Mr Hanno Liebenberg v Leidos Australia Pty Limited

[2025] FWC 1190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Hanno Liebenberg
v

Leidos Australia Pty Limited

(U2025/2122)

COMMISSIONER TRAN

MELBOURNE, 30 APRIL 2025

Application for an unfair dismissal remedy – Application dismissed under s 399A – Unreasonable failure to comply with directions.

Check para 10; otherwise I have proofread and this is ready to go

This is a decision to dismiss the application for an unfair dismissal remedy made by Mr Hanno Leibenberg.

The Commission may dismiss a matter under section 399A of the Fair Work Act 2009 (Cth), on application by a respondent, where an applicant has failed to attend conferences and hearing or comply with directions of the Commission.

Leidos Australia Pty Limited – the respondent in this matter – made such an application on 27 March 2025 in an email to the Commission. The email copied in Mr Leibenberg.

I am satisfied that Mr Leibenberg has failed to attend a conference or hearing and failed to comply with directions. I am satisfied that the failure to comply with directions was unreasonable.

Mr Leibenberg failed to attend a conference and hearing listed for 7 April 2025. This was initially listed as a determinative conference/hearing to deal with the question of whether to extend time for Mr Leibenberg to have filed his application. The listing was changed to a case management conference and hearing to deal with the Respondent’s application for the matter to be dismissed under s 399A.

Mr Leibenberg has failed to comply with directions that I issued on 7 March 2025 in that he did not file his materials in the deadline in those directions (which was 21 March 2025).

I am satisfied that Mr Leibenberg has unreasonably failed to comply with directions because he has not provided any reasons for his failing to comply.

I provided Mr Leibenberg with the opportunity to provide reasons for failing to comply with directions. My chambers sent him an email on 27 March 2025 informing him of his failure, requiring him to urgently file materials and provide reasons for failing to provide materials.

Despite Mr Leibenberg’s non-attendance at the hearing on 7 April 2025, I heard the respondent’ s further oral submissions about dismissing Mr Leibenberg’s application. I then provided Mr Leibenberg with the further opportunity to say why his matter should not be dismissed by issuing further Directions. Mr Leibenberg did not file any material nor otherwise contact my chambers prior to the deadline I provided (Friday 11 April 2025).

Mr Leibenberg also failed to attend a hearing on 7 April 2025 but provided a reason for failing to do so. Prior to the hearing on 7 April 2025, Mr Leibenberg spoke with my associate by telephone. His reason for failing to attend was that he had a job interview scheduled for the same time as the hearing. I am of the view that Mr Leibenberg did not unreasonably fail to attend a hearing. However, we informed Mr Leibenberg of the date and time of the hearing on 7 and 27 March 2025. In those circumstances, he should have contacted us prior to the hearing to ask for it to be rescheduled to accommodate his job interview. He did not proactively do so and we only learned of his reason for not attending when we contacted Mr Leibenberg minutes prior to when the hearing was scheduled to start. This is the only time that Mr Leibenberg has engaged with the Commission other than filing his application.

As I am satisfied that Mr Leibenberg has unreasonably failed to comply with directions and the respondent has made an application, I may dismiss this matter under s 399A of the Act. I exercise my discretion to do so as Mr Leibenberg has been provided with many opportunities to engage with his application but has failed to do so.

Order

I order that the application for an unfair dismissal remedy under matter number U2025/2122 filed by Mr Hanno Leibenberg on 25 February 2025 be dismissed under section 399A of the Act.

COMMISSIONER

Appearances:

No appearance for the Applicant

Ms K Sweatman of Kingston Reid with permission for the Respondent

Hearing details:

7 April 2025
Via Microsoft Teams

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission, in a decision dated 30 April 2025, dismissed an unfair dismissal remedy application brought by Mr Hanno Liebenberg against Leidos Australia Pty Limited. Mr Liebenberg sought relief under the Fair Work Act 2009 after being dismissed from his employment. The Commission exercised its discretion under section 399A of the Act to dismiss the application due to Mr Liebenberg’s unreasonable failure to comply with the Commission's directions and his non-attendance at scheduled conferences and hearings.

The primary legal issue before the Commission was whether Mr Liebenberg's failure to attend a case management conference and hearing on 7 April 2025, and his non-compliance with specific directions issued by the Commission, was unreasonable. The Commission had issued directions on 7 March 2025, requiring Mr Liebenberg to file certain materials by 21 March 2025. Additionally, he was required to attend a determinative conference/hearing on 7 April 2025, which was subsequently changed to a case management conference and hearing. Mr Liebenberg did not attend the hearing or comply with the directions.

The Commission found that Mr Liebenberg had unreasonably failed to comply with the directions as he did not provide any reasons for his non-compliance, despite multiple opportunities to do so. Although Mr Liebenberg provided a reason for not attending the hearing, citing a job interview conflict, the Commission noted that he could have contacted the Commission prior to the hearing to request a rescheduling. The Commission concluded that Mr Liebenberg's failure to engage proactively with the Commission's process and his overall lack of compliance with the directions were unreasonable.

Consequently, the Commission dismissed Mr Liebenberg's application under section 399A of the Fair Work Act, given the respondent's application and Mr Liebenberg's unreasonable failure to comply with the directions. The Commission highlighted that Mr Liebenberg had been given numerous opportunities to engage with his application but failed to do so effectively.

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