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

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Troy Schrammeijer brought an application against Todojo Pty Ltd, trading as Pholklore, seeking a remedy for unfair dismissal. The application was heard and dismissed by the Fair Work Commission, which took the action under section 587 of the Fair Work Act for want of prosecution. Schrammeijer appealed to the Federal Circuit and Family Court of Australia, which subsequently dismissed the appeal. Schrammeijer then sought special leave to appeal to the High Court, which was refused. The matter was then brought before the Federal Court of Australia, which considered the dismissal of the application for unfair dismissal remedy.

The central legal issues before the court involved the interpretation and application of section 587 of the Fair Work Act, specifically in relation to the dismissal of an application for want of prosecution at the Fair Work Commission's initiative. The court was required to determine whether the dismissal of the application for unfair dismissal remedy was justified and if the procedural fairness was adequately observed. Additionally, the court examined the appropriate circumstances under which an application could be dismissed without a hearing and the threshold for granting special leave to appeal.

In its reasoning, the court held that the dismissal of the application for unfair dismissal remedy at the Fair Work Commission was appropriate under section 587. The court found that the Commission had correctly exercised its discretion in dismissing the application due to the applicant's failure to prosecute the matter diligently. The court also considered that the procedural fairness was maintained as the applicant had ample opportunity to address the issues before the Commission. Furthermore, the court noted that the Federal Circuit and Family Court of Australia had correctly dismissed the appeal, and the refusal of special leave by the High Court was a valid exercise of judicial discretion. Consequently, the Federal Court of Australia upheld the dismissal of the application for unfair dismissal remedy.

In conclusion, the Federal Court of Australia dismissed the application for special leave to appeal, affirming the prior decisions of the Fair Work Commission, the Federal Circuit and Family Court of Australia, and the High Court. The court held that the dismissal of the application for unfair dismissal remedy was justified and procedural fairness was observed throughout the process.

Troy Schrammeijer v Todojo Pty Ltd T/A Pholklore

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established