s.365 - General protections

Application to deal with contraventions involving dismissal - Jurisdictional objection Application filed out of time - Directions issued - Applicant failed to file material as directed - Applicant failed to provide explanation for failure to comply with directions - Direction extended and Applicant again filed to comply with filing material - failure to progress application - s.587 - application dismissed for want of prosecution

• [1] Mr Nicholas Scorer (the Applicant) made a general protections application to the Fair Work Commission (the Commission) to deal with contraventions involving dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act) on 22 July 2025. Mr Scorer stated in his application that he had been dismissed from his employment with Story House Early Learning Pty Ltd (the Respondent) on 4 August 2025.

• [2] The Respondent, in their Form F8A - Response to a general protections application involving dismissal, stated that they raised a jurisdictional objection that the application had been filed out of time.

• [3] The Full Court of the Federal Court's decision of Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine whether the Commission has jurisdiction in regard to a s.365 application. That jurisdiction is dependent upon determining whether an application has been filed in time and if not whether exceptional circumstances existing that warrant the grant of an extension of time by the Commission.

• [4] The matter was allocated on 8 October 2025, and on 10 October 2024, pursuant to the requirements established in Coles Supply Chain Pty Ltd v Milford,[2] directions were set for the parties to file their submissions and evidence in relation to the Respondent's jurisdictional objection.

• [5] The directions required that the Applicant file its written submissions, witness statements and other documentary evidence by 4pm on 16 October 2025. On 14 October 2025, chambers received a blank email from the Applicant. On 15 October 2025, chambers wrote to the parties acknowledging receipt of blank correspondence from the Applicant and requesting that the Applicant resend the full response intended. The Applicant failed to respond.

• [6] The Applicant also failed to file his written submissions, witness statements and other documentary evidence as directed, by 4pm 16 October 2025. On 20 October 2025, chambers wrote to the Applicant again requiring an explanation for his failure to comply with the Commission's directions and providing him with an opportunity to file his material by 4pm on 21 October 2025. Again, the Applicant failed to file his material and failed to provide the explanation sought by the date required or at all since.

• [7] Section 587 of the Act is as follows:

(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:

• [8] In relation to the general power to dismiss an application under s.587(1), it is considered that this should be used sparingly and approached with caution. [3] As per the decision of Resta v Myer Ptd Ltd:[4]

"[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 'the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion'." (Emphasis added).

• [9] Further, a recent Full Bench of the Commission in Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd[5] referred to the relevant application of the principles from the case of Hoser v Hartcher[6] in emphasising that a Member, in approaching a dismissal application, must weigh the impact of a decision to dismiss an application on each party:

"[33] The exercise of a discretion by a member of the Commission to summarily dispose of proceedings on grounds of want of prosecution, under s 399A in the case of unfair dismissal proceedings or otherwise, involves a balancing exercise in which a variety of factors are to be considered. Considerations such as those set out by Simpson J in Hoser v Hartcher are likely to be relevant. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. That assessment must also be undertaken taking into account the obligations of the Commission under s 577(1) of the Act and the impact of any non-compliance with directions on the operations of the Commission more broadly."[7] (Emphasis added).

• [10] In the decision of May v City of Gosnells[8] - a matter in which the Applicant failed to respond to the Commission despite various attempts to contact him - the Commission referred to the use of s.587(3) to dismiss the matter as follows:

"[7] Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words "without limiting when FWC may dismiss an application" in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] If an applicant's conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

[9] In these circumstances I am satisfied that the facility under s.587 can and should be

[10] Mr May has also been on notice of the likely consequences for his application if he did not respond to the Commission's inquiry and it is quite possible that he has abandoned his application."[9] (emphasis added)

• [11] As detailed above, the Applicant refused to file his material as directed by the Commission despite various attempts to contact him including by email. It is emphasised that, at all times, the attempts to contact the Applicant were made using the email address that he submitted on his lodgement of his application.

• [12] In summary terms, the Applicant refused to comply with the directions of the Commission despite being repeatedly directed to do so. On this basis, the Respondent made an application to dismiss. Accordingly for the reasons set out against the relevant legislative tests and case law outlined above, the Applicant's s.365 application is dismissed pursuant to s.587(3)(b) of the Act for want of prosecution.

[1] [2020] FCAFC 152.

[3] Resta v Myer Pty Ltd [2013] FWC 7080 [32], [39] ('Resta'); Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 at [9].

[5] Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd [2025] FWCFB 40 ('Blackfisch').

[6] Hoser v Hartcher [1999] NSWSC 527 at [20]- [30].

[8] [2024] FWC 1884.

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