s.394 - Unfair dismissal

Application for an unfair dismissal remedy - matter dismissed under s. 587 at the initiative of the Commission

[1] On 7 October 2025, Mr Rob Blackwood (the applicant) filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act), a provision which is contained in Part 3-2 of the Act.

[2] The respondent to the application is the Department of Defence. The respondent raised two jurisdictional objections being that the applicant was not dismissed and that the application was filed out of time.

[3] On 27 November 2025, the Commission listed a Determinative Conference on the issue of whether the Applicant should be granted an extension of time to file his application. That Determinative Conference was listed for 10am on Tuesday, 23 December 2025 by Microsoft Teams. Shortly after the Commission sent the Notice of Listing, the applicant responded with a brief outline of the current status of the matter from his perspective.

[4] On 27 November 2025, the respondent wrote to the Commission to request an adjournment of the Determinative Conference listed for 23 December 2025 due to the unavailability of key participants.

[5] On 4 December 2025, the Commission issued a revised Notice of Listing advising that Determinative Conference was relisted to 9:30am on Friday, 19 December 2025.

[6] On 18 December 2025, the Commission wrote to the parties seeking confirmation of the appearances for the Determinative Conference the following day. The respondent confirmed their appearance, however the applicant did not.

[7] On 19 December 2025, the applicant did not attend the Determinative Conference. Two of the respondent's employees were in attendance for the Conference. The Commission phoned the applicant at 9:31am and again at 9:40am but was unable to reach him and left a voicemail on both occasions. The Commission sent an email to the applicant at 9:35am requesting that he join the Determinative Conference as soon as possible or contact my chambers to advise of any technical difficulties. The applicant did not respond to any of these communications.

[8] At 10:36am on 19 December 2025, the Commission wrote to the parties noting that the applicant had not attended the Determinative Conference at the listed time and relisted the matter for 3:00pm on Tuesday, 3 February 2026 by Microsoft Teams. This email stated that the applicant was required to attend on the relisted date and that if he did not attend, the matter may be dealt with in his absence.

[9] On 13 January 2026, the applicant sent an email to the Commission's lodgement email address and copied to the respondent. The covering email stated "Updated incapacity certificate attached, please process paid miscellaneous leave pending Fairwork (sic) investigation". The certificate of capacity indicated that the applicant did not have capacity for employment between 7 January 2026 and 3 February 2026, identified the applicant's clinical diagnosis and set out a capacity assessment of the applicant. The capacity assessment recorded that the applicant's "Attention/Concentration" was "Affected" but that both his "Memory (short and long term)" and "Judgement (ability to make decisions)" were "Not Affected".

[10] On 2 February 2026, the Commission sent an email to the parties seeking to confirm their appearances for the Determinative Conference listed for the following day. The respondent provided their appearances, but the applicant did not respond to this correspondence.

[11] On 3 February 2026, the Commission attempted to phone the applicant at 11:51am and 2:59pm seeking to confirm his attendance at the listed Determinative Conference. Both times, the applicant did not answer and a voicemail was left. The Commission also sent a follow up email to the Applicant at 11:54am advising him that the matter would proceed as listed at 3pm on that day and a second follow up email at 3:01pm requesting that he join the Determinative Conference within the next five minutes or the Conference may proceed in his absence.

[12] On 3 February 2026, the applicant failed to attend the relisted Determinative Conference. Once again, two of the respondent's employees were in attendance for the Conference.

[13] Later on 3 February 2026, the Commission emailed the applicant putting him on notice that the Commission on its own initiative was considering dismissing his application under s 587(1) on the grounds that his application has no reasonable prospect of success in circumstances where he had failed to attend listings at the Commission indicating that he did not intend to participate in the Commission process to deal with the application. The email from the Commission further referred to the applicant's failure to attend the two listed Determinative Conferences, failure to respond to phone contact from the Commission that day and failure to explain his non-attendance at the two Determinative Conferences. The Commission issued a direction for the parties to file and serve submissions in respect of whether the matter should be dismissed by the Commission under s 587(1)(c) by 17 February 2026.

[14] On 5 February 2026, the applicant sent an email to a general HR email address of respondent which he copied to the Commission. The email attached a certificate of capacity and stated, amongst other things, "updated incapacity certificate for ongoing paid leave pending Fairwork investigation" and further "Email response or SMS always appreciated". The certificate of capacity indicated that the applicant did not have capacity for employment from 4 February 2026 to 3 March 2026, identified the applicant's clinical diagnosis and set out a capacity assessment of the applicant. The capacity assessment recorded that the applicant's "Attention/Concentration" was "Affected" but that both his "Memory (short and long term)" and "Judgement (ability to make decisions)" were "Not Affected".

[15] On 5 February 2026, the Commission emailed the applicant seeking, amongst other things, his response to the Commission's email of 3 February 2026 a further copy of which was attached.

[16] The applicant did not send any submission to the Commission in response to the Commission's email and direction issued on 3 February 2026 or the further email to him from the Commission of 5 February 2026.

[17] On 17 February 2026, the respondent sent an email to the Commission making submissions to the effect that the Commission should dismiss the application as it had no reasonable prospects of success on the basis that the applicant has failed to attend two listed Determinative Conferences, had not responded to multiple attempts by the Commission to confirm his attendance at the conferences and had failed to provide an explanation for his non-attendance. The email referred to the matter taking up time and resources, an observation evidently inclusive of the time and resources wasted by employees of the respondent arising from the applicant's failure to appear at the two listed Determinative Conferences.

[18] Section 587 of the Act confers power on the Commission to dismiss an application made under the Act including an unfair dismissal application made under part 3-2 of the Act. Section 587 is in the following terms.

(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

(b) the application is frivolous or vexatious; 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

(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:

[19] I am satisfied that the applicant does not intend to participate in the process before the Commission in respect of his application.

[20] In reaching this view, I have had regard to the fact that applicant has failed to attend two listed Determinative Conferences, has failed to respond to several enquiries from the Commission regarding his non-attendance (as set out above), has not engaged in responsive communications with the Commission since 27 November 2025 and has not provided a direct explanation for his failure to engage in the process. I have also had regard to the applicant's emails of 13 January 2026 and 5 February 2026 and the full terms of the attached certificates of capacity including that the applicant was certified as having no capacity for employment, the diagnosis noted in the certificate and the terms of the capacity assessment. In particular, I note that the capacity assessment in both certificates indicate that the applicant's memory and judgement was not affected by his injury or condition. Furthermore, the fact and terms of applicant's emails of 13 January 2026 and 5 February 2026 indicate that the applicant is contactable by email. I have also had regard to the reference in those two emails, to "pending Fairwork investigation". However, this is not sufficient to dissuade me from concluding that, in all of the circumstances, the applicant does not intend to participate and pursue his application in the Commission.

[21] Given that I am satisfied that the applicant does not intend to participate and pursue his application in the Commission, I conclude that the application has no reasonable prospects of success.

• [22] I am mindful that the power of the Commission to dismiss an application should be exercised sparingly and with caution. However, as was observed by a Full Bench of the Commission in Viavattene v Health Care Australia[1] at [39]:

there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.

[23] I am satisfied that it is appropriate to exercise my discretion to dismiss the application. In exercising my discretion to do so, I have had regard to the full terms of the certificate of capacity and the covering emails including the particular matters set out in paragraph [20] above. In the exercise of my discretion, I have had regard to s 577 which provides that the Commission perform its functions and exercise its powers in a manner that is fair and just and is quick and informal and avoids unnecessary technicalities. I have also had regard of the provision in s 381 of the Act that the manner of deciding and working out remedies under Part 3-2 of the Act are intended to ensure that a "fair go all round" is accorded to the employer and employee concerned. I consider that the applicant has been accorded a "fair go all round" to present and pursue his case by engaging with the process of the Commission. In applying the matters set out under s 577 and the principle of a "fair go all round" in s 381, I have also had regard to the principles of effective case management of applications made under Part 3-2. The conduct of the matter to date has had two of the respondent's employees attending the two listed Determinative Conferences which did not substantively proceed because of the failure of the applicant to appear, thereby involving a waste of the respondent's time and resources. In circumstances where I am satisfied that the applicant does not intend to participate and pursue his application in the Commission, I am also satisfied that any further conduct of the matter will involve a further waste of the time and resources of the respondent.

[24] I am satisfied that the application should be dismissed under s 587(1)(c). I order that the application be dismissed.

[1] Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]

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