s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.399A - failure to attend hearing held by the Commission - s.587 - failure to prosecute case in a reasonable manner

• [1] On 1 July 2025, Mr Tom Ah Kau (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with PFD Food Services Pty Ltd (Respondent).

• [2] The application was served on the Respondent on 14 July 2025 and on 15 July 2025 the Commission issued a notice of listing to the parties, informing them that the matter would be the subject of conciliation by a Fair Work Commission Conciliator at 9.15am on 31 July 2025.

• [3] A Form F3 Response was filed by the Respondent on 17 July 2025.

• [4] At 12:50pm on 29 July 2025 the Applicant emailed the Commission and requested that the date of conciliation be changed to a date after 4 August 2025 on the basis that he had been subpoenaed to give evidence at court. The Applicant attached a copy of a letter from the Office of the Director of Public Prosecutions indicating that the Applicant would likely be required to give evidence on 24, 25 and 28 July 2025.

• [5] At 2.21pm on 29 July 2025 the Respondent emailed the Commission indicating it objected to the adjournment request on the basis that the dates that had been identified as the dates on which the Applicant would be giving evidence in court, i.e. 24, 25 and 28 July 2025 did not conflict with the date that had been set down for conciliation, being 31 July 2025.

• [6] At 2.53pm on 29 July 2025 the Commission wrote to the Applicant indicating that it had received his request to reschedule the conciliation and needed more information to consider the request by 4pm on 30 July 2025.

• [7] At 3.48pm on 29 July 2025 the Applicant emailed the Commission providing further explanation regarding his adjournment request.

• [8] At 4.29pm on 29 July 2025 Commission wrote to the Applicant indicating that his request for adjournment had been refused and that the Applicant would need to join the online conciliation at the scheduled time.

• [9] At 11.51pm on 30 July 2025 the Applicant wrote to the Commission and stated that due to personal illness he was unable to participate in the conciliation scheduled for 9.15am on 31 July 2025, attaching a medical certificate which stated the Applicant had a "medical condition and will be unfit for work, study or usual daily activities from 30/07/2025 to 01/08/2025 inclusive".

• [10] At 8.06am on 31 July 2025 the Respondent wrote to the Commission noting the Applicant had provided a second reason as to why he was purportedly unable to attend conciliation that day and requested that the matter be dismissed.

• [11] On 1 August 2025 the Commission listed the matter for conciliation for 9.15am on 28 August 2025 and sent a notice of listing to the parties.

• [12] On 28 August 2025 at 8.38am the Applicant wrote to the Commission stating that "due to personal illness" he would be unable to participate in the conciliation that had been scheduled for 9.15am that morning and that he would provide a medical certificate that day.

• [13] The Respondent responded shortly thereafter indicating that this was the second time the Applicant had either requested an adjournment or was unable to attend the listed conciliation and requested that the "matter be thrown out and his application [be] formally dismissed".

• [14] At 9.15am on 28 August 2025 the Commission emailed the parties to advise that the adjournment request had been received and granted and that the Applicant was required to provide a medical certificate within 7 days.

• [15] A medical certificate for 28 August 2025 was received from the Applicant at 6.28am on 2 September 2025.

• [16] On 5 September 2025 the Commission again listed the matter for conciliation at 9.15am on 15 September 2025 and provided a notice of listing to the parties. The matter was not resolved via conciliation.

Allocation to Chambers and Applicant's non-attendance at conference on 10 October 2025

• [17] On 15 September 2025 the Commission wrote to the parties indicating that further to the unsuccessful conciliation, the application had been referred to a conference/hearing before a Commission Member and that the parties would hear from Chambers.

• [18] The matter was allocated to Chambers on 3 October 2025 and on 7 October 2025 the matter was listed for case management conference to be held at 2pm on 10 October 2025. The notice of listing was provided to the parties.

• [19] On 10 October 2025 Applicant wrote to Chambers and indicated that he was unable to attend the conference due to personal illness. The Applicant attached a medical certificate stating that he had a "medical condition" and would be "unfit for work from 09/10/2015 to 10/102025 inclusive".

• [20] On 10 October 2025 the Respondent wrote to Chambers and requested that the Commission consider dismissing the application due to the Applicant's continued non-attendance and expressing the view that the Applicant's conduct was detrimental to the hearing of the matter in a timely manner.

Directions and attempted case management conference on 15 October 2025

• [21] The Commission set down directions for the matter on 10 October 2025 (Directions) and notified the parties that the matter would again be listed for a Case Management Conference and Member Assisted Conciliation by telephone at 3:30pm on Wednesday, 15 October 2025 to provide a further opportunity for the parties to resolve the matter through conciliation or to raise any questions they may have regarding the Directions. A notice of listing for this purpose was sent to the parties on 10 October 2025.

• [22] The Applicant did not attend the case management conference. Chambers attempted to call the Applicant three times at the commencement of the conference, but he did not answer. Chambers emailed the Applicant requesting that he join the conference as soon as possible but he did not respond to that email.

Respondent's application to have the matter dismissed

• [23] On 15 October 2025, following the Applicant's non-attendance at the case management conference, the Respondent wrote to Chambers requesting that the matter be dismissed in accordance with s.399A of the Act on the basis that:

• the Applicant had not attended a conference listed by the Commission five times since lodging his application;
• the notice of listing for the case management conference on 15 October 2025 was issued on 10 October 2025 and at no stage did the Applicant advise the Commission that he was unable to attend or seek an adjournment;
• the Applicant failed to attend a conference conducted by the Commission in relation to his application.

• [24] An application under s.399A must be made by a party in accordance with the Fair Work Commission Rules 2024 (Rules) by filing and serving a Form F1. 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 Act and accept the application. In the circumstances I decided to waive compliance with the Rules pursuant to s.586 of the Act and accepted the s.399A application.

Service of application and response sought from Applicant

• [25] On 15 October 2025, following receipt of the Respondent's s.339A application, the Commission wrote to the Applicant, who had received a copy of the application, providing the Applicant with an opportunity to respond. The Commission directed the Applicant to make submissions and provide any supporting evidence regarding why his application should not be dismissed pursuant to s.399A of the Act by no later than 4:00pm on Wednesday, 22 October 2025.

• [26] The Commission's correspondence informed the Applicant that should he fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and this may result in the dismissal of the claim for unfair dismissal remedy.

• [27] The Applicant did not respond to the Commission's correspondence.

(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.

• [29] The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) explains that:

"161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

• failed to attend an FWC conference or hearing relating to the application;
• failed to comply with an FWC direction or order relating to the application, or
• failed to discontinue the application after a settlement agreement has been concluded.

162. The power to dismiss an unfair dismissal application in these circumstances is

not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

1. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

• an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
• an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

1. Note 2 to new subsection 399A(1) draws the reader's attention to the FWC's capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant's failure caused the other party to the matter to incur costs.

1. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.

1. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC's general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC's power to dismiss an unfair dismissal application under new section 399A. 167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part."

• [30] In Ian Kenneth Lockyear v Graeme Cox[1] the Full Bench observed that the power to dismiss applications is to be exercised cautiously and in this regard made reference to the following observations of the Full Bench in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2]:

"The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly, a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant's right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her 'day in court', or as the appellant pleaded, he just wanted his case heard[3]."

• [31] The Full Bench in Ian Kenneth Lockyear v Graeme Cox proceeded to make the following findings:[4]

"[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."

• [32] As noted earlier in this decision, the Respondent has made an application pursuant to s.399A of the Act. I decided to waive compliance with the Fair Work Rules regarding the form of the s.399A application pursuant to s.586 of the Act and accepted the email application.

• [33] The Applicant was served with a copy of the s.339A application and was given an opportunity to respond to it. The Commission advised the Applicant that should he 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. The Applicant did not respond in accordance with the directions

• [34] The Applicant failed to attend a conference conducted by the Commission on 15 October 2025 in relation to the application. The Applicant did not advise the Commission of his inability to attend nor provide reasons for non-attendance. The Applicant has also failed to comply with the directions of the Commission to address the s.399A application and has not complied with directions to file submissions in relation to his application by 4pm on Friday 24 October 2025. This conduct has followed a pattern where the Applicant has not been available to participate in earlier scheduled conferences.

• [35] In the circumstances, I have decided to dismiss the application pursuant to s.399A of the Act on the grounds that the Applicant has failed to attend a conference conducted by the Commission and has failed to comply with a direction of the Commission relating to the application. An order to that effect will be issued.

[1] [2021] FWCFB 875.

[2] [2019] FWCFB 2925 at [31].

[3] Also see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Micheletto v Korowa Anglican Girls' School [2003] AIRC 1391 [PR940392].

[4] [2021] FWCFB 875 at [57].

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