s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s.587

• [1] On 8 April 2025, Ms Rose Collins (the Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in the Fair Work Commission (Commission).

• [2] The Applicant commenced employment with Findex (Aust) Pty Ltd (the Respondent) on 13 March 2024, and it is not disputed that she was dismissed on 12 February 2025. The Applicant alleges she was unfairly dismissed from her employment with the Respondent.

• [3] This matter was allocated to me on 12 May 2025 for case management. On 13 May 2025, the parties were sent a copy of directions for filing of submissions. The Applicant was directed to file her submissions by 4pm on 23 May 2025. The document included the following notes:

Note: Failure to comply with directions or to attend proceedings may result in the Fair Work Commission (the Commission) proceeding to determine the matter in your absence and based on the material before the Commission...

... Non-compliance: The Commissioner will not accept material that is filed late unless an extension has been granted by the Commissioner before it was due. Requests for an extension of time must be made in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

• [4] On 14 May 2025, both parties attended a mention/conference and the Applicant advised that she was considering withdrawing her application and would notify Chambers about the status of her application by 4pm on 21 May 2025.

• [5] The Applicant did not file her submissions and evidence by the deadline of 23 May 2025, nor did she advise Chambers on the status of her application. Chambers attempted to contact the Applicant by telephone on four different occasions between 26 and 27 May 2025, but all calls were diverted to voicemail.

• [6] On 28 May 2025, Chambers emailed the Applicant advising that non-compliance with the directions may lead to dismissal of the application pursuant to s.587 of the Act, and requested she update the Commission on the status of her application and file her submissions by 12pm on 30 May 2025:

... Non-compliance with this direction has the potential to impact on continuation of the proceedings. Your attention is drawn to section 587 of the Fair Work Act 2009 (Cth) (the Act). Your urgent response to your apparent failure to comply with the directions is required by no later than 12pm on Friday 30 May 2025...

... Note: Failure to comply with this communication, directions, or attend proceedings may result in the Commission proceeding to determine the matter in your absence, including dismissal of the application pursuant to s.587 of the Act, and based on the material before the Commission.

• [7] The Applicant did not respond to the request at [6]. On 2 June 2025, Chambers sent an email to the Applicant reiterating the requirement to file submissions and evidence, drawing her attention to s.587 of the Act, advising that non-compliance with the directions has the potential to impact on the continuation of proceedings and directing the Applicant to seek leave to file her materials outside the deadline and to provide an explanation for her non-compliance. A response to the email was sought by 4pm on 2 June 2025. The email noted that failure to comply with the correspondence or directions may result in the Commission proceeding to determine the matter in her absence, and this includes dismissal. With no response from the Applicant, later that day Chambers again attempted to contact the Applicant by telephone, with the call again diverted to voicemail.

• [8] Again, the Applicant again did not contact Chambers by the deadline. At the time of writing, the Applicant has not filed any material, provided an update about her application, or otherwise contacted the Fair work Commission.

• [9] Section 587 of the Act provides:

(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 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[7] I consider that as the Applicant has failed to prosecute her application, her application has no reasonable prospects of success. In the circumstances, the appropriate course is to dismiss the application for want of prosecution under s.587 of the Act. The application is dismissed.

Printed by authority of the Commonwealth Government Printer