s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - Applicant failed to respond to any Commission contact since lodgement - failure to attend conferences - failure to progress application - application dismissed for want of prosecution.

• [1] Mr Ryan Hawkins (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 Hawkins stated that he had been dismissed from his employment with Eastern States Framing (the Respondent).

• [2] The Commission's file on this matter reflected that the matter was listed for conference before a conciliator to occur on 6 March 2025 with an SMS reminder sent to the Applicant the day prior. Both parties were telephoned three times and voicemails were left, however both parties did not respond or attend and therefore the telephone conciliation could not proceed.

• [3] The matter was then allocated to my Chambers. On 18 March 2025, a Notice of Listing was sent to the parties to attend a mention/conference (by way of a Teams Link) to be conducted on 28 March 2025. The Parties did not comply with the direction to confirm their attendance prior to the conference and therefore an email was sent on 26 March 2025 directing the parties to urgently confirm their attendance. The Respondent called that afternoon to confirm attendance. The Applicant was called near to 4pm on 26 March 2025 and a voicemail was left requiring him to urgently confirm attendance by contacting Chambers either by email or by phone. The Applicant did not contact Chambers.

• [4] On 28 March 2025, the Respondent attended the conference. During the scheduled conference time, the Applicant was again emailed and directed to contact Chambers on an urgent basis to attend the conference. Three attempts were made to telephone the Applicant (on the phone number he had recorded on his application) to connect him into the conference, the Applicant failed to pick up the phone on any of the calls. A voicemail was left after the first call. As such, the conference could not proceed.

• [5] Later on 28 March 2025, the Applicant was emailed stating that he had failed to attend the conference and had failed to contact Chambers, and as such the Commission was considering dismissing his matter for want of prosecution and therefore, he needed to urgently contact Chambers by the end of that day to respond. It was stated that the Respondent did attend the conference as scheduled. The Applicant did not contact Chambers.

• [6] Following the conference further attempts were made to contact the applicant; three calls were made to the Applicant; he did not pick up. A voicemail was left reiterating that he had not contacted Chambers and that the Commission was considering dismissing his matter for want of prosecution as he had not progressed his unfair dismissal application. It was set out that he had failed to attend the scheduled conference, and that he was to urgently contact Chambers by close of business the next day. An email was sent after this from Chambers to the Applicant reiterating the contents of the voicemail as detailed above. The Applicant failed to contact Chambers in any way.

• [7] The Applicant was given a final further opportunity to give any explanation or reason for his consistent non-compliance. It was stated that in the absence of any response, that the Commission would make a decision on dismissing his application for want of prosecution. The Applicant did not respond.

• [8] 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:

• [9] 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'." (Emphasis added).

• [10] 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).

• [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 Hawkins has failed to communicate with the Commission in any manner since the lodgement of his application despite various attempts to contact him including via email and by phone. It is emphasised that, at all times the attempts to contact the Applicant were made using the email address and phone number that he submitted on lodgement of his application.

• [13] In summary terms, the Applicant failed to attend the two conferences, and failed to communicate with the Commission after various attempts were made to contact him (including failing to provide a reason for his non-attendance). 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.

• [14] A separate Order has been made to this effect (PR787260).

[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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