Allan Burns v Serco Australia Pty Ltd Summary

[2025] FWC 2574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Allan Burns
v

Serco Australia Pty Ltd

(U2025/5646)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 2 SEPTEMBER 2025

Application for an unfair dismissal remedy

On 6 May 2025, Mr Allan Burns made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Serco Australia Pty Ltd (Serco).

On 2 July 2025, Serco filed a Form F3 – Employer response to unfair dismissal application. Serco objected to the application on the grounds that Mr Burns was not dismissed.

The matter was listed for a Directions hearing by Video using Microsoft Teams on 6 August 2025.

After hearing from the parties, my Chambers issued directions for the filing and serving of materials and listed the matter for hearing in relation to jurisdiction and merits at 10:00am on 25 September 2025 in person, in Sydney (the Directions).

Mr Burns was required to file evidence and submissions in accordance with the Directions on 20 August 2025 but did not do so.

On 21 August 2025, my Chambers sent the parties an email which relevantly provided:

It is noted that the Applicant was due to provide their material by 4:00pm Wednesday, 20 August 2025. I confirm that Chambers is not in receipt of this material.

Deputy President Wright directs that the outstanding material is to be provided as soon as possible and by no later than 4:00pm tomorrow, 22 August 2025 along with the reason for the delay.

If the material is not provided by this date, the Deputy President will either proceed to determine the matter without regard to the Applicant’s material or dismiss the application pursuant to s.587 of the Fair Work Act 2009 (Cth).

The Applicant should advise Chambers immediately if he no longer wishes to proceed with the application.

Mr Burns did not respond to this email and did not file any material as required by the Directions.

On 22 August 2025, Serco made an application that Mr Burns’ application be dismissed pursuant s.399A of the FW Act. The s.399A application was listed for hearing at 4:15pm on 1 September 2025.

My Chambers attempted to call Mr Burns twice at the commencement of the hearing on the phone number provided in the application, however Mr Burns did not respond to the phone calls and did not appear at the hearing. Serco pressed its application for Mr Burns’ application to be dismissed in accordance with s.399A of the FW Act. I dismissed the application at the hearing and now provide my reasons.

Section 399A of the FW Act provides as follows:

Dismissing applications

(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.

I am satisfied that the Commission has taken reasonable and appropriate steps to inform Mr Burns of the Directions and hearing date, contact Mr Burns on the date of the hearing and inform Mr Burns of the consequences of failing to comply with the Directions.

In the circumstances, I am satisfied that Mr Burns has unreasonably:
(a) failed to attend a hearing held by the Commission, in relation to the application; and
(b) failed to comply with a direction of the Commission relating to the application.

I have therefore decided to dismiss the application pursuant to s. 399A(1) of the FW Act.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant

Mr P. Brown, Solicitor for the Respondent

Hearing details:

2025
1 September 2025
Online

Printed by authority of the Commonwealth Government Printer

Allan Burns filed an application with the Fair Work Commission under section 394 of the Fair Work Act 2009, alleging unfair dismissal by Serco Australia Pty Ltd. Serco contested the application, asserting that Mr Burns was not dismissed. Following a series of hearings and procedural exchanges, the matter progressed to a hearing concerning jurisdiction and merits, scheduled for 25 September 2025. However, Mr Burns did not adhere to the filing and serving directives set by the Commission, and despite reminders, failed to submit any material. This non-compliance prompted Serco to apply for dismissal of Mr Burns' application under section 399A of the Fair Work Act.

The central legal issues in this case revolved around whether Mr Burns' failure to comply with the Commission's procedural directives constituted unreasonable conduct warranting dismissal of his application under section 399A(1) of the Fair Work Act. Specifically, the court had to determine if Mr Burns' non-attendance at the hearing and non-compliance with the Commission's directions were unreasonable and justified dismissal of his application. The court also needed to assess if the Commission had taken adequate steps to inform Mr Burns of the procedural requirements and consequences of non-compliance.

Deputy President Wright found that Mr Burns had unreasonably failed to attend the hearing and comply with the Commission's directions. The court was satisfied that reasonable steps had been taken to inform Mr Burns of the procedural requirements and consequences of non-compliance. Given Mr Burns' persistent non-compliance despite multiple notices and reminders, the court concluded that his failure to adhere to the procedural directives was unreasonable. Therefore, the application was dismissed pursuant to section 399A(1) of the Fair Work Act. The court also noted that Serco's application for costs under section 400A was not pursued in this decision.

In light of the dismissal of Mr Burns' application, the Fair Work Commission issued no further orders. The application was dismissed in its entirety, and no remedy was granted to Mr Burns regarding his alleged unfair dismissal by Serco Australia Pty Ltd.

Allan Burns v Serco Australia Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established