DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Rod Silman
v
VA Digital Hire Pty Ltd
(U2020/5090)

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 Rod Silman (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, VA Digital Hire Pty Ltd (the ‘respondent’), was terminated on 27 March 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 Silman,

I refer to the above matter, and refer to your non-attendance at today’s teleconference listed at 10:00am (see the attached notice of listing), despite Chambers attempting to contact you on multiple occasions on both the number listed in your Form F2 (noting that you have not provided your contact information to Chambers in accordance with the notice of listing), and your new number as indicated by your voicemail. 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 Thursday 18 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 respondent is reminded that its submissions are due to be filed by 4pm 25 June 2020 (see the attached directions). His Honour also notes that it is most unacceptable that the respondent also did not provide its contact information to Chambers prior to the commencement of this morning’s listing.

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, I had cause for my Associate to send a further email to the applicant on 19 June 2020 as follows:

‘Dear Mr Silman,

I refer to the below correspondence, and note that no correspondence has been received by you regarding your matter. Therefore, His Honour hereby suspends the directions as currently timetabled. If Chambers does not hear from you by Wednesday 24 June 2020, the matter will be automatically dismissed pursuant to s 587 of the Fair Work Act 2009.

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

Printed by authority of the Commonwealth Government Printer

The case of Rod Silman v VA Digital Hire Pty Ltd involved an application for unfair dismissal remedy. The applicant, Mr. Silman, had filed a complaint against his former employer, VA Digital Hire Pty Ltd, alleging unfair dismissal. The matter was before the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the application should proceed in the absence of the applicant, who failed to attend a scheduled telephone conference without any prior notice or attempt to reschedule.

The legal issue the court had to address was whether the application could continue in the absence of the applicant, and if not, whether the application should be dismissed for want of prosecution. The court considered the procedural fairness and the importance of the applicant's presence in the proceedings. It was noted that multiple attempts were made to contact Mr. Silman to inform him of the conference, but these efforts were unsuccessful. The court ultimately concluded that the applicant's failure to attend the conference, despite being given multiple opportunities to do so, warranted the dismissal of the application.

The reasoning of the court was that the proceedings could not be effectively conducted without the applicant's presence, and the fairness of the process was compromised. Given that the applicant had failed to engage with the proceedings after being duly notified, the court dismissed the application for want of prosecution. This decision was made in accordance with the court's procedural rules, which emphasize the necessity of active participation from all parties involved. The court's final order was that the application was dismissed, and no further action would be taken on the unfair dismissal claim.

Rod Silman v VA Digital Hire Pty Ltd

DECISION

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