dismiss an application. Ms Jenner has, in effect, abandoned her application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss Ms Jenner's application

• [19] The application lodged by Ms Yvonne Jenner pursuant to s.394 of the Act on 30 April 2025 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

[1] Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [48].

[3] [2017] FWCFB 5952.

Printed by authority of the Commonwealth Government Printer