Fair Work Act 2009

s.394 - Unfair dismissal

The Department of Families, Fairness and Housing

Application for an unfair dismissal remedy - Application dismissed pursuant to s.399A of the Fair Work Act 2009.

• [1] On 28 January 2025, Ms Susan Wills made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is the Department of Families, Fairness and Housing (the Respondent).

• [2] In her Form F2 - Unfair Dismissal Application (Form F2), Ms Wills provided a mobile phone number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Ms Wills received a response that it was "undeliverable".

• [3] The matter was allocated to me on 18 February 2025 and on this date, I caused Directions and a Notice of Listing for a telephone Mention, to be held at 10:00am on 21 February 2025, to be sent to the parties. My Directions dated 18 February 2025, outlined the timeline for the filing and service of material ahead of an Arbitration Conference/Hearing. In particular, Ms Wills was directed to file and serve her Outline of Argument, Statement(s) of Evidence and Document List, by no later than 3:00pm on Wednesday 26 March 2025.

• [4] The Mention was subsequently relisted, in order to accommodate the availability of Ms Wills. During the process of establishing the requirement for a new listing, and a time when a Mention could be held, emails were both sent and received from the email address provided by Ms Wills in her Form F2. During the Mention subsequently conducted on 25 February 2025, Ms Wills was in attendance and my Directions dated 18 February 2025 were discussed and explained to the parties. I emphasised the importance of compliance with my Directions and specifically raised with Ms Wills that there was a risk of a s.399A application being made by the Respondent in the event that she did not comply with them.

• [5] By 3:00pm on Wednesday, 26 March 2025, Ms Wills had not complied with my Directions. Accordingly, on 28 March 2025, I caused email correspondence with a copy of my Directions dated 18 February 2025 and a Notice of Listing to be sent to the parties advising that a Non-compliance hearing would take place at 9:15am on Monday, 31 March 2025.

• [6] The Non-compliance hearing proceeded before me on 31 March 2025. Ms Wills could not be contacted at the listed time, despite three attempts to call her on her nominated mobile telephone number and three voicemail messages being left which requested her response and attendance. The Non-compliance hearing proceeded in the absence of Ms Wills as I was satisfied she had been placed on notice that it would be occurring and had provided no indication that she would not be able to attend. During the Non-compliance hearing, the Respondent made an application pursuant to s.399A of the Act to have the unfair dismissal application of Ms Wills dismissed. I waived compliance with the Fair Work Commission Rules 2024 and accepted the s.399A application during the Non-compliance hearing.

• [7] Shortly after the Non-compliance hearing, correspondence was sent to Ms Wills' nominated email address advising her of the Respondent's s.399A application. Ms Wills was directed to file submissions by no later than 10.00am on 3 April 2025, explaining why she had neither complied with the Directions to file material, nor attended the Non-compliance hearing. This correspondence outlined that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission and Ms Wills was further cautioned that in the absence of a response, her unfair dismissal application would likely be dismissed without further notice, via a Decision and Order which would be published to the Commission's website.

• [8] As at 10.00am on 3 April 2025, Ms Wills had not filed any material with the Commission in response to the s.399A application. Nor had she made any contact with my Chambers. This failure to do so is in addition to Ms Wills' continued failure to file material for the Arbitration Conference/Hearing pursuant to my Directions dated 18 February 2025.

• [9] 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.

• [10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As Ms Wills did not file any material in opposition to the Respondent's s.399A application, I will determine the s.399A application on the papers.

• [11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. I confirm the Commission has at all times used the telephone number and email address nominated by Ms Wills in its attempts to contact her. Ms Wills has not responded to the attempts to contact her since the Mention was conducted on 25 February 2025. Ms Wills has had the opportunity to engage with the Commission's processes and prosecute her case but has failed to progress the prosecution of her case and has provided no explanation to the Commission for either her continued failure to comply with the 18 February 2025 Directions, or her failure to attend the Non-compliance hearing on 31 March 2025.

• [12] In all the circumstances of this matter, I am satisfied that I should exercise my discretion under s.399A to dismiss Ms Wills' unfair dismissal application. I am satisfied that Ms Wills unreasonably failed to attend the Non-compliance hearing on 31 March 2025. Ms Wills was advised of the Non-compliance hearing in advance via the contact details she had provided to the Commission and yet made no response to the Commission's attempts to contact her before, at the time of or after it. Further, I am satisfied Ms Wills has unreasonably failed to comply with both my direction to respond to the s.399A application and my direction that she file and serve her material for the Arbitration Conference/Hearing. There has at no stage been a response to Commission communications outlining that Ms Wills has not be able to either attend Commission proceedings or comply with directions. This pattern of inaction persuades me that this is a case in which it is appropriate to exercise the discretionary power in s.399A.

• [13] My determination to exercise my discretion and dismiss Ms Wills' unfair dismissal application pursuant to s.399A brings it to an end. An Order[1] to this effect will be issued with this Decision.

[1] PR785797.

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