s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to s.587.

• [1] On 25 August 2025, Spencer Petrie (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Stamford Inn (the Respondent).
• [2] The matter was allocated to my Chambers on 6 November 2025 for determination.
• [3] On 14 November 2025, directions were issued for the filing of submissions and evidence, and the matter was listed for a Mention on 25 November 2025 and set down for a Hearing on 12 January 2026. Paragraph [13] of the Directions advised that 'Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned.'
• [4] The Applicant did not attend the Mention at 3:00PM on 25 November 2025. My Chambers attempted to contact the Applicant on his mobile phone number that was provided in his Form F2 application. The Applicant stated he was not aware of the directions or the notice of listing sent advising him of the Mention and the Hearing, stating further that he needed time to find the correspondence. My Chambers forwarded the documents to him again; however, he did not attend.
• [5] The Mention was conducted without the Applicant and the Respondent appeared.
• [6] The Applicant's initial submissions were due to be filed to Chambers and served on the Respondent by 4:00PM on Friday, 5 December 2025. The Applicant did not file any submissions, nor did he send any correspondence to the Commission.
• [7] On 8 December 2025, my Chambers sent a non-compliance email to the Applicant in the following terms:

I refer to the matter above and Directions attached, issued on 14 November 2025.

As per the Directions, you were required to file submissions by 4:00pm on Friday, 5 December 2025. You did not comply with these Directions as the Commissioner is yet to receive any material from you.

If you intend to file submissions, you should do so without further delay.

If you do not comply with the Directions, and do not file your submissions, by 4:00pm TODAY, 8 December 2025, the matter will be listed for a Non-compliance Hearing.

Please note, if you do not attend this Hearing your application is likely to be dismissed entirely.

Alternatively, if you do not intend to pursue your application further, please file a signed Form F50 Notice of Discontinuance as soon as practicable."

• [8] Failing to hear from the Applicant in response, my Chambers then sent the Applicant the following correspondence:

I refer to the matter above and correspondence below.

Commissioner Connolly notes that you have not responded to the below correspondence sent to you on 8 December 2025.

Accordingly, the Commissioner has formed a preliminary view that your application should be dismissed pursuant to s.587 of the Fair Work Act 2009.

You are directed to provide a written explanation as to why you have failed to comply with the Commission's directions and why your application should not be dismissed pursuant to s.587, by no later than 4:00pm on Friday, 19 December 2025.

In the instance that you do not comply with this direction or engage with the Commission generally within this timeframe, your application is likely to be dismissed entirely."

• [9] The Applicant did not respond and has not engaged with the Commission to this date.
• [10] s.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

(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:

• [11] 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]
• [12] In Raschilla v Ausino West Pty Ltd[3] (Ausino), 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.
• [13] In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute his case. The principle of 'a fair go all round' applies to both employers and employees. I find that the Applicant's non-participation in the Commission's processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
• [14] As noted above, s.587(1) does not limit when the Commission may dismiss an application. Mr Petrie 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 to dismiss Mr Petrie's application

• [15] The application lodged by Mr Spencer Petrie pursuant to s.394 of the Act on 25 August 2025 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

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

[3] [2017] FWCFB 5952.

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