s.394 - Unfair dismissal

Unfair dismissal application - Respondent failed to comply with directions - Respondent failed to file any materials - evidence wholly uncontested - Respondent referred to GM - merits only - Applicant unfairly dismissed

[1] Mr Nils Lampert (Applicant) has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). The Applicant was employed by Barefoot Palmy Pty Ltd (Respondent) as a chef commencing on 20 January 2025.

[2] This published decision reflects the decision I gave orally at the hearing on 26 February 2026 with corrections for grammatical, syntactical such errors and more fulsome details including the law and the history of the Commission's attempts to contact the Respondent.

[3] The Respondent was initially served a copy of the application by email and asked to attend a conciliation conference on 18 November 2025. The Respondent failed to attend.

[4] On 5 December 2025, the Respondent was directed to provide a Form F3 in response by 10 December 2025, however the Respondent never did.

[5] On 23 December 2025, the matter was allocated to my Chambers, and an SMS text message was sent to the mobile phone of Ms Elizabeth Ennis, the owner of the Respondent company, notifying her of that.

[6] On 15 January 2026, directions were issued to parties by email, listing the matter for a preliminary conference on 21 January 2026 and for a determinative conference/hearing on 26 February 2026 together with directions for the filing of materials. There were two different emails that were both sent this correspondence. There was a bounce back email received from one of the Respondent's email addresses but not the other. The email that bounced was rechecked and resent to the corrected email address a short time later. No bounce back was received from that email address. The Applicant confirmed receipt of this correspondence.

[7] On 16 January 2026, a notice of listing was sent to the parties by email providing further details for the preliminary conference on 21 January 2026. No bounce backs were received.

[8] On 21 January 2026, Chambers emailed the parties requesting details of who would be appearing on behalf of them. Chambers also made three (3) attempts to call the mobile phone of Ms Ennis of the Respondent. There was no answer. Chambers then emailed the Respondent's two email addresses again, copying the Applicant noting the Respondent's failure to comply with the Commission's directions by failing to file a Form F3 by 4pm on 20 January 2026 and failure to attend the preliminary conference on that same day. The Respondent was again directed to file a Form F3 by 4pm on 22 January 2026 and reminded the Respondent that they were due to file their material by 28 January 2026. The Respondent was put on notice that:

"In the absence of any material filed by you, this matter may be determined without further reference to you. Should a decision on the matter be made in the Applicant's favour, the Deputy President's findings will be made available in a published decision on the Commission's website and orders may be made against you which will be enforceable by a court."

[9] The Respondent failed again to file a Form F3.

[10] On 27 January 2026, I caused a company search of the Respondent to be conducted. That search identified:

1. Mr David De Closey at the Registered Office of the Respondent;
2. the Principal Place of Business of the Respondent;
3. the contact address (a PO Box) for ASIC purposes of the Respondent;
4. Ms Ennis as the Sole Director of the Respondent.

[11] On 30 January 2026, I caused registered letters to be sent to each of Mr David De Closey, The Proper Officer at the Registered Office of the Respondent, Ms Ennis at the Principal Place of Business of the Respondent and Ms Ennis at the ASIC Contact Address of the Respondent.

[12] The three registered letters were identical and they read:

Re: U2025/15827 - Mr Nils Lampert v Barefoot Palmy Pty Ltd

An Unfair Dismissal application has been instigated against BP by Mr Nils Lampert pursuant to s.394 of the Fair Work Act 2009 (Cth). Deputy President Dobson has carriage of your matter and all correspondence in relation to it should be directed to her at chambers.dobson.dp@fwc.gov.au.

Barefoot Palmy Pty Ltd (BP) are required by law to comply with the directions of the Fair Work Commission.

The Fair Work Commission has written to BP by email; however, we have received no response.

Please see enclosed documents relating to [sic] this application before the Fair Work Commission, including:

• an email to all parties in the matter dated 15 January 2026, to which the Commission attached directions and a Digital Court Book (DCB);
• a notice of listing issued on 16 January 2026;
• an email to all parties in the matter dated 21 January 2026 seeking confirmation of the parties' participants for the preliminary conference listed to commence at 2:00pm (AEST) on 21 January 2026; and
• an email to the Respondent in this matter, copying in all parties, dated 21 January 2026, seeking a Form F3 - Employer response to unfair dismissal application from the Respondent, as well as an explanation for the Respondent's apparent failure to comply with the directions.

Please urgently comply with the directions and also provide an email address for future communications. There are penalties for failing to comply with directions of the Fair Work Commission.

Additionally, if you fail to respond, orders made be made that are adverse to your interests and enforceable by the Courts.

You can contact Chambers at chambers.dobson.dp@fwc.gov.au if you have any questions."

[13] The letter to Mr de Closey and the first of two letters to Ms Ennis were delivered on 2 February 2026. The letter sent to Ms Ennis at the workplace was returned to sender on 27 February 2026. I am satisfied that the letter was however successfully delivered to the Proper Officer in accordance with the Corporations Act for service. The fact it was also successfully delivered to the address for ASIC service is an added bonus.

[14] Neither Ms Ennis nor any representative of the Respondent attempted to contact my Chambers to seek an adjournment or make any enquiries. Further, they did not file any material, submissions, evidence or responses to submission or evidence in accordance with those directions and neither did they attend any of the conciliations, preliminary conference or indeed the final hearing of the matter.. The Commission's correspondence was sent by email to two different email addresses of the Respondent, to the sole Director of the Respondent's mobile phone, to the Proper Officer of the Registered office in accordance with the Corporations Act 2001 (Cth) for service and by registered mail to the Respondent's registered ASIC contact PO Box address and finally to the Respondent Sole Director, Ms Ennis at the principal place of work of the Respondent. I find that the Respondent was afforded every opportunity to participate in the unfair dismissal process, to defend their position and put forward their case; however, they chose not to do so.

[15] As a consequence, it is clear that the Respondent has had no regard to it's obligations under the Fair Work Act 2009 (Cth) and no respect for the directions of the Fair Work Commission. It is not the case that such blatant disregard for the law can be simply ignored. It is appropriate in all the circumstances that I ask the General Manager of the Fair Work Commission to refer this mater to the relevant agencies of the Commonwealth for appropriate action.

[16] At the beginning of the hearing, the evidence of the Applicant was admitted. There being no response or attendance by the Respondent, that evidence was uncontested.

• [17] It is therefore uncontested and I find that on 25 - 28 September 2024 the Applicant took leave.[1] On the last day of that leave the Applicant noticed he had not received any shifts.[2] The Applicant assumed it was a mistake and attempted to contact his supervisors but without answer.[3]

• [18] On 30 September 2026, the Applicant "took it upon [himself] to find out what was going on and went to the Barefoot branch in Palm Beach in hopes of being able to speak to the Head Chef who was responsible for the kitchen's schedule". Instead, the Applicant met the owner, Ms Ennis, who he approached and asked if she had received his messaged and calls. Ms Ennis denied receiving those calls and stated that she had changed her phone number. The Applicant gave evidence, which I accept, that Ms Ennis had been corresponding with other staff on the same day from the same number. On that basis, the Applicant concluded Ms Ennis has been untruthful to him. The Applicant directly asked Ms Ennis if he had been dismissed. Ms Ennis denied that the Applicant had been dismissed and explained that "the business isn't performing" and that all staff are to expect reduced hours in the coming weeks.[4]

• [19] Later that same day, the Applicant noted that he was removed from Deputy (the rostering app). Following that discovery, the Applicant contacted a supervisor to confirm whether he had been dismissed, again without receiving a response.[5]

• [20] The following day, 1 October 2026, the Applicant rang and spoke to another manager at the Respondent company who made some enquiries and advised the Applicant that everything seems to point towards the Applicant's dismissal but that they were not allowed to give any further information.[6] Later that day, the Applicant noticed he had also been removed from the work group chat.[7]

• [21] On the evidence before me, I find that the Applicant was dismissed from his employment on 30 September 2026[8] at the initiative of his employer.[9] The Applicant filed this application on 1 October 2026.[10] I am satisfied that the Applicant filed his application on time.[11] There is no evidence before the Commission that the Respondent was a small business.[12] I am satisfied that the Applicant commenced his employment with the Respondent on 20 January 2025 and, therefore, that he had served his minimum employment period.[13] There is no evidence before the Commission to suggest that the Applicant was paid over the high income threshold.[14] I am satisfied that the Applicant was protected from unfair dismissal[15] that the Applicant's dismissal was not inconsistent with the Small Business Fair Dismissal Code[16] and that the Applicant's dismissal was not a case of genuine redundancy.[17]

[22] The Commission must now proceed to consider the merits of the application and decide whether that dismissal was harsh, unjust or unreasonable, taking account of the matters in s.387 of the Act.

• [23] The Applicant contends that following a period of leave his employment was terminated. There is no evidence of any reason for the employment ending and I conclude that there was no valid reason for dismissal related to either the capacity or conduct of the Applicant.[18] I am satisfied that the Applicant was not notified of any reason.[19]

• [24] I find that the Applicant was not given any opportunity to respond to any reason related to their capacity or conduct.[20] In respect of any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal, I find that this is not applicable in circumstances where there were no discussions in relation to the dismissal.[21] There is no evidence before the Commission and I so find that the dismissal did not relate to any unsatisfactory performance by the Applicant.[22]

• [25] There is no evidence before me in respect of the size of the Respondent's enterprise and any likely impact that might have had on the procedures followed in effecting the dismissal,[23] nor was there any evidence before me as to whether there was any absence of dedicated human resources management specialists or expertise at the Respondent.[24]

• [26] In respect of whether there were any other matters relevant to the dismissal[25] I find that the Respondent's complete failure to engage with the Applicant about his employment coming to an end is cowardly and disrespectful. The deliberate refusal of Ms Ennis to even communicate with the Applicant, choosing instead to be deceitful about changing her phone number in order to avoid having to respond to the Applicant's reasonable questions is demonstrative of a complete lack of respect for those who toil in her business. Ms Ennis conduct toward the Applicant was disgraceful. The fact she also treated the Fair Work Commission the same way only reinforces how little respect she has for others and for the law. I have little doubt that other employees at the Respondent who observed the way Ms Ennis handled this situation, will be wondering when they will be treated the same way.

[27] In consideration of all the circumstances, I find that the dismissal was harsh, unjust and unreasonable because there was no reason, no communication of that reason and it was handled in the most appalling and egregious of ways.

[28] I reserved my decision in respect of remedy.

[8] Fair Work Act 2009 (Cth) s.390.

[9] Ibid s.386.

[11] Fair Work Act 2009 (Cth) s.396(a).

[12] Ibid s.23.

[13] Ibid s.382(a).

[14] Ibid s.382(b)(iii)

[15] Ibid s.396(b).

[16] Ibid s.385(c).

[17] Ibid s.396(d).

[18] Ibid s.387(a).

[19] Ibid s.387(b).

[20] Ibid s.387(c).

[21] Ibid s.387(d).

[22] Ibid s.387(e).

[23] Ibid s.387(f).

[24] Ibid s.387(g).

[25] Ibid s.387(h).

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