When an Unfair Dismissal Case Collapses Before It BeginsWhy Representation Matters – Hendy v Drum Express Group Pty Ltd [2026] FWC 1

The Fair Work Commission’s decision in Hendy v Drum Express Group Pty Ltd [2026] FWC 1 is not a judgment about whether a worker was treated unfairly at work.

Instead, it is a textbook example of how an unfair dismissal application can fail entirely on procedural grounds, without the Commission ever examining the dismissal itself.

For MYUNION members and workers more broadly, this case highlights a critical lesson:even a potentially valid unfair dismissal claim can be lost without representation, structure, and active case management.

When an Unfair Dismissal Case Collapses Before It BeginsWhy Representation Matters – Hendy v Drum Express Group Pty Ltd [2026] FWC 1

What This Case Was (and Was Not) About

Mr Daniel Hendy lodged an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth).

What is important to understand at the outset is this:

• The Commission did not decide whether Mr Hendy was unfairly dismissed.

• The Commission did not assess the employer’s conduct.

• The Commission did not make findings about harshness, injustice, or reasonableness.

The application was dismissed before any of those issues were considered.

How the Case Unravelled

After the application was lodged, the matter followed the usual early procedural steps:

• the employer corrected its legal identity;

• a conciliation conference was conducted (without settlement); and

• the matter was listed for a directions hearing.

At that point, everything depended on basic procedural compliance.

Mr Hendy failed to attend the directions hearing. The Commission attempted to contact him multiple times by phone. The number appeared to be disconnected.

Chambers then sent emails:

• requesting an explanation for the non-attendance; and

• warning that the application may be dismissed if there was no response.

A further email and text message were sent explicitly advising that dismissal under section 587 of the Act was being considered and inviting submissions as to why that should not occur.

No response was ever received.

The Commission’s Power to Dismiss Applications

The Fair Work Commission relied on section 587 of the Fair Work Act 2009, which allows it to dismiss applications in circumstances including where:

• the application has no reasonable prospects of success; or

• the applicant has effectively stopped prosecuting their case.

Critically, section 587 allows the Commission to act on its own initiative, provided procedural fairness is afforded.

In this case, procedural fairness was clearly provided:

• repeated contact attempts;

• written warnings;

• clear deadlines; and

• an explicit invitation to respond.

  
  

The Key Authority: Viavattene v Health Care Australia

Commissioner Simpson relied on the Full Bench authority of Viavattene v Health Care Australia [2013] FWCFB 2532.

That decision confirms a blunt but important principle:

If an applicant’s conduct shows they are no longer willing to participate in their own case, the Commission is not required to continue it for them.

This authority is frequently relied upon where applicants disengage, miss hearings, or fail to respond to correspondence.

The Commission applied that principle directly to Mr Hendy’s situation and concluded that the application had likely been abandoned.

Why Representation Would Have Changed Everything

This decision did not turn on law. It turned on process.

With representation:

• attendance at the directions hearing would have been ensured;

• the Commission would have had a reliable point of contact;

• any personal or logistical issues could have been explained;

• procedural deadlines would have been managed; and

• the case would have progressed to a substantive hearing.

Instead, the application ended without the worker ever having their dismissal examined.

This is one of the most common ways unfair dismissal applications fail — not because the worker is wrong, but because the process is unforgiving.

A Hard Truth About the Fair Work Commission

The Fair Work Commission is accessible, but it is not passive.

It will:

• expect applicants to comply with directions;

• assume responsibility lies with the party who commenced proceedings; and

• dismiss matters where applicants disengage, even unintentionally.

The Commission does not chase applicants indefinitely, and it does not excuse silence.

The Outcome

The application was dismissed in full under section 587. The case ended without any findings on the merits.

MYUNION’s View: This Case Was Avoidable

At MYUNION, we regularly see workers lose otherwise arguable unfair dismissal claims because they underestimate the procedural demands of the Commission.

This decision is a clear example of why representation matters:

• not just for legal argument;

• but for keeping the case alive.

Unfair dismissal rights only exist if they are properly pursued.

If you are thinking of lodging — or have already lodged — an unfair dismissal application, this case should serve as a warning.

Process matters. Deadlines matter. Attendance matters.And representation can be the difference between having your case heard — or never getting that chance at all.

MYUNION publishes these decisions to ensure workers understand not just their rights, but the real risks of navigating the system alone.