Said Aden v Portier Pacific Pty Ltd

[2025] FWC 3053

[2025] FWC 3053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Said Aden
v

Portier Pacific Pty Ltd

(UDE2025/166)

DEPUTY PRESIDENT MASSON MELBOURNE, 10 OCTOBER 2025

Application for an unfair deactivation remedy – application dismissed pursuant to s 536M of Fair Work Act 2009.

1. On 18 July 2025, Mr Said Aden (the Applicant) lodged an application pursuant to s 536LU of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair deactivation remedy. Portier Pacific Pty Ltd is the Respondent to the Application.

1. The matter was allocated to my Chambers on 12 August 2025, and directions were issued to the parties on 18 August 2025 setting down a timetable for a hearing and for the filing of material by both parties. The directions relevantly included the following; 

“……. 

SUBMISSIONS AND WITNESS STATEMENTS

4. The submissions must include all relevant facts, dates and incidents to support all claims made.

5. The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

6. Please note that witness statements are designed to take the place of evidence-in-chief.

… 

NON-COMPLIANCE WITH THESE DIRECTIONS

9. The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

10. Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

…” 

1. The Respondent filed its material in accordance with the directions. The Applicant failed to file his material by 5pm on 12 September 2025 as required by the directions and also failed to contact my Chambers to seek an extension of time. A non-compliance hearing was subsequently listed for 9.00am on 2 October 2025. The Applicant attended the non-compliance hearing but was unable to explain why he had failed to comply with the issued directions. The Respondent was represented at the non-compliance hearing by Ms Julia Leeds of Dentons Australia Limited who was granted permission to appear pursuant to s 596(2) of the Act. At the hearing, Ms Leeds made an oral application that the unfair deactivation application of the Applicant be dismissed pursuant to s 536M due to the Applicant having unreasonably failed to comply with directions of the Commission.

1. Following the non-compliance hearing, correspondence was sent by my Chambers to the Applicant on 2 October 2025 in the following terms;

   “Good morning Mr Aden,

Your non-compliance hearing was held today at 9am.

At today’s hearing, an application was made by the Respondent pursuant to s 536M(1) of the Fair Work Act 2009 (Cth) (the Act) that your application for an unfair deactivation remedy be dismissed due to:

·failing to comply with directions of the Commission to produce submissions by 12pm, Friday 12 September 2025.

For your reference, section 536M of the Act provides as follows:

………………

You may file submissions and any other material which you seek to rely on as to why your application for an unfair deactivation remedy should not be dismissed pursuant to s 536M of the Act by 5pm, Wednesday 8 October 2025.

Should either party seek to be heard in relation to the above they should contact Chambers. Otherwise, the matter will be dealt with on the papers.

Please note that pending the outcome of the s 536M application made by the Respondent, the directions have been vacated.”

1. No submissions were filed by the Applicant in response to the 2 October 2025 correspondence.

Consideration 

1. Turning now to whether the application should be dismissed, s 536M of the Act provides as follows:

“536M 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. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair deactivation remedy by 5pm, Wednesday 8 October 2025, I will determine the application on the papers.

1. The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to file his materials by 12 September 2025 and then failing to file any material in response to the s 536M application. He has not provided an acceptable explanation for his non-compliance despite being afforded an opportunity to do so. In all of these circumstances I am satisfied that the Applicant has unreasonable failed to comply with directions of the Commission.

1. In the circumstances I have decided to grant the Respondent’s application under s 536M(1), and the Applicants’ unfair deactivation remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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