s.394 - Application for unfair dismissal remedy

[1] On 1 October 2025, Ms Zoe Thomas (Ms Thomas) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by Bega Garnbirringu Health Services Incorporated (Bega Garnbirringu).

[2] On 9 October 2025, Bega Garnbirringu filed a Form F3 - Employer response to unfair dismissal application noting that it did not raise a jurisdictional objection in relation to the Application.

[3] On 6 January 2026, the Application was allocated to my Chambers for determination.

[4] A conference was held on 2 February 2026 to endeavour to resolve the Application. The conciliation was unsuccessful and the requirements for the filing materials and the resources available to assist in the preparation of those materials was explained to the parties.

[5] On 5 February 2026 Chambers forward links to various additional resources to assist Ms Thomas in the preparation of her materials.

[6] Directions were issued to parties on 10 February 2026 (Directions). The Directions required Ms Thomas to file by 4pm (AWST) 19 February 2026 her materials in relation to the merits of the Application. The parties were advised that compliance with the Directions was mandatory.

[7] Ms Thomas failed to file the materials by the required date and time as set out in the Directions.

[8] On 20 February 2026, Chambers wrote to Ms Thomas and reminded her that her materials in relation her application were overdue.

[9] On 20 February 2026, Bega Garnbirringu made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Ms Thomas failed to comply with the Directions (Dismissal Application).

[10] On 23 February 2026, Ms Thomas was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) 24 February 2026. Chambers advised Ms Thomas that if she did not file any such submissions or evidence by 4pm (AWST) 24 February 2026, the Application would be dismissed pursuant to section 399A of the FW Act.

[11] On 23 February 2026 Chambers spoke with Ms Thomas and explained that she needed to file her materials urgently and provide an explanation as to why she had not filed the materials within the time specified within the Directions no later than 4pm (AWST) 24 February 2026.

[12] On 24 February 2026 Chambers again spoke with Ms Thomas and reminded her than she must urgently file her materials and an explanation for the late filing. Ms Thomas indicated to Chambers that she understood that she needed to file materials by 4pm (AWST) 24 February 2026.

[13] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Ms Thomas by 4pm (AWST) 24 February 2026.

(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 other 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."

[15] Ms Thomas failed to file the materials she was directed to file by the dates specified in the Directions. As at the date of this decision, Ms Thomas has still not filed any materials in support of the Application or in response to the Dismissal Application. Ms Thomas has not sought an extension to file her materials in support of the Application or in response to the Dismissal Application. I am satisfied that Ms Thomas has unreasonably failed to comply with directions of the FWC relating to this Application. On the application of Bega Garnbirringu and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application.

• [16] An Order[1] to this effect will be issued with this decision.

[1] PR797135.

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