Mr Mitchell Russell v Richard John Smith

[2025] FWC 2182

[2025] FWC 2182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Mitchell Russell
v

Richard John Smith

(U2025/8648)

COMMISSIONER ROGERS ADELAIDE, 25 JULY 2025

Application under s. 399A – s. 399A application granted.

1. Mr Smith made an application under s. 399A of the Fair Work Act (the Act) to dismiss an unfair dismissal application brought against him by Mr Russell.

1. For the reasons set out below, Mr Smith’s application is granted and Mr Russell’s application for an unfair dismissal remedy is dismissed.

Procedural context

1. On 19 May 2025 Mr Russell lodged an unfair dismissal application under s. 394 of the Act, alleging that he was unfairly dismissed by Mr Smith.

1. Mr Smith filed a response to the application on 6 June 2025, objecting to the application on the basis that Mr Russell was not dismissed and his employment did not meet the minimum employment period.

1. A Directions Hearing was held on 16 June 2025 to set the matter down for determination. The Hearing was attended by Mr Russell’s representative and Mr Smith. Mr Russell did not attend himself.

1. Subsequently, the parties were issued a written copy of the Directions on 16 June 2025, which directed:

   ·           Mr Smith to file materials in support of his jurisdictional objection regarding the minimum employment period by 23 June 2025;

   ·           Mr Russell to file materials in response to this jurisdictional objection by 30 June 2025; and

   ·           The parties to attend a Determinative Conference on 7 July 2025.

1. On 19 June 2025 the Commission was advised that Mr Russell’s representative had ceased to act on his behalf.

1. Mr Smith complied with the Directions and filed materials on 23 June 2025. Mr Russell did not file any submissions by 30 June 2025, or at all.

1. Chambers emailed Mr Russell directing him to file his outstanding submissions as soon as possible, by no later than 1 July 2025. Mr Russell did not file any materials or contact the Commission.  

1. On 2 July 2025, Mr Smith objected to the Determinative Conference proceeding as listed for 7 July 2025.

1. The Commission attempted to contact Mr Russell on 3 July 2025. Mr Russell did not respond to three separate calls and a voice message requesting a return call to Chambers.

1. The matter was subsequently listed for a Non-compliance Hearing by telephone on 4 July 2025. Mr Smith attended the Hearing, but Mr Russell did not.

1. Mr Smith made an application on 9 July 2025 seeking that Mr Russell’s unfair dismissal application be dismissed under s. 399A of the Act, as a result of the unreasonable failure to comply with Directions and non-attendance at the Hearing.[1]

1. On 11 July 2025, Mr Smith’s application was served on Mr Russell and Chambers issued correspondence directing Mr Russell to file a response or any objections to the application by 18 July 2025.

1. The correspondence further advised that the Commission would proceed to deal with the application on the material before it if Mr Russell failed to respond to the application. Mr Russell did not file any materials or otherwise contact the Commission.

Consideration

1. As set out below, the process set out in Lockyer v Cox[2] for s. 399A applications has occurred in the present matter.

1. An application under s. 399A of the Act was made by Mr Smith using a Form F1.

1. Mr Russell was served a copy of the application and given an opportunity to respond to it.

1. Chambers advised Mr Russell that the Commission would proceed to deal with the application should he fail to respond to it.

1. Mr Russell did not file any materials opposing the application made under s. 399A of the Act, or any materials at all.

1. Accordingly, there were no facts in dispute and a Hearing was not required.

1. Mr Russell has unreasonably, without explanation, failed to comply with the Commission’s Directions dated 16 June 2025 and 11 July 2025. On 4 July 2025 Mr Russell failed to attend a Hearing by the Commission, again without explanation.

1. I am satisfied that Mr Russell was afforded ample opportunities to provide reasons for the non-compliance with Directions and non-attendance at the Hearing but failed to do so.

1. An opportunity was given to oppose the application under s. 399A of the Act made by Mr Smith but Mr Russell has not taken any action.

1. For those reasons, Mr Smith’s application under s. 399A of the Act is granted. Mr Russell’s application to remedy an unfair dismissal is dismissed pursuant to s. 399A (1) of the Act. An order giving effect to this decision will be issued in conjunction with its publication.[3]

COMMISSIONER

[1] the Act, s. 399A(1)(a)-(b).

[2] [2021] FWCFB 875 at [57].

[3] PR790065.

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