Ms Kirsty Buchanan v The Trustee for S and D Trust

[2025] FWC 383

[2025] FWC 383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Kirsty Buchanan
v

The Trustee For S And D Trust

(U2024/14617)

COMMISSIONER PLATT ADELAIDE, 10 FEBRUARY 2025

Application for an unfair dismissal remedy – s.399A application – application dismissed.

1. On 5 December 2024, Ms Kirsty Buchanan (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment with The Trustee For S And D Trust (the Respondent).

1. The matter was allocated to my Chambers on 16 January 2025.

1. On 16 January 2025, my Chambers issued a Notice of Listing with a date for Hearing and Directions for the filing of submissions, statements and supporting documents by no later than 4:00pm (SA) Thursday, 6 February 2025. The Applicant did not file any material by the timeframe required by the Directions or seek an extension of time.

1. I convened a Case Management Conference at 4:30pm (SA) Thursday, 6 February 2025. The Applicant did not attend that conference. At the conclusion of the conference, my Chambers emailed the parties and provided the Applicant with an extension of time until 4:00pm (SA) Friday, 7 February 2025 to file her material. No information was filed by the Applicant, nor was any correspondence received.

2. On 10 February 2025, the Respondent filed a s.399A application seeking that I dismiss the substantive s.394 application.

LEGISLATION

1. Section 399A of the Act is as follows:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

1. The FWC may exercise its power under subsection (1) on application by the employer.

1. This section does not limit when the FWC may dismiss an application.”

1. The Applicant failed to the attend the Conference on 6 February 2025 and despite being warned by my Chambers that a failure to comply would likely result in the application being dismissed, has not submitted her material for the substantive s.394 application. To date, the Applicant has not responded, nor has any reasonable excuse been proffered for the Applicant’s failure to engage.

1. It is apparent to me that the Applicant unreasonably failed to attend a conference and comply with directions. In my view, and taking into account the Respondent’s application, the circumstances above justify the dismissal of the application in accordance with s.399A, and I so order.

COMMISSIONER

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