Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Application pursuant to s399A to dismiss application for unfair dismissal remedy - s399A application granted - matter dismissed.

• [1] Mr Shannon Lademan (the Applicant) lodged a claim for unfair dismissal, claiming he was dismissed from his employment with S.A Building Supplies Pty Ltd (the Respondent) on 14 March 2025.

• [2] The Respondent provided their Form F3 - Employer Response on 16 April 2025.

• [3] The matter was listed for a directions hearing on 2 June 2025. When Mr Lademan did not join the directions hearing, my Chambers contacted him by telephone to understand whether he intended to join the proceeding. Mr Lademan advised my Chambers that he had another engagement and would not be in attendance. The directions hearing proceeded in his absence.

• [4] At the hearing, directions were made for the filing of material by both parties.

• [5] The Applicant did not file any material in accordance with the directions. This prompted my Chambers to send an email to the Applicant asking that he advise why he did not file material in support of his application and advising that should no response be received, that the matter would be listed for a directions hearing to address his non-compliance with the directions.

• [6] The Applicant did not respond to the email and the matter was listed for a non-compliance hearing on 20 June 2025. The Applicant did not attend that hearing.

• [7] On 25 June 2025, the Respondent filed a Form F1 seeking dismissal of the Applicant's claim pursuant to section 399A of the Fair Work Act 2009 (the Act) on the basis that the Applicant unreasonably failed to attend conferences and hearings conducted by the Commission and failed to comply with a direction of the Commission. My Chambers then listed the matter for hearing and sent the following email to the parties:

"The Respondent has filed an application under section 399A of the Fair Work Act 2009 to have this matter dismissed (see attached email) on the basis the Applicant has unreasonably failed to attend hearings and conferences listed before the Commission and failed to follow directions to file any material in support of his case.

The Applicant is directed to provide any response he would like to make to the application for his claim to be dismissed by no later than close of business on Wednesday, 2 July 2025. In the response, the Applicant must advise the Commission if he objects to his matter being dismissed.

The matter is then listed for a hearing to consider the Respondent's section 399A application. The Commissioner will consider the material filed by both parties, hear any submissions the parties wish to make and determine whether this matter should be dismissed.

If the Applicant does not file a response or participate in the hearing, the Commissioner will proceed to determine the matter on the information before the Commission."

• [8] The Applicant did not respond to this email.

• [9] A hearing was held on 7 July 2025 to consider the Respondent's section 399A application. There was no attendance by the Applicant. Mr Spedding attended on instructions from the Respondent and Mr Kearvell, Managing Director, attended on behalf of the of the Respondent.

• [10] At the conclusion of the hearing, I advised of my decision to grant the Respondent's s.399A application and order that the Applicant's unfair dismissal application be dismissed. I now issue my reasons in writing.

• [11] Section 399A of the Act provides:

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

• [12] A Full Bench of the Commission set out the process that should be followed before the Commission dismisses an application under section 399A of the Act in Lockyear v Cox[1]:

"[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1.14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

1. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

1. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

1. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

1. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.

[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief." (footnote omitted)

• [13] The application was made by the Respondent employer in accordance with section 399A(2) by way of filing a Form F1.

• [14] The application was served on the Applicant by email, at the email address provided by the Applicant when he filed his application. The Applicant was invited to respond to the application by close of business on 2 July 2025.
• [15] The same correspondence advised the Applicant that the matter would proceed to a hearing on 7 July 2025 to address the Respondent's application to dismiss the matter. The email also confirmed that should the Applicant not respond to the email or attend the hearing, "the Commissioner will proceed to determine the matter on the information before the Commission."

• [16] I am satisfied that the Applicant has unreasonably failed to attend a directions hearing and a non-compliance hearing conducted by the Commission in relation to his application and has failed to file material in support of his claim in compliance with the directions issued. The Applicant has also failed to provide a response to the section 399A application as directed and failed to attend the hearing of that application.

• [17] The Applicant has had no contact with the Commission since the matter was referred to my Chambers, other than briefly answering a telephone call from my Chambers and has provided no explanation as to why he has failed to engage with the Commission. The Applicant was on notice that if he failed to attend the hearing in which the Respondent's application was to be addressed, the Commission may dismiss his application without providing him with another opportunity to provide reasons for his non-attendance and non-compliance, and in reliance on the material before it.

• [18] The Commission corresponded with Mr Lademan using the email address he provided in his Form F2 Application on a number of occasions. The Commission has also attempted to contact the Applicant by telephone multiple times and other than on the first occasion when the Applicant advised that he would be unable to participate in a directions hearing. Efforts to contact him by telephone have been unsuccessful.

• [19] The Commission has provided a number of opportunities to Mr Lademan to engage with his matter in an effort to ensure he had ample time to prosecute his claim. Unfortunately, Mr Lademan has either been unable or chosen not to take up those opportunities.

• [20] I am satisfied that Mr Lademan has unreasonably failed to attend a number of hearings as set out above and unreasonably failed to comply with directions of the Commission to file materials in support of his claim and respond to the section 399A application.

• [21] Given the efforts to which the Commission has gone to make contact with the Applicant and Mr Lademan's lack of response to that contact, I considered it appropriate in the circumstances to exercise my discretion to dismiss the Applicant's application for an unfair dismissal remedy.

• [22] The Respondent's application to have Mr Lademan's claim for an unfair dismissal remedy dismissed was granted pursuant to section 399A(1)(a) and (b) at the conclusion of the hearing on 7 July 2025.

[1] [2021] FWCFB 875.

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