Ms Carmen Chan v Art People Services Pty Ltd

[2025] FWC 2395

[2025] FWC 2395

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Carmen Chan
v

Art People Services Pty Ltd

(U2025/5119)

DEPUTY PRESIDENT EASTON SYDNEY, 18 AUGUST 2025

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

1. On 24 April 2025 Ms Carmen Chan made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging she had been unfairly dismissed from her employment with Art People Services Pty Ltd.

1. A conciliation conference was scheduled for 18 June 2025 however Ms Chan did not attend the conference. The staff conciliator’s file note said:

   “I attended the online conference and the Respondent was present.  The Applicant was not present in the conference, and I advised the Respondent I would try and call her in.  I made several attempts and left several messages.  On one occasion I could hear a voice, but they hung up.  I again checked the number - and it was the number provided by the applicant.  I continued to try calling but it went to message bank and I left messages.  I waited for 30 minutes and then explained the process moving forward for the Respondent.  The matter could not proceed today.”

1. On 30 June 2025, Art People Services filed an application pursuant to s. 399A(1)(a) of the Act to dismiss the application.

1. Directions were made that invited Ms Chan to provide evidence and submissions regarding the Respondent’s application. Ms Chan did not respond to those directions.

1. Section 399A of the FW Act provides:

“399A    Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.

…
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”

1. In this matter there are no facts in dispute that require me to conduct a hearing (per s.397).

1. Quite obviously Ms Chan has “failed to attend a conference conducted by the FWC” (per s399A(1)(a)). However Ms Chan’s application can only be dismissed if she “unreasonably” failed to attend a conference conducted by the FWC.

1. Ms Chan has had ample opportunity to explain her failure but has not done so. Crucially, Ms Chan has also had the opportunity to make a submission about whether her application should be dismissed under s.399A.

1. Ms Chan has not provided any evidence or explanation that would suggest that her failure to attend the conference was reasonable. In fact it appears that Ms Chan has abandoned her application.

1. In the circumstances I am satisfied that Ms Chan’s application should be dismissed.

1. I make the following order:

The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Carmen Chan on 24 April 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR790739>