s.394 - Unfair dismissal

[1] This matter involves an application made by Mr Rudi Ericksen (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) in the Fair Work Commission (the Commission).

[2] This decision deals with the repeated non-compliance of the Applicant in response to the Commission's directions.

[3] Correspondence was sent to the parties, on 6 January 2026, outlining that the matter was listed for conference on 12 January 2026. This was sent to the Applicant by email. The matter was listed, by video, using Microsoft Teams. The parties were provided with a link to join the conference on the Notice of Listing.

[4] On the morning of 12 January 2026, prior to the commencement of the conference, my associate sent the parties an email. This email, again, contained the link to join the conference and requested that the parties join approximately 10 minutes prior to the commencement time.

[5] The Applicant did not join the conference in the lead up to the commencement time.

[6] Subsequently, my associate sent a further email to the Applicant requesting they urgently join the conference. The Applicant did not join the conference. My associate attempted to contact the Applicant by telephone, with no success.

[7] Finally, I instructed my associate to allow 10 minutes from the intended commencement time of the conference to pass to facilitate the Applicant's attendance. My associate confirmed these instructions, by email, to the Applicant and noted that non-compliance with the Commission's directions could result in the file being closed.

[8] The Applicant did not attend the conference, despite the additional time afforded, and did not contact my Chambers in response to the repeated attempts to reach out.

[9] Shortly after the intended commencement time, the conference was adjourned due to the Applicant's failure to attend.

[10] Following the adjournment of the conference, a letter regarding the non-compliance was sent to the Applicant. This letter warned that the matter could be dismissed in the event of further non-compliance. The letter included a direction for the Applicant to file a response regarding their non-compliance and the potential dismissal of the matter by 9:00AM on 14 January 2026.

[11] At 8:23PM on 13 January 2026, the Applicant sent an email in reply to the non-compliance correspondence, stating that he was attending to a family matter and asking if there was another chance.

[12] Despite the fact that the Applicant's reply lacked the detail or supporting documentation requested in the non-compliance correspondence, affording him the benefit of the doubt, I advised that the matter be relisted for conference to afford the Applicant another opportunity to advance his matter.

[13] A Notice of Listing was issued on 14 January 2026, for a conference on 19 January 2026 via Microsoft Teams.

[14] Unfortunately, the events that led up to this second conference mirror that of the first. My associate issued a reminder email with links prior to commencement, a further email prompt for the Applicant to join, attempted to contact him by telephone, and finally afforded him a further 5 minutes past the intended commencement time to join. The Applicant did not join or reply to these attempts at contact.

[15] A final notice of non-compliance was then issued to the Applicant. This final notice required the Applicant to comply by 10:00AM on 20 January 2026 and highlighted that the file would be closed if my Chambers did not receive adequate response. No response was received by the Applicant in compliance with this direction.

[16] As of the date and time of this Decision, no further communication from the Applicant has been received.

[17] Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[18] Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act.

[19] Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative.

[20] Section 587(3) of the Act reads 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

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(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:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application."

[21] In this case, the Applicant has failed to comply with the Commission's directions on several occasions and was on notice that repeated non-compliance would be grounds for the application to be dismissed.

[22] The Applicant has been provided several opportunities to comply and has been repeatedly reminded of the requirement to comply and the risks to their application if they did not.

[23] The Commission has afforded the Applicant several opportunities to advance their application, despite the repeated non-compliance. The Applicant has repeatedly failed to comply with the directions of the Commission.

[24] The Applicant never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.

[25] The Applicant did not inform my Chambers that the listing times were unsuitable or seek to explain further why their attendance had been prevented. Had he done so, this could have been considered. However, without communication there is little for the Commission to do if, by all appearances, an Applicant will not pursue their application.

[26] Given the above regrettable circumstances, I exercise my powers under section 587of the Act to dismiss this application on the initiative of the Commission.

• [27] An Order to this effect will be issued in conjunction with this decision. [1]

[1] [PR795986].

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