Case discusses how FWC made multiple attempts to re-establish contact
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case that raised questions about workplace rights and procedural fairness.
The worker claimed her dismissal was harsh, unjust, or unreasonable, while her employer maintained the position had been made redundant.
What started as an active pursuit of workplace rights through proper legal channels took an unexpected turn as the case progressed through the Commission.
Worker’s ‘commitment’ to pursue her case
The case began in the healthcare sector when the worker filed an unfair dismissal application with the FWC on 16 May 2024.
Her employer, a healthcare organisation, responded within two weeks, arguing that the dismissal resulted from a genuine redundancy.
Early proceedings showed the worker's strong commitment to her case. She attended the initial directions hearing and took an active stance by opposing the employer's request for legal representation.
Worker’s participation in Fair Work proceedings
Throughout June and July 2024, the case moved through standard procedural steps. The worker engaged regularly with the Commission's processes, responding to communications and participating in scheduled hearings.
The employer maintained its position about the redundancy being genuine, while also following proper procedures by seeking permission for legal representation and complying with Commission directives.
Signs of potential issues emerged when the worker missed the 1 August 2024 deadline for filing her witness statement.
She quickly responded the next day with an explanation, saying she had thought she had sent the material but discovered it was still in her email outbox.
The Commission demonstrated flexibility in managing these early delays. When the employer requested to move a hearing date, the Commission suggested 27 August 2024, though the worker did not confirm her availability for this new date.
Worker’s failure to respond
The case took a significant turn on 27 August 2024. The worker emailed the Commission early that morning about a family medical emergency.
She later provided documentation showing she needed to care for a family member from 26 to 30 August 2024.
The Commission's understanding of the situation was reflected in their response:
"[The worker] has advised that they are able to provide evidence to support the reason for the adjournment request at a later time, and in the circumstances the Commissioner has determined to grant the request for an adjournment on the basis that material be will provided."
After 30 August 2024, communication from the worker stopped entirely. The Commission made multiple attempts to re-establish contact, including scheduling new hearing dates and issuing orders to produce documents.
The Commission's final attempt to engage with the worker stated:
"If you fail to respond to this email advising whether you intend to pursue or withdraw your application by that time, the Commissioner will dismiss your application under s.587 of the Fair Work Act 2009."
FWC dismisses worker’s application
The Commission explained its approach to case dismissals: "The power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so."
In reaching its decision, the Commission referenced previous cases:
"When, as in this case, [the worker] fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice... the fact that [they] did not attend to pursue [their] case meant that there was no requirement to take that material into account. [The employer's] case was, in effect, unchallenged."
The Commission's reasoning for its final decision was clear:
"Notwithstanding [the worker] was previously engaged in prosecuting her matter... subsequent to her last correspondence of 30 August 2024, [the worker] has since failed to respond to various correspondence from chambers, failed to comply with the second production order I issued, failed to attend the non-compliance hearing listed for 17 October 2024, and has failed to provide any reasonable explanation to the Commission regarding these failures or otherwise convey her intentions in relation to her application."
This case provides important insights into how the Fair Work Commission handles situations where participants stop engaging with proceedings.
It also shows the Commission's process for ensuring parties have sufficient opportunities to participate before making decisions under section 587 of the Fair Work Act 2009.
