Peter Mitchell v Grafton District Golf Club Ltd

[2020] FWC 3479

[2020] FWC 3479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Peter Mitchell
v
Grafton District Golf Club Ltd
(U2020/5236)

DEPUTY PRESIDENT SAMS SYDNEY, 2 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 Peter Mitchell (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, Grafton District Golf Club Ltd (the ‘respondent’), was terminated on 9 April 2020.

[2] In accordance with my usual practice, I listed the matter for telephone conference on 15 June 2020. 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 Mitchell,

I refer to the above matter, and refer to your non-attendance at today’s teleconference listed at 9:00am (see the attached notice of listing), despite Chambers attempting to contact you on multiple occasions on your mobile, and also to your home phone line, where I spoke to your partner who indicated that you were not aware of this morning’s listing. The Commission had set this matter down during a spike in Commission matters being lodged, and costs by the Commission were wasted due to your non-attendance.

His Honour requires an explanation by way of evidence as to your non-attendance by close of business Monday 29 June 2020. If you do not provide an explanation in writing, the matter may be closed for a failure of want of prosecution. 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.

The Deputy President intends on relisting the conciliation teleconference to 9am Friday 3 July 2020. Parties are to advise of their availability at their earliest convenience.

The respondent is reminded that its submissions are due to be filed by 4pm 1 July 2020 (see the attached directions). However, if the respondent requires an extension of time to file its submissions given the circumstances, His Honour will likely allow this request.

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’

[3] As no response was received by the applicant, the respondent’s representative, Ms Nicola Shaw, Legal Counsel – Workplace Relations, ClubsNSW, sent an email to my Chambers on 25 June 2020 as follows:

‘Dear Mr McNamara

I refer to your email dated 25 June 2020 where the Applicant was instructed to provide a response by close of business 29 June 2020. As I may have not been copied into any correspondence can I confirm if the Applicant has provided a response and if not, if his Honour is intending to close the matter?

Kind regards

Nicola Shaw

My Associate responded to the parties as follows:

Dear Parties,

In response to the below email, unless Chambers is otherwise urgently advised by the applicant, His Honour proposes to issue a short formal decision dismissing the application.

Regards,

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

[4] Despite the above attempts 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. 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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