Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application to dismiss unfair dismissal remedy application pursuant to s.399A - failure to attend proceedings and comply with directions of the Commission - no submissions in response - application dismissed

• [1] On 3 February 2025, Mr Wayne Frost (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (UFD Application).

• [2] The matter was listed for a conciliation conference before a staff conciliator on 21 March 2025. The Applicant failed to attend that conference.

• [3] The matter was then allocated to my Chambers.

• [4] On 3 April 2025, the matter was listed for a case management and directions hearing. The Applicant failed to attend the case management and directions hearing. In the absence of the Applicant, I determined to set the matter down for hearing and issued directions to prepare the matter for hearing. The Applicant was directed to file any materials in support of the UFD Application by no later than 17 April 2025. The Applicant did not file any materials in accordance with the directions.

• [5] On 22 April 2025, the Applicant was sent correspondence from my Chambers seeking an explanation for his failure to comply with the directions. The Applicant was directed to provide a response by 23 April 2025. The Applicant did not provide any response.

• [6] I subsequently listed the matter for a mention and directions hearing on 6 May 2025. The Applicant did not attend the mention and directions hearing. During the mention and directions hearing, the Respondent made an oral application under s.399A of the FW Act (399A Application). By that application, the Respondent sought to have the matter dismissed on the basis that Applicant has unreasonably failed to attend conferences and/or hearings before the Commission, and failed to comply with a direction of the Commission.

• [7] I decided to accept the oral application and waived any requirement for the Respondent to file a Form F1 application (see s.586 of the FW Act; Rule 7 of the Fair Work Commission Rules 2024; Lockyear v Graeme Cox [2021] FWCFB 875 at [57]).

• [8] At the conclusion of the mention and directions hearing, correspondence was sent to the Applicant as follows:

I refer to the above matter and the correspondence below/attached.

You have failed to attend conferences and/or hearings before the Commission on 21 March 2025 and 3 April 2025.

You have also failed to comply with the directions of the Commission to file materials in support of application by 17 April 2025, and failed to provide any explanation for that non-compliance.

Most recently you have failed to attend a mention and directions hearing on 6 May 2025. At the directions hearing on 6 May 2025, the Respondent made an oral application pursuant to s.399A of the Fair Work Act 2009 for the Commission to dismiss your application for unfair dismissal on the basis that you have unreasonably:

(a) Failed to attend a conference and/or hearing in relation to your application (see s.399A(1)(a)); and

(b) Failed to comply with a direction of the Commission in relation to your application (see s.399(1)(b)).

In light of the history of this matter, Commissioner Ryan has determined to accept the oral application and waive any requirement for the Respondent to file an Form F1 application (see s.586 of the FW Act; r.7 of the Fair Work Commission Rules 2024; Lockyear v Graeme Cox [2021] FWCFB 875 at [57]).

Commissioner Ryan directs you (Mr Frost) to provide a response to the s.399A application by no later than 4:00pm on 7 May 2025. If you fail to provide a response, the Commission may proceed to determine the matter on the material before it without further notice to you.

• [9] The Applicant did not provide any response to the above correspondence.

• [10] Section 399A of the FW 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.

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."

• [11] In Thomas v Highway NN Pty Ltd[1], Deputy President Sams set out the approach to the exercise of the power to dismiss an application pursuant to s.399A as follows:

[14] Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application. It is not in dispute that the applicant failed to attend Commission conferences on two occasions, knowing full well the ramifications of not doing so. Therefore, this decision rests primarily on my discretionary power as to whether I should dismiss this application as a result of the applicant's non-compliance.

• [12] In relation to the 399A Application, I am satisfied that it was made by the Respondent in accordance with s.399A(2). I am also satisfied that the Applicant's failure to attend the conferences and hearings before the Commission was unreasonable. I am further satisfied that the Applicant's failure to comply with the directions of the Commission was unreasonable. Accordingly, the grounds set out at s.399A(1)(a) and (b) are satisfied.

• [13] As the jurisdictional pre-requisites have been met, it now turns to whether I should exercise my discretion.

• [14] In Thomas v Highway NN Pty Ltd, Deputy President Sams stated:

[15] It has been long held by the Courts and this Commission that the power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is so because it results in the extinguishment of a party's application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her 'day in court'.

• [15] The cautious approach to dismissing a substantive application for relief was reiterated by a Full Bench of the Commission in Lockyear v Graeme Cox.[2]

• [16] In Viavattene v Health Care Australia,[3] the Full Bench of the Commission stated:

[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained "substantial arguments in response to the Applicant's contentions". There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended "to ensure that a 'fair go all round' is accorded to both the employer and employee concerned" (s.381).[4]

• [17] Throughout these proceedings the Applicant has failed to attend multiple listings before the Commission and has failed to comply with the directions of the Commission. Furthermore, the Applicant has failed to provide any explanation for his non-attendance and non-compliance or otherwise engage with the Commission. It is unfair and unreasonable for the Respondent to be put to more time and cost in defending a matter which is not being diligently prosecuted by the Applicant.

• [18] Having regard to all the circumstances, and the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded, I am satisfied that I should exercise my discretion to dismiss the UFD Application.

• [19] For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

• [20] The UFD Application is dismissed pursuant to s.399A(1)(a) and (b) of the FW Act. An order to that effect will be issued with this decision.

[1] Thomas v Highway NN Pty Ltd [2020] FWC 3911 at [14].

[2] [2021] FWCFB 875 at [58].

[3] [2013] FWCFB 2532.

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