Troy Smith v Rokits Edibles Pty Ltd T/A Rokits Edibles

[2021] FWC 6286

[2021] FWC 6286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Smith
v
Rokits Edibles PTY LTD T/A Rokits Edibles
(U2021/7822)

VICE PRESIDENT CATANZARITI SYDNEY, 8 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 2 September 2021, Troy Smith filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to his employment with ‘Rokits Edibles PTY LTD T/A Rokits Edibles’ (the respondent).

[2] On 29 September 2021, the respondent raised a jurisdictional objection to this application on the basis that Mr Smith did not complete the minimum employment period.

[3] On 21 October 2021, my chambers sent correspondence to Mr Smith, identifying the respondent’s objection and directing him to provide a statement by 28 October 2021 in support of having completed the minimum employment period, if he believed he had.

[4] On 29 October 2021, my chambers sent further correspondence to Mr Smith, noting he had not responded and directing him to provide a response by 3 November 2021. He was advised that in the absence of a reply, his application may be dismissed without further notice.

[5] On 4 November 2021, my chambers rang Mr Smith on the mobile telephone number provided on his application form, but an automated message advised that the call could not be connected.

[6] To date, Mr Smith has not responded to any of the Commission’s attempts to contact him.

[7] Section 587 of the 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

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

[9] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735569>