Matthew Floyd v TruckTalk

[2018] FWC 6564

[2018] FWC 6564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Floyd
v
TruckTalk
(U2018/7949)

DEPUTY PRESIDENT BINET PERTH, 24 OCTOBER 2018

Application for an unfair dismissal remedy – failure to attend a conference – application dismissed.

[1] On 31 July 2018, Mr Matthew Floyd (Mr Floyd) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging he was unfairly dismissed by the Trustee for the Naismith Trust, trading as TruckTalk (TruckTalk).

[2] On 12 September 2018 a Notice of Listing was issued informing the parties that the Application was listed for a conciliation conference before Deputy President Binet at 12pm on Tuesday 9 October 2018 (Conference).

[3] The Notice of Listing stated that the conference was listed to be held in person at the FWC premises in Perth.

[4] Mr Floyd was not present at the listed time for the Conference commencement. My Associate contact Mr Floyd via telephone shortly after the listed start time of the Conference and Mr Floyd indicated that he thought the conference was a teleconference. Mr Floyd was then dialled in to the conference by telephone.

[5] When the Conference commenced, Mr Floyd was not on the line. My Associate tried to dial Mr Floyd back into the conference a further two times but his phone number went straight to Mr Floyd’s voicemail. My Associate then emailed Mr Floyd, stating that he should make contact with my Chambers by no later than 12.30pm to rejoin the Conference. Mr Floyd did not contact Chambers by 12.30pm or in fact at all.

[6] Mr Charles Naismith (Mr Naismith), TruckTalk’s owner, attended the Conference in person.

[7] Due to Mr Floyd’s failure to attend the conference, both in person, and when given an opportunity to participate via telephone, TruckTalk was invited to make an application under section 399A of the FW Act to have Mr Floyd’s application dismissed (Dismissal Application).

[8] Mr Floyd was invited to make submissions providing reasons why the FWC should not dismiss his application and advised that those submissions should be accompanied by evidence or other documentary material supporting those reasons. Mr Floyd was directed to file his material by close of business 12 October 2018.

[9] Section 399A of the FW Act provides:

“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

(c) failed to discontinue the application after a settlement agreement has been concluded.

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.”

[10] On 10 October 2018, TruckTalk filed their application to have Mr Floyd’s Application dismissed. TruckTalk submitted that on the basis of Mr Floyd’s failure to attend the conference, that the Application should be dismissed in accordance with s.399A of the FW Act.

[11] The Dismissal Application submitted that a social media post made by Mr Floyd demonstrated that he was aware of the requirement to attend the Conference in person. The social media post was a screen capture of an email that my Chambers had sent to TruckTalk, stating that parties were required to attend in person. Mr Floyd had accompanied the screen capture of the email with an offensive, profanity-laden sentence, implying that TruckTalk were trying to drag out the proceedings.

[12] In the Dismissal Application, TruckTalk submitted that the social media post was evidence that Mr Floyd was aware he was required to attend the Conference in person, and further noted that Mr Floyd has subsequently advised my Associate that he was not in fact aware he was required to attend in person.
[13] I am satisfied that Mr Floyd was, or should have been, aware of the requirement to attend the Conference in person.

[14] I note that TruckTalk attended to participate in the Conference at the listed time, that Mr Floyd did not attend in person nor make any contact with Chambers to advise he would not be in attendance, and that despite being given an opportunity to participate via telephone, he apparently chose not to do so.

[15] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend” 1

[16] Notwithstanding that Mr Floyd was invited to make submissions providing reasons why the FWC should not dismiss the Application by close of business 12 October 2018, no correspondence of any kind was received from Mr Floyd by close of business on 12 October 2018. No further correspondence has been received from Mr Floyd at the time of writing this decision.

[17] The direction to attend the Conference was clear and concise. Mr Floyd did not provide prior notification that he could not or would not attend the Conference. Mr Floyd failed to participate in the Conference via telephone when given an opportunity to do so. In the circumstances of this matter, I am satisfied Mr Floyd has unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

[18] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

[19] An Order (PR701716) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR701715>

 1   Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.