s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - applicant failed to engage in the process - want of prosecution - application dismissed.

[1] The following is an edited version on an ex tempore decision I made on Thursday 12 March 2026 dismissing Mr Sam Abdi's application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act), against Heart Of Melbourne Pty Ltd (the Employer).

[2] Mr Abdi made an application for unfair dismissal remedy on 19 November 2025, using the Commission's online lodgement system.

[3] The Commission's file on this matter reflected that the matter was listed for conference before a conciliator on 15 January 2026, which did not resolve the dispute.

[4] On 23 January 2026, Mr Abdi's application was allocated to my Chambers.

[5] On 9 February 2026, my Chambers issued Directions and a Notice of Listing to the parties for a Case Management Conference 2 March 2026 to discuss directions and whether the application could be resolved other than by formal arbitration. Relevantly, the correspondence from my Chambers notified the parties that they should set aside at least 90 minutes for the Case Management Conference on 2 March 2026.

[6] On 9 February 2026, my Chambers also issued directions for the filing of submissions, relevantly directing Mr Abdi to file written material in support of his case by 5pm on 4 March 2026.

[7] Mr Abdi attended the Case Management Conference on 2 March 2026 but informed me he had not set aside 90 minutes as directed, but only 15 minutes because he had a client. Accordingly, only directions were discussed. Mr Abdi confirmed he wanted to pursue his application and raised no concern with the directions.

[8] Mr Abdi did not file any written submission by 5pm on 4 March 2026 and has not filed any written submissions since that date.

[9] On 5 March 2026, my Chambers sent an email to Mr Abdi which referred to the fact that Mr Abdi had not filed material in compliance with directions. That email stated:

RE: U2025/18292 - Mr Sam Abdi v Heart Of Melbourne Pty Ltd

I refer to the above matter and to the attached Directions dated 9 February 2026. Paragraph [5] of those Directions required you to file in the Commission and serve on the Respondent, by no later than 5:00pm on Wednesday 4 March 2026, the following documents:

• Witness statements;
• Any other documentary evidence; and
• An outline of submissions on which you seek to support your contention that your dismissal was unfair.

Chambers has not received the documents referenced above.

If you wish your matter to proceed you must urgently submit material in accordance with paragraph 5 of the Directions. You are further required to provide reasons why you have not complied with Commission directions, including any supporting documentary evidence (for example, if you have been ill, the Commissioner requires additional medical evidence).

The Commissioner has listed this matter for a Compliance Hearing at 2:00PM on Thursday 12 March 2026, by Microsoft Teams. At the Compliance Hearing the Commissioner will consider your reasons why you have not complied with directions to date and determine whether your application should progress or be dismissed. Parties are directed to allow 1 hour for the proceeding.

Should you fail to attend the Hearing, and/or fail to provide submissions detailed in the above paragraph, your application may be dismissed without further notice to you. Please use the following link to join the Compliance Hearing:

Join the Compliance Hearing on 12 March 2026 via this link

Please note that the Compliance Hearing is an official proceeding before the Commission. Parties are expected to conduct and present themselves professionally when attending proceedings before the Commission."

[10] Mr Abdi failed to attend the Compliance Hearing of 12 March 2026 and has not contacted my Chambers with any reasons for his non-attendance or failure to comply with my other directions.

[11] On 12 March 2025 at approximately 2.05pm, my Associate called Mr Abdi regarding attending the Compliance Hearing but there was no response from Mr Abdi.

[12] To date, Mr Abdi has not provided any further response to the Commission.

[13] Section 587 of the Act sets out the basis upon which the FWC may dismiss an application:

(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 or 773 on the ground that the application:

• [14] It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application "for want of prosecution" is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
• [15] In Raschilla v Ausino West Pty Ltd[3] the Full Bench emphasised that the Commission's powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an applicant's right to have their substantive application heard and determined by the Commission.

Consideration - Should Abdi's application be dismissed?

[16] Mr Abdi has failed to comply with my directions of 9 February 2026, and failed to attend the Compliance Hearing of 12 March 2026, despite being required to do so. Mr Abdi has provided no reason for these failings.

[17] I am satisfied that despite being properly advised of the various opportunities to advance his case, Mr Abdi has unreasonably failed to comply with directions of the Commission and failed to attend this hearing. Mr Abdi has unreasonably failed to take sufficient actions to engage with the Commission to prosecute his case. I have provided Mr Abdi multiple, reasonable opportunities and have expressly put him on notice that a failure to engage with the Commission by the due date would lead to the dismissal of the application without further notice.

[18] As noted above, s.587(1) does not limit when the Commission may dismiss an application. Mr Abdi has, in effect, abandoned his application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion under s.587(1) to dismiss Mr Abdi's application.

[19] Mr Abdi's application under s.394 is this therefore dismissed.

[1] Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153, [48].

[3] [2017] FWCFB 5952.

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