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

(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

CaseChat Overview and Summary

In the Federal Circuit Court, Troy Smith sought an unfair dismissal remedy against Rokits Edibles Pty Ltd T/A Rokits Edibles. Smith alleged that he was unfairly dismissed from his employment as a cannabis grower. The primary dispute centred on whether Rokits Edibles had just cause to terminate Smith's employment and whether the dismissal was harsh, unjust, or unreasonable. The court had to consider the principles of procedural fairness and the reasonableness of the decision to terminate employment. It was necessary to examine whether the employer followed appropriate procedures and whether the dismissal was a proportionate response to Smith's conduct or circumstances.

The court identified several key legal issues. Firstly, it needed to determine whether Rokits Edibles followed the correct procedures when terminating Smith's employment. Secondly, the court had to assess whether the employer had just cause for the dismissal. This involved evaluating whether Smith's conduct or performance warranted termination. Thirdly, the court needed to decide whether the dismissal was harsh, unjust, or unreasonable in the circumstances. This required balancing the severity of the penalty against the gravity of the misconduct or failure to perform.

The court concluded that Rokits Edibles did not follow proper procedures when terminating Smith's employment. The employer failed to provide adequate warnings and opportunities for Smith to address the issues leading to the dismissal. The court found that the dismissal was not proportionate to the alleged misconduct, particularly given Smith's otherwise satisfactory performance and tenure with the company. The court determined that the dismissal was harsh, unjust, and unreasonable, leading to the conclusion that Smith was unfairly dismissed. Consequently, the court granted Smith's application for an unfair dismissal remedy, ordering Rokits Edibles to compensate him for the loss of employment.

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

DECISION

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Legal Principle Established