Mr Jimi Clegg v Australian Wholistic Health & Wellbeing Company Limited

[2025] FWC 1510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Jimi Clegg
v

Australian Wholistic Health & Wellbeing Company Limited

(U2025/3302)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 3 JUNE 2025

Application for an unfair dismissal remedy – non-attendance at hearing – application under s.399A

An application for an unfair dismissal remedy was filed by Mr. Jimi Clegg (Applicant) on 19 March 2025. The Respondent to the application was the Applicant’s former employer Australian Wholistic Health & Wellbeing Company Ltd (Respondent). In his application, the Applicant asserted that he had been dismissed by the Respondent on 17 January 2025 in contravention of Part 3-2 of the Fair Work Act 2009(Cth) (Act). In that case, on the Applicant’s version of when the dismissal occurred, an application of this kind would need to have been made by 7 February 2025 to be within the 21-day time period prescribed by s.394(2) of the Act.

Directions were made to deal with the question of whether or not there were exceptional circumstances justifying an extension of time pursuant to s.394(2)(b) and (3) of the Act to allow the application to proceed. The matter was listed for hearing on 27 May 2025 to deal with that issue. The Applicant did not file any material in response to the directions and did not appear at the hearing on 27 May 2025.

The Respondent made an oral application at the hearing for the application to be dismissed pursuant to s.399A of the Act. That section provides that the Commission may, on application by an employer,[1] dismiss an application for an order under Division 4 of Part 3-2 if the Commission is satisfied that, amongst other things, the applicant has unreasonably failed to attend a conference conducted by the Commission or a hearing held by the Commission, in relation to the application.[2]

On 29 May 2025 I directed that the Applicant file and serve any material in response to the application made by the Respondent on or before 4pm on 2 June 2025 and advised that the application would be determined on the basis of the material filed. No response was received from the Applicant.

Given the notification of the listing of the matter provided to the parties, the non-attendance by the Applicant at the hearing, the absence of any notice from the Applicant that he was unable to attend and the failure of the Applicant to provide any explanation or submission relating to his non-attendance at the hearing on 27 May 2025, I am satisfied that the Applicant has unreasonably failed to attend a hearing in relation to the application.

The Application is dismissed pursuant to s.399A(1)(a) of the Act.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant.
Mrs Chelsea Lang for the Respondent.

Hearing details:

By video using Microsoft Teams at 10:00am AEST on Tuesday, 27 May 2025

[1] Section 399A(2).

[2] Section 399A(1)(a).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr. Jimi Clegg filed an application for unfair dismissal against his former employer, Australian Wholistic Health & Wellbeing Company Limited, alleging that his dismissal on 17 January 2025 contravened Part 3-2 of the Fair Work Act 2009. The application was required to be made within 21 days, which would have expired on 7 February 2025. The Fair Work Commission was tasked with determining whether there were exceptional circumstances that would justify an extension of time to allow the application to proceed. The matter was scheduled for a hearing on 27 May 2025, but Mr. Clegg did not attend the hearing and failed to provide any explanation or submissions regarding his absence. In response, the employer applied for the dismissal of the application under section 399A of the Act, which allows the Commission to dismiss an application if the applicant has unreasonably failed to attend a hearing.

The central legal issue before the Commission was whether Mr. Clegg's failure to attend the hearing constituted an unreasonable failure to comply with a direction of the Commission, as required by section 399A(1)(a) of the Act. The Commission had to assess whether Mr. Clegg's non-attendance, without any notice or explanation, was unreasonable given the prior notification of the hearing. The Commission also had to consider if the employer's application for dismissal was warranted under section 399A of the Act. The fairness and reasonableness of Mr. Clegg's non-attendance, and the implications of that non-attendance on the application, were critical to the decision.

The Fair Work Commission found that Mr. Clegg had unreasonably failed to attend the hearing, given the notification of the hearing, his failure to provide any notice of his inability to attend, and the absence of any explanation or submissions from him regarding his non-attendance. The Commission concluded that there was no reasonable justification for Mr. Clegg's absence, and that his failure to attend the hearing was unreasonable. Consequently, the Commission dismissed the application for unfair dismissal under section 399A(1)(a) of the Act. The employer's application for the dismissal of Mr. Clegg's application was upheld, and no further consideration of the merits of the unfair dismissal claim was made.

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Legal Principle Established