b) The Applicant did not provide any statements as required by the Directions dated 15 January 2025 by the Commission extended timeframe of 3:00pm Wednesday 29 January 2025.

c) The failures of the Applicant to comply with Directions of the Commission as outlined in 5a) and 5b) above, are grounds under section 399A(b) to dismiss the application of the Applicant."

• [10] On 30 January 2025, the Commission informed the Parties that a Mention/Conciliation would be held by Teams audio on 3 February 2025 to address the Applicant's response, the Employer's application to dismiss the s.394 application and the status of the matter.

• [11] The Applicant filed further material on 31 January 2025 at 11:16am, which included a witness statement of the Applicant, and other documents. It is noted that this filing was made outside of the timeframe specified by the Directions.

• [12] Given the Respondent's application to dismiss the Applicant's s.394 application, conferences to address these matters were held by Teams audio on both 3 February and 4 February 2025, materials and further responses were set out. After this parties were informed that:

"The Applicant has failed to file submissions and evidence in accordance with the directions and the amended directions. Further, the materials that have been provided to date the Applicant concedes do not represent the full case he intends to rely on. The non-compliance with the directions is problematic considering the respondent materials are due 12 February in line with the hearing to be conducted on the 25th and 26th of February 2025."

• [13] On 5 February 2025, parties were notified by the Commission that as per the listings on 3 and 4 February 2025, that comprehensive discussions had taken place at these Mentions with the Applicant and his support person regarding the failure to file his (overdue) material in accordance with the directions provided in January 2025. The Applicant was subsequently offered the ability to provide further submissions by 4pm on Thursday, 6 February 2025. It was noted that no further extension for the filing of material would be granted.

• [14] The Applicant submitted his additional material on 6 February 2025. The next day on 7 February 2025, the Respondent submitted that the Applicant's material was:

2. Is absent of submissions that address sections 387 and 392 of the Fair Work Act 2009.

3. Simply contains a number of attachments which are not readily connected or referenced.

4. Is incoherent and extremely difficult to follow.

5. Is largely unrelated to the basis of the Applicant's dismissal - which was for presenting to the Queensland Rail workplace on 15 August 2024 with THC-Cannabis in his system (which case law establishes is a basis for a valid reason for termination, particularly in workplaces with safety criticalities such as Queensland Rail).

Given this, Queensland Rail further submits that the Applicant has further failed to follow the directions of the Commission regarding the manner in which his material was required to be filed; and the material lodged is deficient such that there could be no reasonable prospects of success for the Applicant's case. This is despite significant extensions and support being given to the Applicant by the Commission.

Therefore, the Respondent finally submits that the Commission should dismiss the Applicant's application utilising sections 399A and 587 of the Fair Work Act 2009."

• [15] On 7 February 2025 at around 10:15am, the Applicant filed further material, explaining that they were missed from the email on 6 February 2025. It is noted that this filing was made beyond the specified timeframe.

• [16] On the same day, the Respondent submitted that the Applicant's material was:

"Out-of-time based on the further directions issued by the Commission dated 5 February 2025 - noting that the Commission, as part of these directions, put the Applicant on notice that no further extensions would be granted. On that basis, the Commission cannot except this material.

Unclear as to its nature. It is either absent submissions or a witness statement or both.

Lacking any details to support generalised statement/claims being made.

Largely unrelated to the basis of the Applicant's dismissal - which was for presenting to the Queensland Rail workplace on 15 August 2024 with THC-Cannabis in his system (which case law establishes is a basis for a valid reason for termination, particularly in workplaces with safety criticalities such as Queensland Rail).

Furthermore, the Respondent submits it would be prejudiced in having to attempt to respond to the material / application.

Given this, Queensland Rail reiterates that the Applicant has further failed to follow the directions of the Commission regarding the timing and manner in which his material was required to be filed; and the material lodged is deficient such that there could be no reasonable prospects of success for the Applicant's case. On this basis, the Commission should dismiss the Applicant's application utilising sections 399A and 587 of the Fair Work Act 2009."

• [17] Further on this day, the Commission directed the Applicant to provide a response by 10 February 2025 to the Respondent's submission that the Applicant's application should be dismissed.

• [18] The Applicant provided a response to the dismissal application on Monday, 10 February 2025 providing that:

"a. The submissions lodged with the commission and the respondent have been written by a layperson, failure to provide material has not been with intent or malice.

b. The matter is quite complex involving unlawful instructions by the respondent, and failure by the respondent to adhere to internal policies and procedures. Unreasonable instructions by the respondent causing distress to the Applicant is a mitigating factor.

c. The matter cannot be appropriately decided without considering the actions of the respondent over the 3 years prior to the termination.

d. The Applicant believes the onus of proof should fall on the respondent to prove they did not discriminate against the Applicant and adhered to applicable legislative instruments, and their own internal policies and procedures.

e. The Applicant cannot be disciplined from the results of this analysis (Rail Safety National Law QLD (RSNL) s. 129)

e.i Had the respondent adhered to their drug and alcohol policy and procedure as required by RSNL and EBA, the Applicant would never have been terminated

The respondent did unlawfully and unreasonably stand down the Applicant from work on unpaid leave without written notice or consultation.

This act breaches the Rail Safety National Law QLD, Work Health and Safety Act, Fair Work Act and the Queensland Rail Rollingstock and Operations Enterprise Agreement."

Relevant Legislation Regarding the application to dismiss

• [19] The Respondent's application to dismiss relied on s.399A (1)(b) (the Applicant failed to comply with directions):

(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."

• [20] The Respondent relied on s.587 (1)(c) (that the application had no reasonable prospect of success):

(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

(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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [21] The Respondent in this matter made an application to have the Applicant's application dismissed. The matter was brought on for further conferences to discuss the nature of the materials filed by the Applicant, and the application to dismiss.

• [22] The Applicant was self - represented and assisted by his partner (who volunteered, she was studying engineering at university). The Respondent is an experienced industrial relations practitioner. Queensland Rail is a larger employer with a significant, will-resourced human resources and industrial relations function.

• [23] The Applicant had been redirected to comply with the directions in terms of providing witness evidence as to why he considered the dismissal was unfair to provide submissions addressing the required legislative provision of s.387 and to address his case.

• [24] The Applicant had originally not filed any witness evidence nor addressed s.387 and filed limited submissions with a series of Queensland Rail policy and procedure documents attached, which he considered the Respondent had not complied with.

• [25] As a result of the further directions' Conferences, the Applicant undertook to consider the application and the progress of such and in particular to produce further materials, to be filed, to establish the arguments for his case. The Applicant did provide further materials, some of which were filed after the date of the extension, that was provided.

• [26] There is no doubt in this matter that the parties' cases set out different approaches to the issue of termination. The Respondent stated that the Applicant's employment was terminated as per the reasons in the letter of termination, for presenting at the site and testing positive for THC. The Respondent has argued that the Applicant has not provided responsive material to the reasons for the termination.

• [27] The Applicant's case in summary terms is that he argued that over a long period of time prior to the date of the incident occurring (that relates to the termination), that the Respondent had treated him in a prejudicial manner and had not acted in compliance with a range of policies and procedures that he has provided and briefly referred to.

• [28] It is not necessary at this current time to provide a comprehensive description of the matters between the parties, except to say that the Applicant's case considers that the treatment that he was subject to, provides mitigation in relation to the reasons for termination. He also alleged that he has been subject to discriminatory conduct on the basis of the manner in which the Employer has not discharged the applicable policies and procedures, to his circumstances.

• [29] It is recognised that the articulation of the Applicant's case has been limited, in terms of the alleged deficient application of the Respondent's policies and procedures. However, the Applicant's reference to these documents, he submits is aligned with the long timeline of events predominantly before the date of termination. He also makes some reference to the misapplication of the relevant procedure to the incident of the termination. Inherent to the events between the Applicant and the Respondent, the Applicant considered the Respondent's managers are familiar with these prior events, particularly in terms of managing them relevant to the Applicant's overall case. The Applicant argued that the mismanagement of his case, on a long term basis by the Respondent, was relevant to the termination.

• [30] The Applicant has alleged that he was left on leave without pay for significant periods of time and the Respondent did not comply with appropriate policy, in this regard, causing him significant hardship.

• [31] The assessment of the Applicant's material as provided, has been taken into account, against the general approach by the Commission in such applications for dismissal. That is, it is a significant step to dismiss a s.394 application prior to allowing for the Hearing of such.

• [32] With regarding to the legislation to dismiss an application, the only applicable sub-section of s.399A that could apply in the abovementioned circumstances is s.399A(1)(b) in relation to failure to comply with a direction or order.

• [33] The Applicant was given notice of the s.399A application and the intention of the Commission to deal with that matter, and as above, was given opportunity to respond to the Employer's application. I am therefore satisfied that he has been afforded procedural fairness.[1]

• [34] In relation to the general power to dismiss under s.587(1), it is considered that this should be used sparingly and approached with caution. [2] Proceeding with caution is also applicable to the discretion to dismiss under s.399A. As per the decision of Resta v Myer Ptd Ltd:[3]

"[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 'the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion'."

• [35] Additionally, Barwick CJ further observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others[4]:

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

• [36] In the current matter, on the current assessment it is not so 'plain and obvious' that the application cannot proceed. The Applicant has argued that there has been a history of issues between the parties regarding the proper application of the policies and the Applicant considered these matters had a bearing on the reasons for termination. It would be premature to currently conclude the matter and to deny the Applicant the opportunity to have the matter considered at Hearing. However, the Applicant will be required to address the termination incident.

• [37] Accordingly, I intend to accept all of the material that the Applicant has filed to date and to allow him a further period until this Tuesday afternoon (18 February 2025) to file anything further in relation to the s.394 application.

• [38] To provide fairness the directions allowing for the employer to file their material will be reset from this Tuesday afternoon (18 February 2025). The Applicant is on notice of the necessary compliance with the period for his reply evidence and submissions has been set to allow him to respond to the employer's case materials. Further Hearing dates will be set to accommodate the delay. These directions and the Hearing listing will be provided today.

• [39] The applicable provisions of s.399A(1)(b) and s.587(1)(c), has both been considered against the circumstances, the application to dismiss the Applicant's s.394 application is not granted.

[1] Further, this application has been made by the Employer as is mandatory per s.399A(2).

[2] Resta v Myer Pty Ltd [2013] FWC 7080 (Gostencnik DP, 17 September 2013) [32], [39 ('Resta')]; Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 (Richards SDP, 14 July 2015) [9].

[4] General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] HCA 69; (1964) 112 CLR 125.

Printed by authority of the Commonwealth Government Printer