Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Application dismissed pursuant to s.399A of the Fair Work Act 2009.

• [1] On 4 April 2025, Mr Ozgur Gulen made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is the Australian Postal Corporation (the Respondent).

• [2] In his Form F2 - Unfair Dismissal Application (Form F2), Mr Gulen provided a mobile phone number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Gulen received a response that it was "undeliverable".

• [3] The matter was allocated to me and on 30 July 2025 I made Directions that were sent by email to the parties that day, including to Mr Gulen's nominated email address. I also caused a Notice of Listing to be sent to the parties on 30 July 2025. This detailed that a determinative conference/hearing would be held at the Commission at 10am on Monday 25 August 2025 for the purpose of determining whether an extension of time for the making of the application was necessary and should be granted.

• [4] My Directions dated 30 July 2025 outlined the timeline for the filing and service of material ahead of the determinative conference/hearing. In particular, Mr Gulen was directed to file and serve his Outline of Argument, Statement(s) of Evidence and Document List, by no later than 3:00pm on Wednesday 13 August 2025.

• [5] Mr Gulen did not file material in accordance with the Directions and at 4.15pm on 18 August 2025, my Chambers received an email from the Respondent. This email copied in Mr Gulen and outlined that the Respondent had not been served with Mr Gulen's materials. With this correspondence, the Respondent attached an email it had sent to Mr Gulen on 15 August 2025.

• [6] The 15 August 2025 email sought confirmation from Mr Gulen by 4.00pm on 18 August 2025 as to whether he still intended to file and serve his materials or whether he no longer intended to seek an extension of time for his unfair dismissal application. The Respondent also foreshadowed in that email that if it did not hear from Mr Gulen, it would seek to have his unfair dismissal application "discontinued on the basis that the Directions have not been complied with." As it received no response to that correspondence, the Respondent outlined the following in its email to my Chambers dated 18 August 2025:

"In light of the Applicant's failure to comply with the Directions and the absence of a response indicating he wishes to prosecute his case, APC respectfully asks that the Commission exercises its discretion to discontinue the matter, pursuant to section 399A(b) of the Fair Work Act 2009 (Cth), which provides that the Commission may dismiss an application if the applicant has unreasonably failed to comply with a direction or order of the Commission."

• [7] In response, I caused an email to be sent to Mr Gulen at 4.59pm on 18 August 2025, which outlined the following:

"I refer to the above matter and the email below from the Respondent, Australian Postal Corporation, which is an application to have your matter dismissed for non compliance with the Directions of Deputy President Clancy dated 30 July 2025.

It is noted that no material has been filed by you in support of your application for an extension of time.

Can you please confirm by 5.00PM tomorrow, Tuesday 19 August 2025 whether you intend to file any written submissions, and whether you intend to attend the hearing which is listed to commence at 10.00am on Monday 25 August 2025 at the Fair Work Commission, 11 Exhibition Street, Melbourne."

• [8] There was no response to this correspondence but on Friday 22 August 2025, I caused a further email to be sent to the parties, which outlined:

"Deputy President Clancy advises that the hearing in this matter (U2025/4166) will proceed, as listed, at 10am on Monday 25 August 2025 at the Fair Work Commission - 11 Exhibition Street Melbourne.

At this time Australia Post may address the application it seeks to make pursuant to s.399A of the Fair Work Act 2009 (the Act) and should note that the Deputy President will also be asking Mr Gulen to address it, together with the question of whether the Commission is required to, and/or should, grant him an extension of time to make his unfair dismissal application.

Both Australia Post and Mr Gulen are required to attend the hearing and should note that s.600 of the Act outlines that the Commission may determine a matter before it in the absence of a person who has been required to attend."

• [9] Mr Gulen did not attend the determinative conference/hearing on 25 August 2025. Ms Chloe Mo appeared for the Respondent and confirmed that the Respondent maintained its application that seeking to have Mr Gulen's unfair dismissal application dismissed (s.399A application).

• [10] Section 399A of the Act provides as follows:

(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.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

• [11] Mr Gulen did not file any material in opposition to the s.399A application and nor did he attend the determinative conference/hearing, despite my notification that he was required to do so. Section 600 of the Act provides that the Commission may determine a matter before it in the absence of a person who has been required to attend. In these circumstances, I will determine the s.399A application in Mr Gulen's absence.

• [12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. I confirm the Commission has at all times used the email address nominated by Mr Gulen in its attempts to contact him. Mr Gulen has had the opportunity to engage with the Commission's processes during this time but has failed to progress the prosecution of his case. Mr Gulen has not responded to any of the attempts to contact him since the matter has been allocated to me. Nor has he provided an explanation to the Commission for his continued failure to comply with either the 30 July 2025 Directions or the s.399A application. In addition, Mr Gulen has at no stage advised that he was incapable of attending the determinative conference/hearing on 25 August 2025.

• [13] In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss Mr Gulen' unfair dismissal application. Firstly, I am satisfied Mr Gulen has unreasonably failed to comply with both my direction to respond to the s.399A application and my 30 July 2025 Directions, which required that he file and serve his material for the determinative conference/hearing. Secondly, I am satisfied that Mr Gulen unreasonably failed to attend the determinative conference/hearing on 25 August 2025. Mr Gulen was advised of the determinative conference/hearing in advance via the contact details he had provided to the Commission and yet he made no response to the Commission's correspondence regarding it. The commencement of the determinative conference/hearing was postponed for 30 minutes in the event that Mr Gulen was running late or contacted my Chambers with an explanation for his inability to attend. There has at no stage been any response to Commission communications from Mr Gulen outlining that he was not able to either attend the Commission determinative conference/hearing or comply with my directions and requirements. This persuades me that this is a case in which it is appropriate to exercise the discretionary power in s.399A.

• [14] My determination to exercise my discretion and dismiss Mr Gulen' unfair dismissal application pursuant to s.399A brings it to an end. An Order[1] to this effect will be issued with this Decision.

[1] PR791006.

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