s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed pursuant to section 399A of the Act.

• [1] On 6 June 2025 Mr Steven Scott (the Applicant) applied to the Fair Work Commission (FWC) for a remedy, claiming he had been unfairly dismissed from his employment with BHP Iron Ore Pty Ltd (the Respondent). The matter was allocated to my Chambers on 22 July 2025.

• [2] On 23 July 2025 my Chambers sent a notice of listing for a mention hearing to be conducted on 28 July 2025. Some eight minutes before that hearing was to commence my Chambers received a Form F54 from the Applicant's representative notifying that they no longer represented the Applicant. The Applicant subsequently failed to attend the mention hearing. As a consequence, I caused my Chambers to write to the Applicant as follows:

It is noted that you did not attend today's scheduled conciliation conference held via Teams at 1.00pm (AWST). Some eight minutes prior to the commencement of the conference we received a Form F54 from your representatives, advising that they no longer act for you in the matter.

Notwithstanding that you no longer have a representative, you were required to attend the conference. Attempts were made to contact you by telephone and email without success.

You are now directed to advise Chambers by no later than 4.00pm (AWST) on Tuesday 29th July 2025 as follows:

1. Whether you intend to continue with your application; and
2. The reason(s) for your non-attendance at today's conference.

You should be aware that if you do not respond by the time set out above, the Deputy President may form the view that you are not properly pursuing your application, which is grounds for the application to be dismissed.

If you wish to discontinue your application, you can do so by emailing Chambers and stating you wish to withdraw."

• [3] On 29 July 2025 the Applicant responded as follows:

My apologies for not replying, but I didn't see the email correspondence and didn't receive any missed calls over the day, barring a missed called from a NZ number.

Barring been given some further time to find legal representation, I have no other option, but to withdraw my application"

• [4] Having considered this response, I did not take it as an unequivocal withdrawal of the claim. As such I caused my Chambers to write to the Applicant as follows:

Deputy President O'Keeffe notes your response regarding your non-attendance at yesterday's conciliation conference. He notes that it would appear that your former representative was aware of the conference and the Respondent was both aware and in attendance. As such, it is unclear why you would not have received notification.

In any case, with respect to further time to secure legal representation it would appear that you have already had an opportunity to take legal advice from Mr Gaffney. While Mr Gaffney has now advised the Commission that he no longer represents you, it is noted that he prepared your application form and as such must have provided you with some advice at that time. Given this, the Deputy President is uncertain as to what additional advice you require.

At this time, the Deputy President advises that your options are:

1. Continue with your application without representation; or

1. Withdraw your application; or
2. Seek an extension of time to secure alternative representation. If you choose this option you are advised that you will need to explain the circumstances by which Mr Gaffney ceased to be your representative and that any extension will be limited to one week.

Can you please advise by 4.00pm (AWST) Wednesday 30th July how you wish to proceed?"

• [5] The Applicant responded on 30 July 2025 as follows:

I will continue the application without representation at this stage

• [6] Given this response, parties were sent a new notice of listing for a mention hearing on 1 August 2025. On this occasion, neither party attended the hearing. The Applicant sent an email later that day as follows:

i am sorry but over looked the mentions hearing this morning as i am going to represent myself and i haven't had the opportunity to prepare myself

Can i request an extension to prepare for the hearing or to seek legal representation"

• [7] I then caused the following email to be sent to parties:

Deputy President O'Keeffe notes that neither party attended this morning's scheduled conference. For the Applicant, this was the second time he has failed to appear at a scheduled listing. The Deputy President notes that the Applicant was previously provided with three options with respect to this matter:

1. Continue with the application without representation; or
2. Withdraw the application; or
3. Seek an extension of time to secure alternative representation. If you choose this option you are advised that you will need to explain the circumstances by which Mr Gaffney ceased to be your representative and that any extension will be limited to one week.

The Applicant advised that he would continue without representation. The Applicant is now seeking an extension to prepare or seek legal representation.

The Deputy President is reluctant to list this matter again in circumstances where the Applicant has failed to attend twice and is now seeking a further extension. As such, he directs as follows:

1. The Applicant is to provide written submissions outlining why his combined base salary and work allowance does not take his earnings above the high-income threshold which was $175,000 at the time of his dismissal. Such submissions are to be received in Chambers by 4.00pm (AWST) Tuesday 5th August.

Once the submissions are received, the Deputy President will decide as to whether the matter can continue.

The Applicant is put on notice that if no submissions are received, the Deputy President may dismiss his application with no further correspondence."

• [8] The Applicant responded with detailed submissions regarding his argument that he fell within the scope of the Mining Industry Award 2020 but did not address his non-attendance. Notwithstanding this I listed a conference between the parties and advised them as follows"

Deputy President O'Keeffe notes the submissions from Mr Scott addressing the issue of jurisdiction and notes that his position is that his role fell within the scope of the Mining Industry Award. If it is indeed the case that his role is covered by the Award, then the Respondent's objection based on the high-income threshold would not prevent the Commission dealing with the matter.

However, the Deputy President is mindful that the Applicant has now failed to appear at two conferences, which has wasted time for the Respondent and for the Commission.

Given this, the Deputy President advises that he directs for this matter to be heard and conduct a conference at 1:00PM AWST on Tuesday, 12 August 2025, subject to a condition.

Specifically, the Applicant's attention is drawn to s.399A of the Fair Work Act 2009 as follows (emphasis added):

(1) Where FWC may dismiss an unfair dismissal application] 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.

The Applicant is advised that if he fails to attend the conference on the 12 August 2025 and the Respondent makes application for his application to be dismissed the Deputy President will consider dismissing the application without any further correspondence."

• [9] The parties attended this conference and after some discussion and movement on his part, the Applicant tabled a very modest offer of settlement. I formed a view that given the Respondent was represented, the settlement offer was far less than the costs that would be incurred in running a full hearing. As such, I advised the parties that I would convene one further conference at which I expected there to be a senior decision-maker from the Respondent present.

• [10] A notice of listing was sent to parties for a conference to be held on 20 August 2024. Some forty minutes prior to the conference commencing, the Applicant contacted Chambers and advised that he was en route to Port Hedland by plane and would likely not attend the conference. He confirmed this following contact made by my Chambers at the commencement of the conference.

• [11] The Respondent was in attendance with counsel and her instructor, three members of the ER team and the senior Operations Manager responsible for the final decision on an offer. The Respondent has now applied under s.399A to have the application dismissed.

• [12] Section 399A of the Act provides as follows:

(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.

(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."

• [13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. In this instance, the Applicant has failed to attend three conferences. He has been warned that non-attendance could lead to dismissal of his claim under s.399A. He was aware that the FWC had made arrangements for a senior decision maker to be present at the conference on 20 August 2025. While he has advised of his non-attendance prior to the conference, he has failed to do so in a timely manner or in a manner that would have allowed the conference to be cancelled and re-scheduled. In short, he has wasted considerable amounts of the FWC's time and the time of the Respondent's senior managers and counsel.

• [14] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Scott's application. An Order[1] giving effect to this decision will be issued today.

[1] PR790883.

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