s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - Applicant failed to respond to Chambers - failure to comply with Directions - failure to progress application - application dismissed for want of prosecution.

• [1] Mr (Bradley) Robert Denton (the Applicant) made an unfair dismissal application (to the Fair Work Commission (the Commission)) pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Denton stated that he had been dismissed from his employment with NT Recycling Solutions (the Respondent).

• [2] The Respondent submitted a jurisdictional objection to the Applicant's s.394 application stating that the Applicant's prior employment did not meet the minimum employment period. The Respondent, at the time of the Applicant's dismissal, employed 52 employees.

• [3] The matter was then allocated to my Chambers. Parties gave differing dates for the commencement of the Applicant's employment, in particular the Applicant on his Form F2 unfair dismissal application form had crossed out a date and written 19 February 2024. The other date, provided by the Respondent on the Form F3 Employer response to unfair dismissal application form, was 27 January 2025. Given the differing commencement dates filed by parties, the parties were Directed to confirm the date of commencement of employment of the Applicant with any information that supported this, and consequently whether they considered the employment period met the minimum employment period.

• [4] The Respondent submitted that the Applicant's commencement date was 27 January 2025 and submitted the Applicant's employment contract as evidence of such. This contract displayed that the Applicant was employed as a casual Yard Hand for the Respondent, effective from 27 January 2025. The contract was signed by the Applicant on 21 January 2025.

• [5] The Applicant failed to respond to the inquiries from Chambers in regard to this matter. Correspondence was then sent to the Applicant regarding his non-compliance with the Directions and requiring him to provide the abovementioned information in regard to his commencement date with the Respondent. He did not do so.

• [6] Final correspondence was then sent to the Applicant stating that he had failed to respond to Chambers and that he was required to provide the information relevant to the jurisdictional objection to Chambers, and that if he did not do so, the Commission would consider dismissing his matter for want of prosecution. The Applicant did not respond to Chambers.

• [7] Section 587 of the Act is as follows:

(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

(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 399A.

(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:

• [8] In relation to the general power to dismiss an application under s.587(1), it is considered that this should be used sparingly and approached with caution.[1] As per the decision of Resta v Myer Ptd Ltd:[2]

"[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 'the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion'."

• [9] Further a recent Full Bench of the Commission in Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd,[3] referred to the relevant application of the principles from the case of Hoser v Hartcher,[4] in emphasising that a Member must weigh the impact of a decision to dismiss an application on each party:

"[33] The exercise of a discretion by a member of the Commission to summarily dispose of proceedings on grounds of want of prosecution, under s 399A in the case of unfair dismissal proceedings or otherwise, involves a balancing exercise in which a variety of factors are to be considered. Considerations such as those set out by Simpson J in Hoser v Hartcher are likely to be relevant. The ultimate question is whether, having balanced the prejudice to each party, justice demands that the application be dismissed. That assessment must also be undertaken taking into account the obligations of the Commission under s 577(1) of the Act and the impact of any non-compliance with directions on the operations of the Commission more broadly." (Emphasis added).

• [10] The relevant matters have been weighed in the context of this matter.

• [11] In May v City of Gosnells,[5] which is a matter whereby the Applicant failed to respond to the Commission despite various attempts to contact him, the Commission referred to the use of s.587(3)(a) to dismiss the matter as follows:

"[7] Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words "without limiting when FWC may dismiss an application" in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] If an applicant's conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

[9] In these circumstances I am satisfied that the facility under s.587 can and should be

[10] Mr May has also been on notice of the likely consequences for his application if he did not respond to the Commission's inquiry and it is quite possible that he has abandoned his application.

[11] For these reasons I have decided to dismiss Mr May's application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act."[6]

• [12] As detailed above, Mr Denton has failed to communicate with Chambers in any manner despite various attempts to contact him. It is emphasised that at all times the attempts to contact the Applicant were made using the email address that the Applicant submitted on lodgement of his application. Accordingly, for the reasons set out against the relevant legislative tests and case law outlined above, the Applicant's s.394 application is dismissed pursuant to s.587(3)(a) of the Act for want of prosecution.

[1] Resta v Myer Pty Ltd [2013] FWC 7080 at [32], [39 ('Resta')]; Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 at [9].

[3] Mathrew Priestley and Mika Tyson v Blackfisch Films Pty Ltd [2025] FWCFB 40.

[4] Hoser v Hartcher [1999] NSWSC 527 at [20]- [30].

[5] [2024] FWC 1884.

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