s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Applicant non-compliant with Directions of the Commission - s.399A application - unfair dismissal application dismissed.

• [1] On 26 February 2025, Ms Regan Mier (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Therapy Mental Health Pty Ltd (the Respondent). Ms Mier's employment had been terminated with effect from 29 January 2025.

• [2] Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates provided in the Form F2 application, Ms Mier's application was made outside of the statutory time limit, with it having been made seven days after the expiry of the 21-daytime period allowed for by the Act.

• [3] Consistent with the Commission's usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Mier's application.

• [4] Directions were issued to parties on Monday, 17 March 2025. The Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material she intended to rely on in support of an extension of time by 4.00PM Friday, 21 March 2025.

• [5] No submissions were filed by the Applicant by 4.00PM Friday, 21 March 2025. On 27 March 2025, my Chambers wrote to Ms Mier advising that her application was at risk of being listed for a non-compliance hearing and directing Ms Mier to file her materials by 10:00AM Friday, 28 March 2025.

• [6] After receiving no repose by 10:00AM Friday, 28 March, at 3:31PM that day, my Chambers wrote to Ms Mier again, notifying her that the matter had been listed for Non-Compliance Hearing at 9:30AM on Tuesday, 1 April 2025 and that, if she did not attend the Hearing and explain her non-compliance with the Directions, her application may be dismissed under s.399A of the Fair Work Act.

• [7] The Applicant did not respond to either of the emails sent to her by my Chambers and did not attend the Non-Compliance Hearing on 1 April.

• [8] On 1 April, my Chambers called the Applicant twice at 9:34AM, prior to the beginning of the Non-Compliance Hearing on the phone number she had listed in her Form F2 Application. The Applicant did not answer either call. My Chambers also emailed Ms Mier at 9:51 that morning, requesting that she join the Non-Compliance Hearing and providing the Microsoft Teams link to do so. No response to this email was received by Chambers.

• [9] During the Non-Compliance Hearing the Respondent made a s.399A application.

• [10] After the Non-Compliance Hearing, a further email was sent to the Applicant informing her of the s.399A application made by the Respondent at the Non-Compliance Hearing. The Applicant was directed in this email to file submissions with the Commission and the Respondent as to why the Commission should not dismiss her application, by 4:00PM on Thursday, 3 April 2025. The Applicant did not file any material or make any contact with my Chambers or the Respondent in relation to this direction.

• [11] I now turn to determining the s.399A application.

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

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division4 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 theFWC may dismiss an application."

• [13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act

• [14] As the Applicant did not file any submissions in opposition to the s.399A application, I will determine the application on the papers

• [15] There is no material presently before the Commission that would persuade me that the Applicant has attempted to defend the s.399A application. I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant's application for an unfair dismissal remedy.

• [16] After considering all the material, Ms Mier's application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.[1]

[1] PR786904.

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