A worker who told the Fair Work Commission he had not received any of its correspondence was warned in the same phone call that his case could be dismissed if he did not attend that afternoon’s hearing. He did not attend. He then let a final deadline pass without a word, and Commissioner Connolly dismissed his unfair dismissal claim against Van Schaik’s Bio Gro Pty Ltd for want of prosecution (that is, because he failed to pursue the case he had brought).
The worker applied under s.394 of the Fair Work Act 2009 on 1 July 2026. On 28 August 2026 the Commission set a case management conference for 22 September 2026 and issued directions for the parties to file material. His material was due by 4pm on Friday, 18 September 2026. None was filed, then or later.
Chambers gave him until 4pm on 21 September 2026 to comply. When nothing arrived, the 22 September conference was converted into a non-compliance hearing (a listing to deal with a party’s failure to follow directions). The worker did not attend and the hearing did not proceed.
A second non-compliance hearing was set for 3:30pm on 29 September 2026. Chambers phoned the worker that day. He said he did not know about the directions or the hearing. During the call, the Commissioner’s associate warned him the matter could be dismissed if he stayed away. He did not attend, and the hearing went ahead without him.
- 1 Jul 2026 Unfair dismissal application made under s.394.
- 28 Aug 2026 Directions issued; conference listed for 22 September.
- 18 Sep 2026 Filing deadline passes; extended to 21 September.
- 22 Sep 2026 First non-compliance hearing; worker absent, hearing does not proceed.
- 29 Sep 2026 Phone call with chambers; worker absent from second hearing; employer applies for dismissal.
- 6 Oct 2026 Deadline to show cause passes with no response.
- 7 Oct 2026 Application dismissed.
Van Schaik’s Bio Gro, represented by Gilchrist Connell, applied at that hearing to have the claim dismissed under s.399A, which allows the Commission to dismiss an unfair dismissal application where the applicant has unreasonably failed to attend a conference or hearing or to comply with a direction.
After the hearing, chambers emailed the worker directing him to file reasons why his application should not be dismissed, with any supporting evidence, by 4pm AEST on Tuesday, 6 October 2026. The email warned that if he did not, “it is very likely that your case will be dismissed without further notice.” No response came, and the Commission received no further communication from him after the 29 September phone call.
The order was made under s.587(3)(a), which allows the Commission to dismiss an application on its own initiative, not under s.399A. Citing the Full Bench in Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153, the decision states that the three grounds for dismissal listed in s.587(1) are not exhaustive, and that dismissal for want of prosecution relies on the wider discretion in the section’s opening words.
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act; or (b) the application is frivolous or vexatious; or (c) the application has no reasonable prospects of success. … (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application.
The Commissioner acknowledged the Full Bench’s warning in Raschilla v Ausino West Pty Ltd [2017] FWCFB 5952 that the dismissal power should be used carefully, since such an order ends an applicant’s chance to have the claim decided. Even so, the Commissioner found the worker had “clearly demonstrated an unwillingness to prosecute his case”. “The principle of ‘a fair go all round’ applies to both employers and employees,” the decision states. According to the decision, the worker’s failure to take part had already forced the employer to spend resources on a claim he “appears to have had no intention of following through”, and he had effectively abandoned it.
The decision, [2026] FWC 3841, was handed down in Melbourne on 7 October 2026.
Source: [2026] FWC 3841
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