Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - no dismissal - failure to prosecute application - dismissal under s. 587(1)(c) at the Commission's initiative - no reasonable prospect of success

• [1] On 19 June 2025, Ms Sarah Gamble made an unfair dismissal application to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Respondent, The Southern Hotel (Gawler) Trust, objected to the application on the basis that Ms Gamble had not been dismissed.

• [3] Mr Giannitto attended a staff conciliation conference on 18 July 2025 on behalf of the Respondent. Ms Gamble did not attend. I note that attendance is not mandatory and this is merely an observation.

• [4] A Directions Hearing was held on Friday, 1 August 2025. The parties were advised by email on the previous day that their attendance at the Hearing would be mandatory and that written Directions would be issued in their absence.

• [5] Mr Giannitto attended the Directions Hearing on behalf of the Respondent. Ms Gamble did not attend. The Commission made three attempts to contact Ms Gamble by telephone on this date, along with a voice message requesting a call back. Ms Gamble did not respond to these communications.

• [6] In accordance with the Directions issued, Ms Gamble was due to file her materials by Friday, 15 August 2025. She did not comply with the Directions and the Commission has not received any contact from Ms Gamble since that time.

• [7] The matter was listed for a Non-compliance Hearing on Wednesday, 20 August 2025. Neither party attended that Hearing despite the attempts made by the Commission to contact them.
• [8] The Commission wrote to the parties advising that they were required to attend the Non-compliance Hearing but had failed to do so and the application was at risk of being dismissed. The correspondence requested the parties to urgently contact Chambers.

• [9] Mr Giannitto contacted Chambers later that day and Ms Gamble did not respond.

• [10] Further correspondence was issued by the Commission following the Non-compliance Hearing on Thursday, 21 August 2025, advising Ms Gamble that she had until 27 August 2025 to explain why the application should not be dismissed.

• [11] No response was received by 27 August 2025, or at all.

• [12] Section 587 allows the Commission to dismiss applications without the need for a protracted hearing if the application has no reasonable prospects of success,[1]

(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.

• [13] The Commission is not required to persevere with an application in circumstances where the applicant has stopped participating in the proceeding.[2]

• [14] Section 587 (3) allows the Commission to dismiss an application on its own initiative.

• [15] I am satisfied that Ms Gamble has been afforded procedural fairness and provided a reasonable opportunity to present her case, but has failed to do so. No evidence has been provided to the Commission to advance her case and Ms Gamble has not attended any of the Hearings relating to her application.

• [16] Adequate notice has been provided to Ms Gamble of the Commission's intention to dismiss her application if she failed to provide submissions and/or evidence as to why the application should not be dismissed. Ms Gamble has not responded or participated in that process.

• [17] I am satisfied that Ms Gamble has stopped participating in the proceeding and has demonstrated that she doesn't intend to pursue the application.

• [18] Accordingly, I have determined that the application has no reasonable prospect of success.[3] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[4]

[1] Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16].

[2] Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]- [40].

[3] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16].

[4] PR791279.

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