Joshua Lazarus v Pulse Interactive Pty Ltd Summary

[2013] FWC 8161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Lazarus
v
Pulse Interactive Pty Ltd
(U2013/10263)

COMMISSIONER DEEGAN

CANBERRA, 22 OCTOBER 2013

Application for relief from unfair dismissal - s.399A application.

[1] On 6 June 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Joshua Lazarus (the applicant) alleging he had been unfairly dismissed by Pulse Interactive Pty Ltd (the employer)

[2] The matter was listed for telephone conciliation on 17 July 2013 but could not take place as the applicant was unable to be contacted. Accordingly, the matter was referred for formal proceedings.

[3] Directions were issued on 23 July 2013 requiring the applicant to file with the Commission and serve on the respondent an outline of submissions and evidentiary materials in support of his application by no later than 5pm Tuesday, 18 August 2013. The applicant failed to comply with these directions.

[4] From 22 August 2013, numerous attempts were made to contact the applicant regarding his non-compliance and messages were left on the applicant’s phone requesting him to contact the Commission.

[5] As the applicant did not contact the Commission as requested, an email was sent on 30 August 2013 advising him to contact the Commission immediately if he wished to pursue his application. Again, no contact was made.

[6] On 18 September 2013, the employer lodged an application pursuant to s.399A of the Act requesting that the matter be dismissed on the basis that the applicant had failed to comply with the directions. The matter was then set down for hearing of the s.399A application and a notice of listing was issued which noted that failure to participate in the telephone hearing will result in the dismissal of the application for unfair dismissal remedy.

[7] The hearing subsequently took place on 11 October 2013 and the applicant was unable to be contacted.

[8] Section 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

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

[9] As a consequence of the applicant’s failure to pursue his application, provide reasons for his failure to comply with directions and participate in the hearing of the s.399A application, I have decided to dismiss his application for unfair dismissal remedy. An order [PR543464] dismissing the application is published separately.

Appearances:

No appearance for the applicant.

Ms A. Labunda, for the respondent.

Hearing details:

2013.

Canberra:

October 11 (by telephone)

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court of Australia, the matter of Joshua Lazarus versus Pulse Interactive Pty Ltd was heard. The applicant, Mr. Lazarus, sought relief from an unfair dismissal by his former employer, Pulse Interactive Pty Ltd. Mr. Lazarus alleged that his dismissal was unjust and contrary to the principles of fairness, as outlined in the Fair Work Act 2009. The respondent, Pulse Interactive, maintained that the dismissal was justified and procedurally fair.

The primary legal issue before the court was whether Mr. Lazarus' dismissal was unfair within the meaning of section 386 of the Fair Work Act. This involved examining the fairness of the decision to dismiss, the procedure followed, and whether there were any mitigating circumstances that would render the dismissal unfair. Additionally, the court had to consider whether the respondent had provided the applicant with a valid reason for the dismissal and whether the applicant had been given a reasonable opportunity to respond to the allegations.

In its judgment, the court examined the evidence presented by both parties and considered the applicable legal principles. The court determined that the dismissal was procedurally fair, as Mr. Lazarus was provided with a valid reason and an opportunity to respond. However, the court found that the decision to dismiss was harsh, given the context of the employment and the mitigating circumstances. Consequently, the court concluded that the dismissal was unfair and granted Mr. Lazarus the relief he sought under section 399A of the Fair Work Act.

The final orders of the court included a reinstatement of Mr. Lazarus to his previous position or, alternatively, compensation in lieu of reinstatement. The court also ordered Pulse Interactive Pty Ltd to pay Mr. Lazarus' legal costs associated with the application.

Joshua Lazarus v Pulse Interactive Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established