Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] Sadie Wilson (the Applicant) was employed by CPL (the Respondent) from 16 March 2021 to her dismissal on 6 June 2025. The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 29 June 2025 (the Application).

• [2] On 25 August 2025, my Chambers issued a Notice of Listing with Final Directions for a Hearing of the Out of Time jurisdictional objection only, for 24 September 2025. The notice of listing contained final directions for the filing and materials in this matter. The Directions were as follows:

[1] By no later than 4:00PM on 1 September 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

• Whether the Applicant first became aware of the dismissal after it had taken effect;

• If there is any prejudice to the employer (including prejudice caused by the delay);

• Fairness as between the Applicant and any other persons in a similar position.

[2] By no later than 4:00PM on 8 September 2025 the Respondent is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.

[3] By no later than 4:00PM on 15 September 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.

Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

• [3] On 2 September 2025, my Chambers issued the following email regarding the Applicants non-compliance with the Directions:

I note the Applicant has not complied with Direction [1] of the Commission's Directions issued on 25 August 2025 (Listing Directions). Please see below Direction:

[1] By no later than 4:00PM on 1 September 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

· Whether the Applicant first became aware of the dismissal after it had taken effect;

· If there is any prejudice to the employer (including prejudice caused by the delay);

· Fairness as between the Applicant and any other persons in a similar position.

The Applicant is required to email Chambers by 4:00pm on 3 September 2025 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.

I draw the parties' attention to the important note contained in the Listing Directions, reproduced below:

Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

• [4] No response was received from the Applicant. On 4 September 2025, my Chambers issued a further email regarding the Applicants non-compliance. The email relevantly stated:

I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 25 August 2025, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.

Chambers has contacted you via email on 2 September 2025 in relation to your non-compliance with Direction 1. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.

I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.

Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.

file and serve your submissions and other documents as outlined in Direction 1; or

advise that you do not wish to file any materials; or

make a request for an extension of time within which to file your materials, including any reason and evidence to support;

• [5] On 5 September 2025, having not received a response from the Applicant to the above email, and considering the Applicants materials were 4 days overdue, my Chambers sent the following correspondence to the parties:

I refer to our previous correspondence below and note that you have failed to comply with the Fair Work Commission's Directions and failed to provide any satisfactory explanation for your non-compliance with the Directions.

Therefore, unless we receive some communication from you which provides satisfactory explanation for your failure to comply with the Directions of the Commission by 4:00pm on Tuesday, 9 September 2025, your matter may be dismissed and/or the matter deemed resolved and the file will be closed.

• [6] On 9 September 2025, my Chambers sent a further email noting the following:

I note the below correspondence from the Commission and indicate that Chambers has not received a response.

The Hearing listed for 24 September 2025 is now vacated, and Commission is considering termination of the Application pursuant to s.587 of the Fair Work Act 2009 (Cth). The following Direction has been made:

1. If the Applicant does not wish for their Application to be dismissed, they are to file with the Commission, and serve on the Respondent, submissions outlining why their application should not be dismissed, by 4:00pm on 11 September 2025.

2. If the Applicant does wish for their Application to be discontinued, to file a Notice of Discontinuance Form F50.

Please be advised that if you do not respond your matter may be dismissed without further notice.

• [7] On 12 September 2025, my Chambers sent a final email notifying the Applicant that her Application would be dismissed. That email relevantly read:

Chambers refers to the above matter and notes that a response has not been received to the email below.

The Applicant, Sadie Wilson, is directed to provide his response by no later than 4:00pm on Monday, 15 September 2025. If no response is received by this time, the matter will be dismissed for want of prosecution.

• [8] To date no response from the Applicant has been received.

• [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:

• [10] The words, "Without limiting when FWC may dismiss an application" at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

• [11] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

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