Shane Murphy v Banhams WA Pty. Ltd
[2025] FWC 1054
•15 APRIL 2025
| [2025] FWC 1054 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
Shane Murphy
v
Banhams WA Pty. Ltd.
(U2025/2103)
| DEPUTY PRESIDENT BINET | PERTH, 15 APRIL 2025 |
Application for an unfair dismissal remedy - Application by the Respondent pursuant to section 399A of the Fair Work Act – Application dismissed.
On 24 February 2025, Mr Shane Murphy (Mr Murphy) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Banhams WA Pty Ltd (Banhams).
On 13 March 2025, Banhams filed a Form F3 - Employer response to unfair dismissal application which did not raise any jurisdictional objection to Mr Murphy’s Application.
The Application was listed for a conference with a staff conciliator on 18 March 2025. Mr Murphy failed to join the conference at the nominated time. When contacted by the staff conciliator after the commencement of the Conference he declined to participate in the conference.
The Application was allocated to my Chambers for determination.
A Notice of Listing was issued to parties on 31 March 2025, for a conference on 9 April 2025 (Conference).
Mr Murphy did not attend the Conference and did not seek an adjournment before the commencement of the Conference.
Later in the day on 9 April 2025 Mr Murphy forward a medical certificate to Chambers certifying him unfit for work on 9 April 2025. The certificate did not identify the nature of his illness or injury. Mr Murphy provided no explanation as to why his illness or injury prevented him attending the Conference or why his illness or injury prevented him seeking an adjournment of the Conference prior to its commencement.
On 10 April 2025, Banhams made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Murphy failed to comply with the Notice of Listing to attend the Conference (Dismissal Application).
Mr Murphy was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on 14 April 2025. Chambers advised Mr Murphy that if he did not file submissions and evidence by 4pm on 14 April 2025, the Application would be dismissed pursuant to section 399A of the FW Act.
No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr Murphy by 4pm on 14 April 2025, or since.
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.
Note 1: for other 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).
(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.”
As at the date of this decision Mr Murphy has still not filed any materials in response to the Dismissal Application. I am satisfied that Mr Murphy failed to attend a conference conducted by the FWC in relation to the Application. On the application of Banhams and in the exercise of my discretion under section 399A(1) of the FW Act I have decided to dismiss the Application.
An Order to this effect will be issued with this decision.[1]
DEPUTY PRESIDENT
Appearances:
Conference details: Wednesday, 9 April 2025 at 11:00am AWST
Final written submissions: N/A
Printed by authority of the Commonwealth Government Printer
<PR786119>
[1] Print PR786120.
Printed by authority of the Commonwealth Government Printer
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