Shane Scheikowski v The Trustee for GT Admin Trust
[2025] FWC 11
•2 JANUARY 2025
| [2025] FWC 11 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Shane Scheikowski
v
The Trustee For GT Admin Trust
(C2024/7994)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 2 JANUARY 2025 |
Section 365 application – failure to prosecute application - application dismissed pursuant to s.587 of the Act.
On 6 November 2024 Mr Shane Scheikowski (the Applicant) applied to the Fair Work Commission (FWC) under s.365 of the Fair Work Act (the Act) alleging he had been dismissed by The Trustee for the GT Admin Trust in contravention of the general protections provisions. His application was allocated to my Chambers on 28 November 2024. On reading the originating application, it appeared to me that the Applicant was in fact making a claim for underpayment of wages. As such, on 4 December 2024 I caused my Chambers to write to him as follows:
“Dear Mr Scheikowski,
Your section 365 general protections claim has been allocated to Deputy President O'Keeffe. At this stage, there has been no Form F8A received from the Respondent and so it is uncertain as to whether they intend to make a jurisdictional objection to the Fair Work Commission (FWC) dealing with your claim. Please note that a section 365 claim is a claim that you have been dismissed in breach of the general protections provisions of the Fair Work Act (the Act).
It appears to the Deputy President that your claim does not allege such a dismissal but rather is a claim for unpaid wages and allowances. These claims fall outside of the jurisdiction of the FWC. If you are seeking to pursue underpayments, you should in the first instance contact the Fair Work Ombudsman whose website can be found here: you please advise by return email if you intend to continue with your section 365 claim numbered C2024/7994 and, if so, please provide a written explanation of how your dismissal was in breach of the general protections provisions of the Act. Your response should be received no later than 4.00pm Monday 9th December 2024.”
No response was received from the Applicant. Consequently, on 10 December 2024 the following email was sent to him:
“Dear Mr Scheikowski,
Chambers notes that you are yet to provide a written explanation of how your dismissal was in breach of the general protections provisions of the Act. Your response was due by 4.00pm Monday 9th December 2024.
As such Deputy President O'Keeffe requests that you provide a response by no later than 4:00pm (AWST) Thursday 12 December 2024.”
No response was received from the Applicant. As a result, on 13 December 2024 the following email was sent to him:
“Dear Mr Scheikowski,
I refer to our two previous emails regarding your application numbered C2024/7994. As you have not responded to the Deputy President's requests for further information, he advises that it is his intention to dismiss your application on the basis that it is not properly made as per the requirements of the Fair Work Act. Such dismissal will take place without any further opportunity for you to make submissions.
If you object to the dismissal and wish to proceed, you must advise Chambers by no later than 4.00pm (AWST) Monday 16th December.”
No response was received from the Applicant.
Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8])
In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has failed to respond to correspondence on three separate occasions and his claim as submitted seeks to recover what the Applicant claims are unpaid wages. As such I find that the Applicant is failing to prosecute his application which is in any case an application that should be made elsewhere. An order dismissing the application will issue.
DEPUTY PRESIDENT
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