Mr Baminahannadige Kasun Lakshitha Fernando v Action Labour Ser Pty Ltd

[2025] FWC 8

[2025] FWC 8

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Baminahannadige Kasun Lakshitha Fernando
v

Action Labour Ser Pty Ltd

(U2024/11171)

COMMISSIONER YILMAZ MELBOURNE, 2 JANUARY 2025

Application for an unfair dismissal remedy – matter dismissed under s.399A following an application by the Respondent

1. On 20 September 2024, Mr Baminahannadige Kasun Lakshitha Fernando (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged he was unfairly dismissed by Action Labour Ser Pty Ltd (the Respondent) on 30 August 2024. The Respondent submits that the dismissal took effect on 5 August 2024 and the dismissal was a genuine redundancy.

1. A case management hearing was held on 3 December 2024, but the Applicant did not attend. A call was placed to him, and he advised that he would not be attending. Despite this, the parties were sent directions and notice of listing on the same day. The Applicant’s submissions were due on 20 December 2024. After failure to file submissions, email reminders were sent with a warning that the application may be dismissed for non-compliance if the Applicant did not respond. The Applicant has not engaged with the Commission despite all attempts to contact him. Further he has not taken any action to advance his application. I also observe that the Applicant did not respond to numerous efforts to contact him to participate in the staff conciliation scheduled for 13 November 2024.

1. On 20 December 2024, chambers received an email from the Respondent requesting that the application be dismissed under s.399A of the Act. In its email the Respondent submits that the application lacks merit as the termination of employment was a genuine redundancy due to the loss of the cleaning contract with Cabrini Health. In the email, the Respondent describes the process of informing affected staff of the progress of its tender, the result, consultation and efforts to support staff including options for alternative employment. The Respondent relies on s.399A of the Act and submits that on the facts, the application has no reasonable prospect of success. It further relies on the Applicant’s failure to attend scheduled conferences and hearings including his failure to comply with directions from the Commission.

The Legislation

1. Section 399A of the Act concerns the power of the Commission to dismiss an application for a remedy for unfair dismissal under subsection (1) when an application is made by the employer. Relevantly, s.399A provides:

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. While the Respondent has made an application to dismiss the Applicant’s application, the Commission may also on its own motion dismiss an application subject to s.587 of the Act. 

1. Section 587 of the Act provides as follows:

“587  Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)   the application is not made in accordance with this Act; or

(b)   the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)   is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.”

Consideration and Conclusion

1. The Applicant has not responded to the numerous emails, text messages or phone messages from the Commission to engage in the process to advance his application. Having considered the efforts made to contact the Applicant and his failure to respond together with the notice of risk of dismissal of the application, I am satisfied that the application made by Mr Fernando for a remedy for an unfair dismissal should be dismissed.   

1. I am satisfied that pursuant to s.399A the Commission may dismiss an application where the applicant has failed to comply with directions and the application to dismiss was made by the employer.  

1. Further, at the commencement of s.587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

1. Had the Respondent not made the Application to dismiss, the Commission may dismiss on its own motion where it considers that the matter cannot be prosecuted because of failure by the Applicant to comply with directions or engage with the Commission. In this instance Mr Fernando has not complied with the directions nor responded to the numerous attempts by the Commission to engage with him. I am also satisfied that through those attempts to contact him, the Applicant was on notice of the risk that his matter may be dismissed, should he fail to contact the Commission.

1. On this basis, the application is dismissed for failure to comply with the Commission’s directions pursuant to s.399A and failure to engage with the Commission pursuant to s.587 of the Act.

1. An order[1] to that effect will be issued with this decision.

COMMISSIONER

[1] PR782940.

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<PR782939>