David Walker v Next Level Elevators Pty Ltd Summary

[2025] FWC 2035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Walker
v

Next Level Elevators Pty Ltd

(U2025/5598)

COMMISSIONER MCKINNON

SYDNEY, 21 JULY 2025

Application for an unfair dismissal remedy – s.399A dismissal

On 6 May 2025, Mr David Walker applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to his former employment with Next Level Elevators Pty Ltd (Next Level Elevators).

On 14 July 2025, Next Level Elevators applied under s.399A of the Act for the application to be dismissed.

Section 399A of the Act permits the Commission to dismiss an application for an unfair dismissal remedy if the applicant has unreasonably failed to comply with a direction of the Commission relating to the application or has failed to attend a conference conducted by the Commission in relation to the application.

The relevant facts are these:

On 10 June 2025, I issued Directions and a Notice of Listing to the parties. Among other things, the Directions required Mr Walker to file and serve an outline of submissions, any witness statements and other evidentiary material on which he wished to rely by 4.00pm on Tuesday, 24 June 2025, and advised that the matter was listed for jurisdictional hearing at 10.00am on 17 July 2025.

Mr Walker did not file any materials by 24 June 2025. At 4.50pm on 25 June 2025, Chambers sent an email to Mr Walker reminding him of his overdue materials and directing Mr Walker to file and serve his materials by close of business the following day. Mr Walker did not respond or file any materials by the extended filing date.

At 12.32pm on 14 July 2025, Chambers emailed the parties confirming that no materials had been received from Mr Walker in compliance with the Directions and requesting the parties provide their views on whether the matter be determined on the papers by 9.00am on Tuesday, 15 July 2025. Mr Walker did not respond to the email and did not provide any views about how the matter should proceed.

It is evident that Mr Walker has not complied with the Directions. He has not provided any explanation for this failure, and there is no other evidence or indication on the file to the effect that Mr Walker is unable to comply with the Directions or to correspond with the Commission as required.

In the circumstances, I am satisfied that Mr Walker has unreasonably failed to comply with directions of the Commission.

Order

Application U2025/5598 is dismissed under s.399A of the Act.

COMMISSIONER

Determined on the papers

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, David Walker, sought an unfair dismissal remedy against Next Level Elevators Pty Ltd, his former employer, under section 394 of the Fair Work Act 2009. The application was subsequently dismissed by the Fair Work Commission on 21 July 2025, following an application by Next Level Elevators pursuant to section 399A of the Act. Section 399A allows the Commission to dismiss an application if the applicant has unreasonably failed to comply with a direction of the Commission or has failed to attend a conference conducted by the Commission.

The central legal issue the Commission needed to decide was whether Mr Walker had unreasonably failed to comply with the Commission’s directions and, if so, whether this justified the dismissal of his application. The Commission found that Mr Walker had not filed the required materials by the specified deadline, despite being given an extension. He also failed to respond to follow-up correspondence from the Commission, which requested his views on how the matter should proceed. The Commission concluded that Mr Walker’s failure to comply with the directions, without any explanation or evidence of inability to comply, constituted an unreasonable failure.

The Commission held that Mr Walker had unreasonably failed to comply with the directions of the Commission, leading to the dismissal of his application under section 399A of the Act. The Commission was satisfied that Mr Walker’s actions warranted the dismissal, as there was no justification for his failure to comply with the directions.

The final order of the Commission was that the application U2025/5598 be dismissed under section 399A of the Act.

David Walker v Next Level Elevators Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established