1 Fair Work Act 2009 s.394—Unfair dismissal Krystl Brown v State of Victoria (Department Of Education) (U2025/20321) DEPUTY PRESIDENT MASSON MELBOURNE, 8 MAY 2026 Application for an unfair dismissal remedy – application dismissed pursuant to s 399A of Fair Work Act 2009 [1] On 22 December 2025, Ms Krystl Brown (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which she asserts that the termination of her employment with the State of Victoria (Department of Education) (the Respondent) was unfair. [2] The matter was allocated to my Chambers on 25 February 2026. Directions were issued to the parties on the 26 February 2026 that provided the Applicant with five weeks to prepare and file her material on or by 5.00pm on 2 April 2026. [3] At a Mention conducted on 19 March 2026, the Applicant’s then representative sought and was granted an additional week for the Applicant to file her material, with her new filing date being on or by 5.00pm on 9 April 2026. The importance of complying with filing dates was emphasised with both parties during the Mention, as was the process to be followed if a party was unable to comply with a filing date. Amended directions were issued to the parties on 20 March 2026 relevantly included the following information; “…….. SUBMISSIONS AND WITNESS STATEMENTS [3] The submissions must include all relevant facts, dates and incidents to support all claims made. [4] 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. [5] Please note that witness statements are designed to take the place of evidence-in-chief. [2026] FWC 1664 DECISION [2026] FWC 1664 2 … NON-COMPLIANCE WITH THESE DIRECTIONS [8] 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. [9] 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. …” [4] On 7 April 2026, the Applicant’s legal representative filed an F54 form advising that he had ceased to act for the Applicant. The Applicant failed to file her material by 5pm on 9 April 2026 as required by the directions. [5] On 10 April 2026, the Applicant wrote to my Chambers seeking an extension of time to file her material. She set out the reasons for seeking an extension of time which included serious personal circumstances, that being her partner having suffered a severe motorbike accident resulting in him being placed in a coma for four weeks and requiring ongoing care and her full- time attention. She also raised the withdrawal of her legal representative from acting on her behalf, the volume and complexity of the documentation involved and the interests of procedural fairness. [6] Taking into account the matters raised by the Applicant, I granted her an extension of time with the new filing date for her material being 23 April 2026. In granting an extension of time, the Applicant was advised in an email on 10 April 2026 that no further extension of time was likely to be entertained. The Applicant failed to file her material by the new filing date or contact my Chambers in advance of that date to seek a further extension of time. [7] On 24 April 2026, the Respondent wrote to my Chambers requesting advice as to whether the Applicant had filed her material as required and if she had not requested that the Commission consider exercising its discretion to dismiss the Applicant’s unfair dismissal application pursuant to s 399A of the Act. [8] On 27 April 2026, correspondence was sent to the parties noting that the Applicant had failed to file her material in accordance with the amended directions and that a Non-compliance Hearing would be held on 30 April 2026. [9] Following the issuing of the Non-compliance Hearing listing, the Applicant sent an email to my Chambers on 27 April 2026 requesting a further extension of time and the vacating of the Non-compliance Hearing. The Applicant acknowledged the missed deadline, attributed that to her error and claims that a request for an extension of time had been prepared by her on 23 April 2026, believed the request had been sent but subsequently identified that an issue with her email system resulted in the email not being transmitted. The Applicant also referred to her partners ongoing medical condition, his care needs, and her attendance at a funeral on Friday [2026] FWC 1664 3 24 April 2026. In relation to her partner’s medical condition, the Applicant provided a medical certificate which indicated her partner had suffered severe injuries as a result of his motorcycle accident on 28 February 2026 and was currently undergoing inpatient rehabilitation; that he had been in a five week coma and that the Applicant had been integral to his care, communication with his treating team, and supporting his rehabilitation engagement. The medical report opined that a short extension of 3-4 days was clinically justified. [10] The Applicant’s request for vacating of the Non-compliance hearing was rejected, and it was confirmed in correspondence from my Chambers on 27 April 2026 that the Non- compliance hearing would proceed on 30 April 2026. [11] The Non-compliance hearing proceeded, at which the Applicant and Respondent both attended. The Respondent was granted permission to be represented by Mr John Monroe of K&L Gates pursuant to s 5956(2)(a) of the Act. At the hearing on 30 April 2026, the Respondent pressed its request for dismissal of the Applicant’s unfair dismissal application pursuant to s 399A of the Act. After hearing from both parties, I advised that submissions and any other material relied upon would be sought from both parties in respect of the Respondent’s s 399A application. Correspondence was subsequently sent to the parties on 30 April 2026 in the following terms; “Dear Parties, I refer to the hearing conducted today by Deputy President Masson this afternoon. As the Deputy President advised, the Respondent has made an application pursuant to s 399A of the Fair Work Act 2009 (the Act) that Ms Brown’s unfair dismissal application be dismissed. The relevant provisions of the Act under which the Respondent’s application has been made are 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 ………….… (2) The FWC may exercise its power under subsection (1) on application by the employer. [2026] FWC 1664 4 (3) This section does not limit when the FWC may dismiss an application.” The parties are directed to file submissions and any other material on which they seek to rely on in relation to the s 399A application as follows; (1) The Respondent is required to file its material on or by 5.00pm on Monday 4 May 2026; and (2) The Applicant is required to file her material in reply on or by 5.00pm on Wednesday 6 May 2026. Should either party seek to be further heard on the s 399A application they are required to advise Chambers on or by midday on Thursday 7 May 2026. The s 399A application will otherwise be determined on the papers. ………….” [12] Both the Respondent and Applicant filed submissions in accordance with the above directions. Neither party sought to be further heard. [13] In filing her submissions in respect of the s 399A application by the Respondent, the Applicant included an F52 application for orders for the production of documents. The F52 seeks the production of a broad range of documents associated with the investigation of the alleged conduct that led to the Applicant’s dismissal. [14] In resisting the dismissal of her unfair dismissal application pursuant to s 399A the Applicant raised the following matters; • she has not abandoned the proceedings; • she has been self-represented or had limited access to representation at key times since she filed her application; • the Respondent’s own approach to its investigation of her conduct that led to her dismissal was characterised by long delays; • she now seeks various records going to the Respondent’s investigation and dismissal decision; • the Respondent would not suffer any prejudice if a further extension of time were provided; • she disputes any assertion that her application lacks merit; and • raises various matters going to the procedural fairness of her dismissal. [2026] FWC 1664 5 Consideration [15] Turning now to whether the application should be dismissed, s 399A of the Act provides 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. …… (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.” [16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As neither party sought to be further heard on the s 399A application I will determine the application on the papers. [17] The Applicant has now failed to comply with directions of the Commission on a number of occasions. She has done so by failing to file her materials by the initially revised filing date of 9 April 2026. This non-compliance was in circumstances where an extension of the initial filing date of 2 April 2026 was sought and granted at the Mention conducted on 19 March 2025. She then failed to file her material by the further revised filing date of 23 April 2026. In both of these instances of non-compliance, the Applicant did not notify Chambers of her inability to meet the filing date requirement prior to those dates. That is despite that requirement being set out in the various Directions and despite the importance of filing date compliance being emphasised during the 19 March 2026 Mention. [18] I acknowledge that the Applicant’s personal circumstances have been difficult, arising from the serious injuries sustained by her partner on 28 February 2026 and his ongoing care needs. Those circumstances were raised by the Applicant on 10 April 2026 and were taken into account in granting a further extension of time to the 23 April 2026 for her to file her materials. While some medical information has now been provided, it does not explain how those circumstances prevented the Applicant from preparing her materials, particularly in circumstances where she lodged her application in the Commission on 22 December 2025 and the Directions were initially issued on 26 February 2026, almost 10 weeks ago. [2026] FWC 1664 6 [19] The Applicant has also raised a number of further matters in her submissions filed on 6 May 2025. Most of the matters raised by her in those submissions go to circumstances that arose prior to her dismissal, including the delays in conclusion of the Respondent’s investigation of her conduct. She also claims that she has been prevented or frustrated in her attempts to obtain information necessary to prepare her case, that her case has merit and that her dismissal was procedurally unfair. The following may be said about these points. [20] Firstly, the alleged delays in the Respondent finalising its investigation and the disciplinary process in respect of the Applicant are not in my view relevant to the reasons for the Applicant’s failure to comply with directions of the Commission. As earlier stated, the Applicant was dismissed on 22 December 2025 and was on notice of filing date requirements as early as 26 February 2026. She has had considerable time to prepare her case, notwithstanding any delays she may have experienced during the disciplinary process prior to her dismissal. [21] Secondly, her complaint about access to records of the Respondent does not explain her failure to comply with the filing directions. Applications for orders for production of documents could and should have been made at a much earlier point in time if the Applicant were genuinely concerned about the preparation of her case. In fact, the Commission’s records reveal that she was advised by my Associate in a telephone conversation on 9 April 2026, of her ability to lodge an F52 application if she had been unable to obtain relevant documents directly from the Respondent. The fact that she did not do so at the time of that conversation and only filed the F52 when confronted with the prospect of the dismissal of her application, tells against the submission she now makes. [22] Thirdly, during the Non-compliance hearing held on 30 April 2026, the Applicant claimed to be in a position to file her material. In light of the F52 application now filed and the broad range of documents sought, that statement is revealed to be, in my view, disingenuous. Supporting my view is her fresh request that the matter be listed for ‘further directions or hearing as appropriate.’ That belated request appears to ignore the fact that the matter was subject to a Mention on 19 March 2026 at which the Directions were discussed and amended as requested by her then representative. It also ignores the fact that the matter was also listed for hearing on 8 & 9 June 2026, of which dates she was fully aware of at the time of the 19 March 2026 Mention. [23] Fourthly, the Applicant contends that the merit of her case tells in favour of rejecting the Respondent’s s 399A application. I do not regard the contended merit of her case to be a relevant consideration. It does not go to whether her failure to comply with directions of the Commission was unreasonable. That requires examination of her non-compliant conduct, not the merit of her case. The same comment is made in respect of the alleged procedural unfairness of her dismissal. That goes to consideration of the merit of her case, not to her non-compliance with the directions of the Commission. [24] It follows from the foregoing that I am not satisfied that the Applicant has provided an acceptable explanation for her non-compliance despite being afforded an opportunity to do so. In these circumstances, I am satisfied that the Applicant has unreasonably failed to comply with directions of the Commission. [2026] FWC 1664 7 [25] In the circumstances of unreasonable non-compliance of the Applicant with directions of the Commission I have decided to grant the Respondent’s application under s 399A(1), and dismiss the Applicants’ unfair dismissal remedy application. An Order giving effect to this decision will be issued with this decision. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR799846>