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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Lance Gardner initiated proceedings against Alice Springs Commercial Broadcasters Pty Ltd in the Federal Circuit Court, contesting the termination of his employment. The crux of the dispute revolved around whether the dismissal was unjust, with Gardner asserting that his termination was unfair and that his employer had violated certain statutory protections. The court was tasked with determining the validity of the dismissal and whether it was indeed unfair, as well as assessing whether the employer had complied with the requisite legal standards. Additionally, the court had to consider the procedural aspects of the case, particularly whether Gardner's failure to attend a scheduled telephone conference warranted the dismissal of his application.

The primary legal issues before the court encompassed the fairness of the dismissal and the procedural steps taken by the parties. The court was required to examine whether the employer had just cause to terminate Gardner's employment and whether the termination process adhered to relevant employment laws and regulations. Furthermore, the court had to address whether Gardner's non-attendance at the scheduled telephone conference constituted a sufficient ground for the dismissal of his application for lack of prosecution. The court also needed to assess whether reasonable attempts were made to contact Gardner to inform him of the scheduled conference and the consequences of his non-attendance.

In delivering its decision, the Federal Circuit Court found that the applicant's failure to attend the scheduled telephone conference and his unresponsiveness to attempts to contact him constituted a significant procedural default. The court emphasised the importance of adhering to procedural requirements in legal proceedings and determined that Gardner's actions warranted the dismissal of his application for lack of prosecution. The court held that Gardner had not demonstrated a reasonable excuse for his failure to attend the conference or to respond to communications from the court. Consequently, the court dismissed the application on the grounds that it had not been prosecuted as required by the procedural rules.

No specific orders were made regarding the substantive matter of the unfair dismissal, as the application was dismissed on procedural grounds. The court's ruling focused on the procedural aspect, concluding that the application was not pursued diligently and was thus dismissed for want of prosecution.

Lance Gardner v Alice Springs Commercial Broadcasters Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established