Non-compliance with “complex and burdensome” directions decision quashed

When proceedings are underway with the Fair Work Commission (FWC), parties must comply with the FWC’s directions. Failure to do so may result in loss of a case or the application being thrown out. But what if those directions are unreasonably onerous? This was a question recently considered by the FWC Full Bench when an unfair dismissal applicant sought permission to appeal a decision to throw out her application for non-compliance with directions.

In Caitlin White v Hunter Madison Holdings Pty Ltd (2026), a payroll specialist brought unfair dismissal proceedings after her employer dismissed her following allegations of misconduct.

The employee’s application was dismissed without being determined on its merits due to the view of the FWC Deputy President that she had failed to comply with the FWC’s procedural directions.

The employee sought permission to appeal from the Full Bench.

What directions was the employee given?

Following a conciliation conference that failed to resolve the dispute, the Deputy President issued directions to the parties in an email attachment. The 17-page document included the directions for the employee to file the following (quoted):

Submissions in relation to the merits of the Application which addresses the matters in the attached Checklist and Compensation Guide.
A signed and dated witness statement for any witness to be called in relation to the merits of the Application.
A signed and dated witness statement setting out [her] evidence in relation to the merits of the Application.
A copy of any authorities relied on in relation to the merits of the Application. Relevant authorities are decisions of the FWC and other Courts and Tribunals who have considered the legal principles relied on in the written submissions. Examples of relevant authorities are contained in the Unfair Dismissal Bench Book available on the FWC website: www.fwc.gov.au.
A copy of any document relied on in relation to the merits of the Application.
Document List which lists each document which is filed and contains a description of each document, the date of each document and the length in pages of each document (so the documents can be readily identified). A template document list is attached.

The document also directed the employee and employer to jointly prepare a statement on agreed facts, and a digital court book merging the statement and both parties’ submissions, authorities, witness statements and documents into a single pdf with continuous numbering.

The employee was given a week to comply with the directions.

What did the employee provide?

Within the timeframe afforded her, the employee filed:

a document explaining the merits of the application;
a document outlining the events, timelines and evidence; and
copies of communications that took place prior to her dismissal.

Her documents included responses to the allegations relied upon to justify her dismissal in the letter of employment termination, and a list of six previous decisions of the FWC that she relied upon, including a short summary of each decision.

The following day, the employee was advised her submissions did not comply with directions because: “There are no signed and dated witness statements. There is no document list and there is reference to documents in the Submissions that have not been provided. Copies of the authorities upon which the Applicant relies in the submissions have not been provided.”

Following some back-and-forth communication, in which the employee requested clarification, the Deputy President dismissed the case for non-compliance with directions.

What was decided when the employee sought permission to appeal?

The Full Bench found that it was in the public interest to grant permission to appeal since the appeal raised “issues of importance in relation to the Commission’s unfair dismissal jurisdiction as well as in relation to the approach to be adopted when a member of the Commission is considering whether an application should be dismissed, without determination on the merits, on account of a failure to comply with procedural directions.”

The Full Bench determined that the directions issued to the employee were “so complex and burdensome as to their content and timeframe that, particularly if she was required to achieve a standard of strict compliance with the requirements imposed, [the employee] was deprived of a fair opportunity to have her case heard.”

As such, the appeal was allowed and the decision of the Deputy President to dismiss the unfair dismissal application was quashed. The Full Bench remitted the application to be heard by another FWC member.

Don’t let your guard down when it comes to plant safety
A small family-run Queensland abrasive blasting company was fined $100,000 and ordered to pay legal costs, following a workplace incident where a worker suffered significant injuries to his foot as a result of an unguarded auger ...