FWC dismisses application after repeated non-compliance with directions
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application where a worker claimed he was unfairly terminated from his employment with a cleaning services company. The worker's application, lodged under section 394 of the Fair Work Act 2009, asserted that the termination of his employment was unfair.
The worker initiated legal proceedings in October 2024, seeking remedies under the unfair dismissal provisions. Following an unsuccessful conciliation process conducted by a staff member of the FWC, the matter was allocated to a Commissioner for formal proceedings, setting in motion a series of scheduled hearings and filing deadlines.
What followed was a procedural journey that ultimately led to the application being dismissed not on its merits, but due to the worker's repeated failure to comply with directions.
The case began on 19 October 2024 when the worker lodged an unfair dismissal application claiming his termination from Sanikleen Group Australia Pty Limited, a cleaning services company, was unfair. Following an unsuccessful conciliation on 26 November 2024, the matter was allocated to Commissioner Johns on 27 November 2024.
The FWC attempted to schedule a Mention/Programming hearing multiple times. The decision notes: "Directions were issued 28 November 2024 for a Mention/Programming hearing listed for 4 December 2024. That listing was vacated due to the unavailability of the [employer] as were the subsequently relisted and vacated dates for the Mention/Programming hearing of 20 December 2024 and 6 January 2025."
On 7 January 2025, Commissioner Johns' Chambers issued directions for filing material and scheduled a hearing for 31 January 2025. When both parties missed the initial filing deadlines, the FWC issued revised directions on 23 January 2025. The employer complied by submitting materials on the hearing date, but the worker failed to attend the scheduled hearing.
In response to the worker's absence, the FWC issued further revised directions on 3 February 2025. The hearing was rescheduled for 27 March 2025, with the worker required to file materials by 14 February 2025 and provide evidence explaining his non-attendance by 28 February 2025.
Despite these accommodations, the worker failed to comply with either requirement. The Commission had only received a single witness statement from the worker, while the employer had properly submitted their documentation.
On 3 March 2025, Commissioner Johns' Chambers sent another notice to the worker highlighting his continued non-compliance and warning of possible dismissal. The correspondence, quoted in the decision, stated:
"[The worker] must provide reasons for [the worker's] non-compliance with the Commissioner's directions by 4:00 pm (Melbourne time) on 7 March 2025. Please note that a failure to not comply with the Commissioner's directions may result in the matter being dismissed."
On 11 March 2025, the case was reassigned to Deputy President Masson after Commissioner Johns was appointed to the Federal Family and Circuit Court, which prevented him from dealing with the matter to its conclusion.
As noted in the decision: "On allocation of the matter to my Chambers it became apparent on review of the file that there had been a pattern of non-compliance with directions on the part of [the worker]."
Deputy President Masson scheduled a non-compliance hearing for 17 March 2025. The employer attended this hearing, but the worker again failed to appear or provide any explanation for his absence. During this hearing, the employer's representative made an oral application under section 399A of the Fair Work Act 2009 for dismissal of the unfair dismissal application.
The Deputy President then sent correspondence to the worker on 17 March 2025 explaining the employer's application and detailing the specific pattern of non-compliance. The worker was given until 19 March 2025 to file submissions explaining why his application should not be dismissed but again failed to respond.
In considering whether to dismiss the application, Deputy President Masson examined section 399A of the Fair Work Act 2009, which was quoted in full in the decision and provides that the FWC may dismiss an application if 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...."
The Deputy President also noted that under section 593 of the Act, "the Commission is not required to hold a hearing except as provided by the Act." Having received no opposing submissions from the worker by the 19 March 2025 deadline, the Deputy President determined: "I will determine the s 399A application on the papers."
In the final assessment, Deputy President Masson found the worker had clearly failed to comply with multiple directions from the FWC. The decision states:
"[The worker] has demonstrated a pattern of non-compliance with directions of the Commission. [He] has done so by failing to attend the hearing listed for 31 January 2025, failed to file material in accordance with directions issued by the Commission, failed to provide evidence supporting [his] non-attendance at the 31 January 2025 hearing and failed to attend the non-compliance hearing listed for 17 March 2025."
The Deputy President concluded these failures "have gone unexplained and are unreasonable in light of the substantial latitude afforded to [the worker] by the Commission in terms of the programming of the matter and the provision of revised filing dates."
Based on this persistent pattern of unexplained non-compliance despite multiple opportunities provided, the Deputy President granted the employer's application under section 399A(1), stating: "the Applicants' unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision."
