Mr Jimi Clegg v Australian Wholistic Health & Wellbeing Company Limited Summary

[2025] FWC 1446

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, 27 MAY 2025

Application for an unfair dismissal remedy

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]

Given the notification of the listing of the matter provided to the parties, the non-attendance by the Applicant at the hearing, and in the absence of any notice from the Applicant that he was unable to attend, 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, the applicant, filed an application for an unfair dismissal remedy against his former employer, Australian Wholistic Health & Wellbeing Company Limited, asserting he was dismissed in contravention of Part 3-2 of the Fair Work Act 2009. The application was lodged on 19 March 2025, but the statutory 21-day period for filing such an application had expired by 7 February 2025. The matter was set down for a hearing on 27 May 2025 to determine if there were exceptional circumstances justifying an extension of time. However, the applicant did not file any material in response to the directions and did not appear at the hearing. Instead, the respondent applied to have the application dismissed for the applicant’s unreasonable failure to attend the hearing.

The legal issue before the Deputy President was whether the applicant’s failure to attend the hearing constituted an unreasonable failure under s.399A(1)(a) of the Fair Work Act 2009. This section allows the Fair Work Commission to dismiss an application if it is satisfied that the applicant has unreasonably failed to attend a conference or hearing in relation to the application. The respondent argued that the applicant’s non-attendance and lack of notice constituted an unreasonable failure, while the applicant did not appear or file any material in response. The Deputy President considered the notification of the hearing, the absence of the applicant, and the lack of notice from the applicant to determine whether the dismissal application should be dismissed.

The Deputy President concluded that the applicant had unreasonably failed to attend the hearing in relation to the application. Given the notification of the hearing, the applicant’s non-attendance, and the absence of any notice from the applicant that he was unable to attend, the Deputy President was satisfied that the applicant had unreasonably failed to attend a hearing in relation to the application. Therefore, the application for an unfair dismissal remedy was dismissed pursuant to s.399A(1)(a) of the Fair Work Act 2009.

Mr Jimi Clegg v Australian Wholistic Health & Wellbeing Company Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established