Mr Jimi Clegg v Australian Wholistic Health & Wellbeing Company Limited

[2025] FWC 1510

[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

1. 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.

1. 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.

1. 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]

1. 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.

1. 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.

1. 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).

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