Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - applicant's failure to communicate with Commission and/or comply with directions wholly unacceptable, unexplained and unsatisfactory - application dismissed

• [1] On 24 March 2025, Mr Tim Tochel (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is No. 1 Riverside Quay Proprietary Limited (Respondent).

• [2] Directions [2] and [3] of the Directions issued on 29 April 2025 read:

"[2] By 4.00pm AEST on Wednesday, 7 May 2025, the Applicant is to either:

1. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

1. file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant's out of time application.

[3] Should the Applicant fail to comply with Direction 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant."

• [3] The Applicant did not comply with Direction [2].

• [4] On 9 May 2025, at 11:43am AEST, the following email (Show Cause Email) was sent to the Applicant:

Re: U2025/3544 - Mr Tim Tochel v No. 1 Riverside Quay Proprietary Limited

On 29 April 2025, the Fair Work Commission issued the attached Directions in this matter.

Direction [2] of those directions read as follows:

[2] By 4.00pm AEST on Wednesday, 7 May 2025, the Applicant is to either:

a. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

b. file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant's out of time application.

To date, Chambers has not received any materials in compliance with Direction [2].

In view of the foregoing, the Deputy President directs as follows:

[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, Friday 9 May 2025.

[2] If the Applicant does not comply with Direction [1] above, or if the Deputy President is not satisfied by the Applicant's submissions, the matter may be dismissed without further notice.

• [5] On 9 May 2025 at approximately 3:29pm AEST, my Associate telephoned the Applicant and left a voicemail message for him to return Chambers' call (Voicemail). The Voicemail outlined the contents of the Show Cause Email, and reminded the Applicant that there was approximately half an hour before the expiry of the deadline in the Show Cause Email. Further, my Associate advised the Applicant to urgently contact Chambers.

• [6] The Applicant did not respond to the Show Cause Email or the Voicemail.

• [7] On 9 May 2025, at approximately 5:57pm AEST, my Associate again telephoned the Applicant, but his phone rang out and went unanswered (Further Call). No voicemail message was left. No further call back or other communication from the Applicant has been received as at the time of publishing this decision.

• [8] Section 587 of the Act reads:

(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.

(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:

• [9] In Matthrew Priestley v Blackfisch Films Pty Ltd[1] (Priestley) and Ms Meiyun Xue v Serco Australia Pty Limited[2] (Xue), the Commission held that:

a) the mere fact of non-compliance with a direction is not to be regarded as, in and of itself, sufficient to dismiss an application;

b) the fact that a person may be active on social media, and/or be presumed to have access to free publicly available wi-fi in shopping malls, food courts and other public places (including libraries and fast-food restaurant venues), will not diminish an assertion by such person that they did not receive email communications from the Commission, or were unable to respond via telephone or email to Commission communications;

1. the "possibility" that a party fails to respond to correspondence from the Commission because such correspondence has not been received or read, or because it has been misunderstood, or because directions have been misunderstood, or for some other legitimate reason, ought not be discounted. In other words, the fact that a failure to communicate with the Commission might 'possibly' be explained, is to be taken into account, even though such explanation has never been communicated to the Commission;

d) where a party does not comply with directions on the basis of an assertion that they are yet to obtain legal advice or legal representation, such an assertion will likely be a reasonable explanation for the party's non-compliance. This is so even in circumstances where the party has had the ability to obtain legal advice or legal representation since the date that they first filed their application (normally many weeks prior to their evidence and submissions being due), but have chosen to only inform the Commission of their failure to obtain such legal advice or representation after the deadline for them to file their evidence and submissions has already passed;

e) akin to overturning a default judgement, if an applicant can provide a belated explanation for their incommunicado conduct, they have a very good chance that their dismissed proceedings will be revived or re-enlivened, including on the basis of a denial of procedural fairness generally, or one of its broad tenants;

f) the failure of a party to file submissions and evidence in reply, even where directions have been issued that expressly 'require' the party to do so, provides no basis to infer that an applicant is not seeking to pursue their application. This is so despite the direction itself requiring reply evidence to be filed, the applicant providing no indication of their forensic choice not to file reply evidence, and the applicant making no attempt to have the direction as to reply evidence varied prior to its date for compliance; and

g) the Commission's power to dismiss an unfair dismissal application on grounds of non-compliance with directions, or being unresponsive to Commission communications, is only available on application by a respondent employer, and where the applicant has conducted themselves unreasonably (albeit, note that some of the matters set out in (a) to (f) above may limit or dilute the ordinary meaning of the term "unreasonable").

• [10] As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email, and has failed to otherwise respond to the Show Cause Email, the Voicemail and the Further Call, I have decided to dismiss his Application.

• [11] The Applicant has been repeatedly asked to explain and justify his non-compliance and non-responsiveness, but has failed (for unknown reasons) to do so. This is in circumstances where the Applicant has been provided with every opportunity to contact Chambers by telephone or email, but has failed to do so. Even though there is always the possibility that the Applicant has failed to comply or otherwise respond because he has not received Commission communications or simply does not understand them, there is equally the possibility that the Applicant has simply decided to ignore the Commission. Rather than engaging on the various possibilities, my preference is to work on the basis of what is actually before me at the time of publishing this decision. In this regard, as at 14 May 2025, there is no evidence before me that the Applicant has in any way attempted to comply with Direction [2] and/or the Show Cause Email, or otherwise sought to make contact with the Commission.

• [12] The decisions in Priestley and Xue identify that dealing with non-compliance and non-responsiveness is an ordinary part of case management. However, to the extent that these decisions fail to uphold (as their central focus) the issue of personal responsibility, for example, in being responsive in a timely manner to Commission communications, I decline to follow them.

• [13] A statutory tribunal such as the Fair Work Commission is expressly given certain jurisdiction and powers that it must exercise. I consider that the Commission must equally be taken to hold (by implication) whatever powers may be necessary to properly exercise such (express) powers and control its own process (including the dismissal of proceedings for reasons of non-compliance and non-responsiveness).[3] Further, in dismissing an application, I do not consider it necessary to get into some form of labelling or categorisation exercise as to whether an Application is being dismissed for want of prosecution, absent due dispatch, abuse of process, being vexatious, etc, or to engage is some form of detailed multifactorial analysis or balancing exercise around possibilities or unquantifiable probabilities, etc. If an applicant goes incommunicado and thus fails in their personal responsibility to engage with the case that they have themselves initiated, I consider this alone sufficient to remove the applicant's right or entitlement to have their proceedings continued any further. Of course, there will be exceptions, but such exceptions need to be well grounded in direct probative evidence of an actual inability to have communicated with the Commission at the relevant time, or as and when required to do so.

• [14] With due respect to the Full Bench in Xue, I do not accept that I need wait for the Respondent to make overtures about filing, or actually filing, an application under s.399A of the Act, to enliven my power and discretion to dismiss the Application. Whatever be an employee's right or entitlement to unfair dismissal protection, and the filing of a claim with the Commission to adjudicate same, such an employee also holds a personal responsibility to the Commission to be responsive in a timely manner to communications, and to file and serve their evidence and submissions as directed (i.e. absent prompt communication with the Commission of their inability to do so). A failure to be responsive is not simply an issue to be dealt with via run of the mill case management procedures, or only upon application by a respondent employer. Rather, I consider that non-responsiveness is outright fatal to an employee's ability to maintain, or continue to agitate, their (in this case unfair dismissal) claim before the Commission. Indeed, the suggestion that an unfair dismissal claim may only be dismissed upon a respondent employer's application under s.399A of the Act, in circumstances where an applicant's conduct has been deleterious and/or unreasonable, makes little sense.

• [15] An Order dismissing the Application under s.587(3)(a) of the Act, for the reasons set out in this decision, will be published contemporaneously with this decision.

[1] [2025] FWCFB 40

[2] [2025] FWCFB 75

[3] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, at 16-17, per Dawson J.

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