s.394 - Unfair dismissal

The trustee for Horner Recruitment Systems Trust

Application under s 399A - failure to comply with directions - application granted

• [1] Richard Sam has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). On 22 May 2025, I issued directions that Mr Sam file an outline of argument, statements of evidence and a document list by 5 June 2025. He failed to do so. On 11 June 2025, I listed the matter for a non-compliance hearing and required the parties to attend it. Later that day, the respondent made an application under s 399A for the Commission to dismiss Mr Sam's unfair dismissal application. I then advised the parties that I would consider the s 399A application at the non-compliance hearing on 13 June 2025. I waived the requirement in the Fair Work Commission Rules that a form F1 be filed.

• [2] On 13 June 2025, shortly before the commencement of the non-compliance hearing, Mr Sam emailed chambers advising that he would not be attending the proceeding because of work commitments. At the hearing, which Mr Sam did not attend, the respondent confirmed that it sought for the Commission to dismiss Mr Sam's unfair dismissal application under s 399A because he had failed to comply with directions issued by the Commission that he file materials.

• [3] After the non-compliance hearing, I caused correspondence to be sent to Mr Sam, in which I directed him to file the materials referred to in my original directions of 22 May 2025 by 16 June 2025 at 4:00 pm. I advised Mr Sam that I would determine the respondent's s 399A application on the papers after 4.00 pm on 16 June 2025 and that if he did not file his materials in accordance with the new deadline, it was likely that his unfair dismissal application would be dismissed. Mr Sam did not reply. He did not file his materials by the new deadline, or provide any other response to the Commission.

• [4] Section 399A states that the Commission may dismiss an unfair dismissal application if it is satisfied that the applicant has unreasonably failed to attend a conference or hearing held by the Commission or has unreasonably failed to comply with a direction of the Commission relating to the application (s 399A(1)(a) and (b)). Mr Sam failed to comply with my original directions of 22 May 2025. He failed to comply with the new deadline that was granted to him. In addition, Mr Sam failed to attend the non-compliance hearing on 13 June 2025 despite being required to do so, however I will confine my consideration of the s 399A application to the failure to comply with directions. Mr Sam has provided no reasonable explanation for twice failing to comply with the Commission's directions to file materials. I conclude that these failures were unreasonable. The discretion in s 399A is enlivened. It is appropriate to exercise it. Mr Sam has failed to engage with his own application. That application is now dismissed.

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