Lance Gardner v Alice Springs Commercial Broadcasters Pty Ltd

[2020] FWC 4002

[2020] FWC 4002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Lance Gardner
v
Alice Springs Commercial Broadcasters Pty Ltd
(U2020/4904)

DEPUTY PRESIDENT SAMS SYDNEY, 31 JULY 2020

Application for an unfair dismissal remedy – applicant failed to attend telephone conference –attempts made to contact applicant to no avail –application dismissed for want of prosecution.

[1] Mr Lance Gardner (the ‘applicant’), filed an unfair dismissal application with the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), after his employment with the respondent, Alice Springs Commercial Broadcasters Pty Ltd (the ‘respondent’), was terminated on 3 April 2020.

[2] In accordance with my usual practice, I listed the matter for telephone conference on 27 July 2020. To ensure the parties received the Notice of Listing and were aware of the date and time of the telephone conference, I additionally had my Associate send a calendar invite to the parties, including the Notice itself and the dial-in details to the conference. At 3:12pm on 13 July 2020, the applicant ‘Declined’ the conference invite. As anticipated from his prior non-compliance, the applicant was unable to be reached at this time, having cause for my Associate to send the following email to the applicant:

‘Dear Mr Gardner,

I refer to the above matter, and refer to your non-attendance at today’s teleconference listed at 3pm ACST (3:30pm AEST) (see the attached notice of listing), despite Chambers attempting to contact you on multiple occasions. I note that when attempting to reach you, the number you provided gave an automated message that your number has ‘incoming call restrictions’ which the Deputy President views as entirely unacceptable, given you were made well aware of today’s listing by way of the notice of listing and calendar invite. The Commission had set this matter down during a spike in Commission matters being lodged, and costs by the Commission (and presumably the respondent) were wasted due to your non-attendance.

His Honour requires an explanation by way of evidence as to your non-attendance by 4pm Wednesday 29 July 2020. If you do not provide an explanation in writing, or if the explanation is inadequate, the matter may be closed for a failure of want of prosecution. If you do not wish to continue with your application, please find attached a Form F50 – Notice of Discontinuance, for you to fill out. Alternatively, if you do not wish to proceed with your application, you may advise Chambers via email.

Please be advised that as a result of Chambers being unable to reach you by phone, all correspondence with Chambers in this matter by both parties must now be in writing. Parties are reminded that all correspondence with Chambers must copy in the other side.

Regards,

Daniel McNamara
Associate to the Hon. Deputy President P Sams AM’

No response was received by the applicant.

[3] Despite the above attempt to have the applicant provide some written advice about this matter, or file a Notice of Discontinuance, he has not done so, nor has he made any attempts to contact my Chambers. In fact, the opposite has occurred, and the Commission has reason to believe that the applicant is actively avoiding participating in his Commission matter, by deliberately declining to attend the calendar invite with no explanation. Therefore, pursuant to s 587 of the Act, the application is dismissed for want of prosecution. I so order.

DEPUTY PRESIDENT

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