s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed - s 587

[1] On 31 December 2025, Muhammad Shakeel (the Applicant) made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act) alleging that he had been dismissed by Uber (the Respondent).

[2] The matter was allocated to my Chambers on INSERT DATE and on 11 February 2026, Chambers wrote to the parties outlining my preliminary view that the Applicant's unfair dismissal application had no reasonable prospects of success. That email noted that decisions of the Commission had consistently held that the Respondent's 'Driver Partners' were not employees and provided information concerning applications for an unfair deactivation remedy under s 536LU of the Act. The Applicant was directed to advise Chambers whether he wished to discontinue or press his unfair dismissal application by 16:00hrs (AWST) on 13 February 2026. Chambers received no response by this deadline.

[3] On 13 February 2026, Chambers wrote to the parties noting that the Applicant had failed to respond and directed him to do so by 16:00hrs (AWST) on 16 February 2026. Chambers also sent the Applicant an SMS message alerting him to the correspondence and the need to reply. Chambers received no response.

[4] On 16 February 2026, Chambers telephoned the Applicant. The Applicant said that he had not received Chambers' emails and SMS message. Chambers confirmed that the email and telephone number on file were correct. Whilst on the telephone with the Applicant, Chambers forwarded him our 11 and 13 February 2026 emails and the Respondent's Form F3. The Applicant confirmed receipt of the email and Form F3. Chambers briefly explained the content of the emails and the Applicant was directed to read them carefully and inform chambers whether he wished to discontinue or press his unfair dismissal application by 10:00hrs (AWST) on 18 February 2026.

[5] Shortly thereafter, on 16 February 2026, Chambers sent the parties an email summarising the telephone conversation with the Applicant and confirming the above direction in writing.

[6] On 18 January 2026, having received no response from the Applicant, Chambers left a voicemail message with the Applicant at 12:38hrs (AWST). The Applicant returned the telephone call a short time later, but the call was disconnected as my Associate was introducing himself. Chambers attempted to re-connect several times and left two voicemail messages asking the Applicant to return Chambers' calls. At 13:05hrs (AWST), Chambers sent the Applicant a text message noting that his response was overdue and that he needed to reply to Chambers emails' or return Chambers' telephone calls urgently. To date, no response has been received.

[7] On 19 February 2026, Chambers emailed parties concerning the Applicant's lack of response and advised them that I would proceed to determine whether the application should be dismissed under s 587(1)(c) of the Act. Directions were issued which required the Applicant to file any written submissions, witness statements, a document list, and any material upon which he wished to rely by no later than 16:00hrs (AWST), on 24 February 2026. The Directions also provided for the Respondent to file submissions and materials by 27 February 2026 and permitted the Applicant to file submissions in reply by 3 March 2026.

[8] On 25 February 2026, having received no response from the Applicant, Chambers informed the parties by email that I would determine whether to dismiss the application without requiring submissions from the Respondent, and that my written decision would issue in due course.

[9] The Commission's powers to dismiss an application are set out generally at s 587 of the Act. That section states:

(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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

[10] Whenever exercising the power to dismiss an application under s 587 of the Act, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

• [11] The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]

• [12] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result 'in the complete extinguishment of an applicant's right to have his/her application for relief orders under beneficial legislation, heard and determined according to law'.[3]

[13] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done nothing to prosecute his case. This is notwithstanding the allocation of this Commission's resources to assist him with his unfair dismissal application and alert him to an alternative course of action. The Applicant's non-compliance with the directions and lack of response to written and verbal communication from Chambers, in circumstances where he had not informed the Commission of any unavailability, have led me to this conclusion.

[14] It follows that in the circumstances of this matter, I consider the Applicant's application has no reasonable prospects of success and, therefore, the Applicant's application is dismissed pursuant to s 587(1)(c) of the Act.

• [15] An Order[4] to this effect is issued concurrently.

[1] Viavattene v Health Care Australia [2013] FWCFB 2532, [39].

[2] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].

[4] PR797236.

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