Employer ignores Fair Work proceedings — ends up ordered to pay compensation
In Kate Southern v Lucky 88 Enterprises Pty Ltd, the employer failed to show up, respond, or provide any evidence, however, this case shows that ignoring the Commission doesn’t make unfair dismissal claims disappear. Instead, the matter proceeded without them, and the result was a comprehensive win for the employee — with compensation ordered.
This case shows two critical things: first, that an employer’s failure to participate won’t prevent the Fair Work Commission from making a decision; and second, that an employer can still be held fully accountable, including being ordered to pay compensation, even if they never appear.
Kate Southern worked full-time at a pet boarding facility in Melbourne operated by Lucky 88 Enterprises Pty Ltd. She was dismissed on alleged financial grounds, with her employer claiming a downturn in the industry. But Ms Southern didn't accept that reason — and what followed was a complete breakdown of proper process by the employer.
Importantly, the employer failed to attend conciliation, ignored directions, and didn’t attend two separate Commission hearings. Commissioner Wilson was left with only Ms Southern’s uncontested evidence — which the Commission accepted in full.
When employers don’t respond, the case still proceeds
The Commission made repeated attempts to contact the employer through various emails, phone calls, and even express post. Despite these efforts, Lucky 88 Enterprises ignored the proceedings and failed to provide any submissions or appear at either the 9 January or 20 January 2025 hearings.
The Commission made clear: it is fair and appropriate to proceed even without the employer’s participation. Ms Southern’s evidence was heard, accepted, and formed the basis for the decision.
Takeaway: The Fair Work Commission will proceed with an unfair dismissal application even if the employer fails to respond, attend hearings, or engage at all. As shown in this case, an employer’s silence does not stall or stop proceedings — it often strengthens the employee’s position. Ignoring a Commission matter is not a defence, and employers who do so risk having compensation orders made against them without ever being heard.
Not a genuine redundancy
While the employer claimed Ms Southern was let go due to financial difficulties, the Commission didn’t buy it. Ms Southern gave unchallenged evidence that:
She was told she was being dismissed due to “lack of work,”
Yet within her notice period, the employer was advertising for new roles,
After she left, several new employees were hired for similar work.
The Commission also found:
There was no consultation about the termination, which was required under the Miscellaneous Award,
No evidence that redeployment was ever considered,
No reliable proof that her role was genuinely no longer required.
The redundancy claim collapsed — and the Commission found the dismissal was not a genuine redundancy.
No valid reason, no procedural fairness
The Commission considered the usual unfair dismissal factors under s 387 of the Fair Work Act 2009 and made several key findings:
There was no valid reason for dismissal — the financial excuse didn’t stack up.
Ms Southern was not properly consulted, warned, or given a meaningful opportunity to respond.
She wasn’t offered support during the dismissal meeting and wasn’t told of her rights.
She was given a termination letter with generic language, but no proper justification.
While the employer might have claimed financial hardship, the facts suggested otherwise. The Commission found the dismissal to be harsh, unjust, and unreasonable.
Reinstatement was ruled out as inappropriate, particularly given the breakdown in the employment relationship and the employer’s complete disengagement from the proceedings.
Instead, the Commission ordered compensation based on the well-established Sprigg formula. Ms Southern was awarded $11,622 in compensation, and $1,337 in superannuation contributions. Despite finding new work, Ms Southern had moved from full-time to casual employment at a lower hourly rate, with no paid leave entitlements. The Commission accepted she had made genuine efforts to mitigate her loss.
Why this case matters
This case sends a strong message to both employers and employees.
For employees: Even if your employer tries to dodge the Commission or refuses to engage, your case can and will still be heard. The Commission will consider the facts before it — and if your dismissal was unfair, you can still win.
For employers: Ignoring a Commission application is not a strategy. It’s a serious misstep. If you fail to engage, you forfeit your chance to present your side, and the Commission may issue compensation orders in your absence. Silence can cost thousands.
