Troy Schrammeijer v Todojo Pty Ltd T/A Pholklore

[2021] FWC 6057

[2021] FWC 6057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Schrammeijer
v
Todojo Pty Ltd T/A Pholklore
(U2021/6613)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 5 OCTOBER 2021

Application for unfair dismissal remedy – dismissal of application for want of prosecution at Fair Work Commission’s initiative – s.587.

[1] On 27 July 2021, the Fair Work Commission (the Commission) received an application from Mr Troy Schrammeijer (the Applicant) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act), in respect of his employment with Todojo Pty Ltd trading as Pholklore (the Respondent).

[2] On 2 September 2021, I issued directions to the parties to file written submissions and supporting material. The Applicant was directed to submit his materials by no later than noon on 24 September 2021. The Applicant did not comply with this direction to provide written submissions and evidence.

[3] My Chambers advised the applicant on 27 September 2021 that the directions were breached. The Applicant was directed to provide an explanation for this breach of directions by no later than noon on Wednesday, 29 September 2021. No response was received by the time as directed.

[4] On 30 September 2021, the Applicant was advised that if a response was not received by no later than noon on 4 October 2021 the matter was at risk of being dismissed for want of prosecution without any further advice being sent to the Applicant. No response was received by the time as directed.

[5] Since this matter was allocated to me for determination, the Applicant has breached directions a total of three times and has not responded to any correspondence sent from my Chambers.

[6] Section 587 of the FW Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. I add that if the employer had applied as required by s.399A(2) I would have also decided to dismiss the application for breach of directions pursuant to s.399A(1)(b).

[9] An order to this effect is contained in PR734556.

DEPUTY PRESIDENT

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