Mitchell West v Viva Energy Retail Pty Ltd

[2025] FWC 3146

[2025] FWC 3146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mitchell West
v

Viva Energy Retail Pty Ltd

(U2025/9675)

DEPUTY PRESIDENT DEAN CANBERRA, 22 OCTOBER 2025

Application for an unfair dismissal remedy – application dismissed under s.399A.

1. On 10 June 2025 Mr Mitchell West (Applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (the Act) seeking a remedy in respect of his dismissal by Viva Energy Retail Pty Ltd (Respondent)

1. Following a conference conducted on 20 August 2025, directions were issued and the matter was listed for hearing on 21 October 2025.

1. The Directions required the Applicant to file material in support of his application by 4 September 2025. The Applicant did not comply. On 10 September 2025, the Applicant wrote to Chambers stating that his witness statement was the same as that in his application and that he “had nothing else to change or add to it”. Despite the Applicant’s non-compliance with the Directions, the Respondent filed material, and both parties were on notice that the hearing would proceed as scheduled.

1. The Applicant did not attend the hearing on 21 October 2025. Multiple attempts were made to contact him without success. This followed both email, text and phone messages sent to him the day before the hearing to remind him of the scheduled proceeding.

1. When it became clear that the Applicant was not going to attend the hearing and could not be contacted, an email was sent to him advising that he had the opportunity to explain his non-attendance before a decision would be made to dismiss his application.

1. The Respondent’s lawyer subsequently made an application under s.399A of the Act that the matter be dismissed on the basis that the Applicant had failed to attend a hearing held by the Commission.

1. Section 399A of the Act provides:

399A   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.

1. The Applicant has failed to attend a hearing held by the Commission and no reason has been provided for his non-compliance. He has not responded, despite multiple attempts to contact him.

1. I am satisfied that his failure to attend the hearing is unreasonable. Accordingly, the application is dismissed pursuant to s.399A of the Act.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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