1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Stephanie Hausin
v
Healthcare Australia Pty Ltd
(U2024/5553)
COMMISSIONER SIMPSON BRISBANE, 25 OCTOBER 2024
Application for an unfair dismissal remedy – application dismissed
[1] On 16 May 2024, Mrs Stephanie Hausin (Mrs Hausin / the Applicant) made an
application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act
2009 (the Act) alleging that she had been dismissed from Healthcare Australia Pty Ltd (the
Respondent) and that her dismissal was harsh, unjust or unreasonable.
[2] On 30 May 2024, the Respondent filed a Form F3 employer’s response raising a
jurisdictional objection to the application on the basis that the Applicant’s dismissal had been
a genuine redundancy.
[3] The matter was allocated to me on 25 June 2024. The matter was listed for a Case
Management Conference/Directions Hearing (Directions Hearing) to commence at 2:00pm on
4 July 2024. On the morning of 4 July 2024, my chambers sent an email to the email address
listed on the Applicant’s Form F2 Application requesting she confirm her attendance and best
contact details for the Directions Hearing. The Applicant responded to chambers from that
email address later that morning to confirm her attendance and best contact number. Following
the Directions Hearing, I issued Directions for filing of material and set a hearing date.
[4] The Directions provided an opportunity for any party to file material in opposition of
any request for granting of leave for a representative to appear by Thursday 25 July 2024. On
25 July 2024, Mrs Hausin filed her response objecting to the Respondent’s submissions seeking
leave to be represented by a solicitor.
[5] The Applicant’s material was due to be filed on 1 August 2024. Mrs Hausin sent an
email on 2 August 2024 to chambers and the Respondent’s solicitor appearing to be in response
to an email sent by the Respondent’s solicitor directly to the Applicant requesting the
Applicant’s material if filed or otherwise when she expected to file her material. Mrs Hausin
copied in the Commission and apologised, noting she had thought she had sent the material the
day before but subsequently noticed the email was still in her email’s outbox, and attached her
witness statement.
[2024] FWC 2960
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 2960
2
[6] On 7 August 2024, my Chambers emailed parties proposing to facilitate the
Respondent’s adjournment request by relisting the matter to be heard on 27 August 2024 instead
of 22 August 2024. Parties were directed to confirm their availability by 4:00pm AEST 9
August 2024. The Respondent’s solicitor confirmed the Respondent’s availability on 27 August
2024. No response was received from the Applicant. On 9 August 2024, my chambers relisted
the matter to be heard on 27 August 2024.
[7] On 16 August 2024, the Respondent’s solicitor filed a Form F52 Application for an
order for production of documents, records or information to the Commission. I granted and
issued that Order (first production order) which required the Applicant to produce documents
to the Commission by 10:00am AEST on 21 August 2024. On 19 August 2024, the Applicant
filed a document setting out concerns in relation to the Order. I directed the Applicant to firstly
produce the relevant documents to Chambers by 10:00am AEST on 21 August 2024, after
which I would determine which documents produced were relevant to consideration of remedy.
The Applicant produced the documents by email to chambers at 7:29am AEST on 21 August
2024. I determined later that day that all documents produced by the Applicant were relevant
and my chambers then provided same to the Respondent in full.
[8] On the morning of 27 August 2024 at 7:44am AEST, my chambers received an email
from the Applicant stating that she would be unable to attend the hearing listed to commence
at 10:00am that day due to a family member’s medical emergency, that she would provide a
carer’s certificate, that she would be uncontactable until the evening due to the circumstances,
and requested the hearing “be postponed, even if it could be rescheduled for tomorrow.”
[9] At 9:26am that morning, my chambers sent an email to parties stating the following:
“The Commissioner notes the email correspondence received from the Applicant this
morning at 7:44am. The Applicant has advised that they are able to provide evidence to
support the reason for the adjournment request at a later time, and in the circumstances
the Commissioner has determined to grant the request for an adjournment on the basis
that material be will provided. The matter will be listed for a telephone directions
hearing at 2pm on Friday 30 August to settle a new date for hearing.”
[10] Upon the Respondent solicitor’s request, the Directions Hearing was relisted for 3pm
on Friday 30 August 2024.
[11] At 5:37pm on 28 August 2024, chambers received an email from the Applicant
providing a document she referred to as a carer’s certificate, and stating her family member’s
condition necessitated the presence of a carer for the upcoming week. The certificate dated 26
August 2024 stated an individual was suffering from a medical condition and would require a
carer from 26 August 2024 to 30 August 2024 and that the Applicant was the individual’s
nominated carer.
[12] At 9:53am on 30 August 2024, chambers received an email from the Applicant
informing chambers she would be unable to attend the directions hearing due to her family
member’s condition per the carer’s certificate. To date, this is the last communication my
chambers has received from the Applicant.
[2024] FWC 2960
3
[13] At 10:05am on 30 August 2024, my chambers sent an email to parties stating the
following:
“Dear Parties
The Commissioner is in receipt of the below email from the Applicant seeking an
adjournment of today’s listing.
The directions listing today is vacated and the Applicant is asked to notify Chambers
when she is able, of when she would be available to attend a listing.”
[14] On 11 September 2024, my chambers sent an email to parties seeking an update on when
the Applicant would be able and available to attend a hearing, suggesting 22 October 2024 as
the earliest available hearing date, and seeking parties’ confirmation of availability. On 13
September 2024, the Respondent’s solicitor confirmed availability. On 19 September 2024, my
chambers sent a follow-up email to parties noting the Applicant had not responded regarding
the suitability of the proposed date and that if she did not respond by 4:00pm AEST that day
the matter would be relisted for hearing on 22 October 2024. No response was received from
the Applicant and the matter was relisted.
[15] On 30 September 2024, the Respondent’s solicitor lodged a further Form F52
Application for the Applicant to produce documents. I considered the Application and issued
the Order to the parties that day (the second production order), which required the Applicant
to produce the documents to my chambers by 10:00am on 15 October 2024.
[16] My chambers did not receive any documents or correspondence from the Applicant in
response to the second production order issued by that time. At 1:43pm on 15 October 2024,
my chambers received an email from the Respondent’s solicitor. The Respondent’s solicitor
wrote as follows:
“I refer to the email from the Commission dated 30 September 2024 serving a copy of
Orders for Production on the Applicant in the above-mentioned proceedings.
On 3 October 2024, I wrote to the Applicant attaching a copy of the Orders and
requesting that she confirm receipt of the same. I did not receive a response to my email.
Accordingly, on 10 October 2024, I again wrote to the Applicant requesting that she
confirm receipt of the Orders. In that email, I also noted the emails from the Commission
dated 11 and 19 September 2042 seeking the Applicant’s confirmation as to her
availability for the hearing listed on 22 October 2024. I requested that the Applicant
advise her intentions in relation to the matter generally and her attendance at the hearing
in particular. As at the time of sending this email, I have not received a response to my
email dated 10 October.
The Order for Production of Documents required the Applicant to produce those
documents by 10am this morning, 15 October 2024. The Respondent has not been
served with any documents from the Applicant. In the event that the documents were
sent directly to the Commission without being copied to the Respondent, we respectfully
request that those documents be provided to the Respondent.
[2024] FWC 2960
4
In the event that the Applicant has not complied with the Orders for Production, and
noting the Applicant has not, so far as the Respondent is aware, confirmed her
availability for the hearing on 22 October 2024, I write to respectfully enquire as to the
possibility of the matter being listed for mention and/or directions at a time convenient
to the Commission this week, so that further directions can be made in relation to the
production of documents and the conduct of the hearing on 22 October 2024.”
[17] At 11:16am on 16 October 2024, my chambers wrote to parties as follows:
“Dear parties,
Chambers acknowledges receipt of the correspondence below from the Respondent’s
solicitor.
Chambers is not in receipt of any documents produced by the Applicant in response to
the Orders for Production issued on 30 September 2024. The Applicant is now non-
compliant with that Order.
The matter will be listed for a non-compliance and directions hearing by telephone
at 2:00pm AEST tomorrow, Thursday 17 October 2024.
A Notice of Listing will be issued shortly and parties are to confirm with chambers by
email their best contact telephone numbers for the non-compliance directions hearing
by close of business today.
In the interim between now and the non-compliance hearing tomorrow, the Applicant is
not prevented from providing reasons for her non-compliance and also is not prevented
from producing the documents subject to the Order for Production issued on 30
September 2024.”
[18] A Notice of Listing was subsequently issued to parties at 11:19am, including to the
Applicant via her email address listed on her Form F2 Application and which she otherwise had
previously used to correspond with chambers. The Notice of Listing again reminded parties to
confirm their attendance and best contact numbers by 5:00pm AEST that day.
[19] At 8:52am on 17 October 2024, my chambers sent an email to the parties noting the
Respondent had confirmed its attendees, and stated:
“Mrs Hausin, please confirm by no later than 10:00am Brisbane time today your
attendance and best contact telephone number for this afternoon’s non-compliance
hearing at 2:00pm Brisbane time as a matter of priority. Otherwise, you will be dialled-
in to the listing on the mobile number the Commission has on file for you.
[20] My chambers made four attempts to dial the Applicant on the mobile number listed on
her Form F2 Application into the non-compliance hearing by telephone listed at 2:00pm that
afternoon, without success. The first attempt at 1:55pm went to a voicemail inbox. The
Respondent party were then joined to the call for the non-compliance hearing, and then a second
[2024] FWC 2960
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attempt to join the Applicant was made shortly after 2:00pm, which again went to a voicemail
inbox.
[21] At 2:07pm, my chambers issued the following email to the Applicant with the word
‘urgent’ capitalised in the subject line:
“Dear Mrs Hausin,
The non-compliance hearing of your matter is commencing now. I have attempted to
dial you in on your mobile number [REDACTED] twice and have left a voicemail on
each occasion.
Please pick-up the call when dialled. If you are experiencing difficulties picking-up
calls, you can use the telephone number and conference ID below to dial yourself into
the non-compliance hearing by telephone.
[REDACTED] [REDACTED] [REDACTED] [REDACTED]
[REDACTED] [REDACTED] [REDACTED] [REDACTED]
[REDACTED] [REDACTED] [REDACTED] [REDACTED]
If Chambers does not hear from you by either telephone or email and if we are otherwise
unable to dial you into the non-compliance hearing, the non-compliance hearing will be
adjourned and the Commissioner may consider dismissing you matter under s.587 of
the Fair Work Act 2009 (Cth).”
[22] At approximately 2:14pm, my chambers made a third attempt to dial the Applicant
which again went to a voicemail inbox. My associate left a voicemail stating that it was the
third and final voicemail that would be left in an attempt to dial the Applicant into the non-
compliance hearing, and that one further attempt would be made in the following few minutes
to connect her, and that if she failed to pick-up the phone, the non-compliance hearing would
be adjourned and I would subsequently consider whether to dismiss her application. The
voicemail noted that an email had been sent providing her the option of dialling herself in or
otherwise replying to the email generally.
[23] At approximately 2:21pm, my chambers made a fourth and final attempt to dial the
Applicant which again went to a voicemail inbox. My chambers noted it was the fourth and
final attempt to join the Applicant to the non-compliance hearing and as she had failed to
respond or join the non-compliance hearing, it would be adjourned and she would receive
correspondence by email from chambers. The non-compliance hearing was then adjourned.
[24] At 12:30pm on 18 October 2024, my chambers sent the following email to the
Applicant:
“Dear Mrs Hausin,
As a matter of priority and by no later than 5:00pm AEST today, Friday 18
October 2024, the Commissioner seeks your reasons as to:
[2024] FWC 2960
6
• why you failed to attend the non-compliance hearing of your matter at 2:00pm
AEST (Queensland time) yesterday, Thursday 17 October 2024;
• why you have failed to produce documents in response to the Orders for Production
of 30 September 2024; and
• if you intend to pursue or withdraw your application.
Chambers notes the following steps were taken to facilitate your attendance at the non-
compliance hearing:
• The non-compliance hearing listed for your matter was scheduled to commence at
2:00pm AEST (Queensland time) yesterday, Thursday 17 October 2024;
• Chambers attempted to contact you on the mobile phone number written on your
Form F2 application four times, commencing at 1:55pm AEST;
• Voicemails were left informing you to pick-up the call when dialled to join the non-
compliance hearing;
• Chambers also provided you the option of dialling yourself into the non-compliance
hearing by telephone per the email below sent to you at 2:07pm AEST;
• On the fourth attempt to dial you into the non-compliance hearing at 2:21pm AEST,
a voicemail message was left informing you the non-compliance hearing would be
adjourned.
You ultimately failed to attend or communicate with chambers in response to any of the
prompts above. The Commission subsequently adjourned the non-compliance hearing
of your matter at approximately 2:25pm AEST.
If you do not respond to this email, the Commissioner will vacate the hearing of your
matter listed to commence at 10:00am AEST on Tuesday 22 October 2024 and will
consider dismissing your application under s.587 of the Fair Work Act 2009 (Cth).”
[25] The Applicant did not respond.
[26] At 9:37am on 21 October 2024, my chambers issued a Notice of Listing cancellation
vacating the hearing listed for 22 October 2024. At 09:39am, my chambers sent the following
email to the Applicant, with the words ‘Due ASAP – SHOW CAUSE – 12pm 22.10.2024 –
U2024/5553: Stephanie Hausin v Healthcare Australia Pty Ltd’ in the subject line:
“Dear Mrs Hausin,
Chambers is not in receipt of any correspondence from you indicating your intentions
with your application.
On that basis, the hearing of your matter originally listed to commence at 10:00am
AEST tomorrow has been vacated and will not proceed tomorrow.
The Commissioner directs you to indicate whether you intend to pursue or
withdraw your application by no later than 12:00pm (noon) tomorrow, Tuesday
22 October 2024.
[2024] FWC 2960
7
If you fail to respond to this email advising whether you intend to pursue or withdraw
your application by that time, the Commissioner will dismiss your application under
s.587 of the Fair Work Act 2009.”
[27] To date, chambers has not received any communication from the Applicant by email,
voicemail or telephone in response to chambers’ email of 21 October 2024 or more broadly
from the Applicant’s last email to chambers on 30 August 2024, and the Commission’s Registry
has not notified chambers of any incoming calls from the Applicant.
[28] Section 587 of the Act provides as follows:
“587 Dismissing applications
(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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair
dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application
under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[29] Section 593 of the Act provides that the Commission is not required to hold a hearing
except as provided by the Act.
[30] I note that the power to dismiss a substantive application should only be exercised
cautiously, not hastily, and where there is a clear basis for doing so.1 Such a decision results in
the extinguishment of a party’s application, which has been made in order to seek some form
relief from a beneficial statutory provision.2
[31] In L. Sayer v Melsteel Pty Ltd,3 the Full Bench held that s.587(1) provides for the
dismissal of a matter where the Applicant has failed to prosecute their case without examining
[2024] FWC 2960
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the merits. Deputy President Lake noted in his decision in Jason Chapman v CPB Contractors
Pty Limited [2024] FWC 219 at [14]:
“It has been determined in cases where the Applicant has still provided material to the
Commission, that an application may be dismissed when they fail to attend a hearing.
In Sayer v Melsteel [2011] FWAFB 7498, the Full Bench state at [16]-[17]:
“When, as in this case, the Applicant fails to attend to prosecute their
case and the matter is determined in their absence, assuming there is no denial
of natural justice... the fact that he did not attend to pursue his case meant that
there was no requirement to take that material into account. The respondent’s
case was, in effect, unchallenged.”
[32] The power to dismiss an application if the non-compliance was unreasonable is
discretionary. Notwithstanding the Applicant was previously engaged in prosecuting her matter
(including to the extent of filing material) as outlined in earlier in this decision, subsequent to
her last correspondence of 30 August 2024, the Applicant has since failed to respond to various
correspondence from chambers, failed to comply with the second production order I issued,
failed to attend the non-compliance hearing listed for 17 October 2024, and has failed to provide
any reasonable explanation to the Commission regarding these failures or otherwise convey her
intentions in relation to her application. On that basis, I regard the Applicant as now showing
no willingness to prosecute her case and having taken no steps to do so following her last
correspondence of 30 August 2024.
[33] In these circumstances, I am persuaded that I should exercise my discretion under s.587
of the Act and dismiss the Applicant’s application for want of prosecution pursuant to
s.587(3)(a) of the Act.
[34] An order to that effect will issue with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR780585
1 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
2 Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
3 [2011] FWAFB 7498 at [19].
OF THE SEAL WORK COMMISSION
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc219.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4399.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
