Che Gadenne v Radio Canberra Pty Ltd

[2024] FWC 2632

[2024] FWC 2632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Che Gadenne
v

Radio Canberra Pty Ltd

(U2024/8457)

COMMISSIONER SLOAN SYDNEY, 24 SEPTEMBER 2024

Application for an unfair dismissal remedy – section 399A application to dismiss – application granted

1. On 20 July 2024, Che Gadenne filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Act).[1] The respondent, Radio Canberra Pty Ltd (Radio Canberra), has applied to have the application dismissed pursuant to s 399A.

1. I have determined to grant Radio Canberra’s application and to dismiss the proceedings. These are my reasons.

Background

1. Radio Canberra raised a jurisdictional objection to the unfair dismissal application, namely that it had been filed out of time. On 4 September 2024 I made directions to prepare for the hearing of the jurisdictional objection. The directions were communicated to the parties that day by email.

1. Under the directions, Mr Gadenne was to file and serve an outline of submissions, written statements and other documentary material on which he intended to rely in respect of the jurisdictional objection by 4.00pm on 13 September 2024. He did not do so.

1. An email was sent by the Commission to Mr Gadenne at 9.36am on 16 September 2024, directing him to advise the Commission by 1.00pm that day whether he intended to proceed with the matter and, if so, the reasons for which he had failed to comply with the directions. Mr Gadenne did not respond to that email.

1. A further email was sent by the Commission to Mr Gadenne on 16 September 2024. The Commission received no response.

1. An email was sent by the Commission to the parties at 2.11pm on 17 September 2024. It noted that there had been no response from Mr Gadenne to the second email of 16 September 2024 and enquired whether Radio Canberra wished to make an application under s 399A(2). The email stated that, given the situation, any such application could be made by way of return email.

1. The Commission received an email from the solicitors for Radio Canberra at 2.21pm on 17 September 2024. The email contained a “formal application” under s 399A(2) for the Commission to exercise its powers under s 399A(1) to dismiss the unfair dismissal application.

1. I arranged for an email to be sent to Mr Gadenne at 3.28pm on 17 September 2024 in the following terms:

“Dear Mr Gadenne

You will have seen from the email below that Radio Canberra Pty Ltd has made an application for these proceedings to be dismissed pursuant to s 399A of the Fair Work Act 2009.

In keeping with the guidance of the Full Bench in Lockyear v Graeme Cox[2021] FWCFB 875 at [57], Commissioner Sloan wishes to give you an opportunity to respond to the s 399A application.

You are directed to file and serve, by 4.00pm on 20 September 2024, any submissions you wish to make to address the s 399A application.

Should you elect not to file and serve any submissions, the s 399A application will be determined ‘on the papers’ – that is, without a hearing – without further recourse to you.”

(Emphasis in original)

1. Mr Gadenne did not respond to that email.

Determination

1. Section s 399A(1) enables the Commission to dismiss an unfair dismissal application if the employer applies under s 399A(2) for it to do so. The grounds on which the Commission may dismiss an unfair dismissal application include the Commission being satisfied that the applicant has unreasonably “failed to comply with a direction or order of the FWC relating to the application” (s 399A(1)(b)).

1. Section 593(1) provides that the Commission is not required to hold a hearing except as provided by the Act. There are no facts in dispute in respect of Radio Canberra’s dismissal application that would require the Commission to conduct a hearing of the application under s 397.

1. Section 399A(2) is obviously satisfied by Radio Canberra’s application. Section 399(1)(b) is satisfied by Mr Gadenne’s failure to comply with directions, as described above. The jurisdictional pre-requisites for Mr Gadenne’s unfair dismissal application to be dismissed are met.[2] It is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly, because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’.[3]

1. Numerous attempts have been made to contact Mr Gadenne. He has failed to engage with the application or with repeated attempts to make contact with him, has shown no willingness to prosecute his case and has taken no steps to do so.

1. In these circumstances, I have determined to grant Radio Canberra’s application under s.399A(2). I order that Mr Gadenne’s unfair dismissal application be dismissed pursuant to s 399A(1).

COMMISSIONER

[1] All legislative provisions referred to in this decision are references to provisions of the Fair Work Act 2009.

[2] Lockyear v Graeme Cox[2021] FWCFB 875 at [55]

[3] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31]

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