When can the Commission dismiss an application?

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General power to dismiss

The Fair Work Commission can dismiss an application under s.587(1) on its own motion or upon application.^[1]

The Commission can dismiss an application on the following grounds:

the application is not made in accordance with the Act, or
the application is frivolous or vexatious, or
the application has no reasonable prospects of success.^[2]

Frivolous or vexatious

An application will be considered frivolous or vexatious where the application:

is so obviously untenable that it cannot possibly succeed
is manifestly groundless
is so manifestly faulty that it does not admit of argument
discloses a case which the Commission is satisfied cannot succeed, or
does not disclose a cause of action.^[3]

No reasonable prospect of success

Generally, for an application to have no reasonable prospect of success, it must be manifestly untenable and groundless.^[4]

The party raising the objection does not need to prove that the other party’s case is hopeless or unarguable.

The Commission must use a critical eye to identify whether the evidence of the party responding to the objection has sufficient quality or weight to succeed.

The party responding to the objection does not need to present their entire case, but must present a sufficient outline to enable the Commission to reach a preliminary view on the merits of their case.

The real question is not whether there is any issue that could arguably be heard, but whether there is any issue that should be permitted to be heard.^[5]

An application can be dismissed on the basis that it has no reasonable prospects of success after the Commission has heard the applicant’s case but before the respondent has started to present its case. However, if a respondent applies at that point for the applicant’s case to be dismissed, it may be required to elect not to call any evidence.^[6]

Note: The following case examples relating to the dismissal of applications on the basis that they were frivolous, vexatious and/or had no reasonable prospects of success are mainly unfair dismissal cases, with anti-bullying cases included where possible.

Case examples

Application dismissed – frivolous or vexatious

West v Hi-Trans Express t/as NSW Logistics Pty Ltd

PR974807 (AIRC, Hamberger SDP, 4 December 2006).

Facts

The employee who made the application admitted to negligently driving a forklift into a building support column.

Outcome

The application was dismissed as being frivolous, vexatious or lacking in substance.

Relevance

The admissions of the applicant in this case meant that there was no real question to be determined by the Commission and as a result the application was dismissed.

Taminiau and Thomson v Austin Group Limited

PR974223 (AIRC, Harrison C, 5 October 2006).

Facts

The employees were dismissed for using their employer’s trademarks for an improper purpose.

Outcome

It was found that the employees' actions in using the employer's trademarks for improper potential gain was a clear breach of good faith, fiduciary duty and was an indication of a conflict of interest which could not have any place in a direct employment relationship. The applications were not arguable in fact or law. The applications were dismissed as being frivolous and vexatious.

Relevance

In the circumstances of this matter, particularly having regard to the allegations of the employer and the admissions of the employees, there was no real question to be determined in any prospective proceedings before the Commission.

Application dismissed – no reasonable prospects of success

Dekort v Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern

[2010] FWA 3389 (Harrison DP, 28 April 2010).

Facts

An employee was dismissed for taking sick leave on New Year’s Eve. The employee supported his application for sick leave with a medical certificate. The employer refuted the assertion of genuine illness and provided a photograph from a Facebook page showing the employee participating in New Year’s Eve celebrations.

Outcome

It was found that the employee had failed to put any case to meet the assertion of misleading conduct, to explain the inconsistency of his actions, or to refute the evidence of the employer. The application was dismissed as one which had no reasonable prospect of success.

Relevance

It is important to be able to provide evidence to support a case before the Commission; without evidence the Commission cannot deal with the matter.

Applicant v Respondent

[2010] FWA 1765 (McCarthy SDP, 4 March 2010).

Facts

The applicant made an application for unfair dismissal after he was dismissed for sexual harassment and victimisation of other employees.

Outcome

The Commission found the applicant to be unconvincing in his complaints about the process and importantly unconvincing about his denial of or response to allegations about his conduct and behaviours with other employees. The applicant could provide no evidence of sufficient quality or weight to be able to succeed with his claim.

Relevance

It is important to be able to provide evidence to support a case before the Commission; without evidence the Commission cannot deal with the matter.

Shaw v Australia and New Zealand Banking Group Limited t/A ANZ Bank

[2014] FWC 3408 (Gostencnik DP, 26 May 2014).

Facts

An application was made by Mr Mitchell Shaw under s.789FC of the Fair Work Act for an order to stop bullying. Before the matter could be heard, Mr Shaw was dismissed from his employment with ANZ. ANZ applied pursuant to s.587(3) of the Fair Work Act for an order under s.587(1) dismissing Mr Shaw’s application because, since Mr Shaw’s dismissal, there ceased to be a risk that Mr Shaw would continue to be bullied at work by any individual or group.

Outcome

The Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, was satisfied that Mr Shaw’s application had no reasonable prospect of success. The application was dismissed.

Relevance

A key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employee has been dismissed then there would not usually be a risk that the employee will continue to be bullied at work.

Re P.K

[2015] FWC 562 (Hampton C, 11 February 2015).

Facts

An application was made under s.789FC of the Fair Work Act for an order to stop bullying (the AB application) and an application for an alleged breach of the General Protections was made at the same time. The AB application contained a collection of documents to support the applicant’s case, including a termination letter from the employer.

The employer’s position regarding the AB application was that there was ‘no case to pursue’ since the applicant no longer worked for it. The employer sought that the AB application be dismissed.

Section 587 provides a discretion to dismiss an application. However the context of s.587 may differ depending on the time at which the question is asked such that, as circumstances change, an application which once had some reasonable prospect of success no longer has a reasonable prospect of success.

Outcome

The Commission found that there was no reasonable prospect of an order being made given the absence of a discernible future risk of relevant bullying conduct. This means that there was no reasonable prospect of success given the particular powers of the Commission to make Orders in this jurisdiction.

Relevance

A key consideration for the making of an anti-bullying order is that there is a risk that the worker will continue to be bullied at work. Once the employee has been dismissed then there would not usually be a risk that the employee will continue to be bullied at work.

Related information

Risk of continued bullying

Application NOT dismissed – frivolous or vexatious – dispute over deed of release

Kalloor v SGS Australia Pty Ltd

[2009] AIRC 682 (Harrison C, 10 July 2009).

Facts

The employee alleged he was coerced into signing a Deed of Settlement releasing the employer from any claims arising from his employment and dismissal. The employer denied the allegation and asserted that, contrary to being placed under duress, the employee freely negotiated a resignation package.

Outcome

The Commission found that there were major factual differences in the case and that evidence needed to be properly given and tested. The application was not dismissed and was listed for hearing.

Relevance

Parties have a right to be heard and the merits of an application for relief should be fully tested against a submission that the application is ‘frivolous, vexatious or lacking in substance’.

Application NOT dismissed – frivolous, vexatious or lacking in substance – facts in dispute

Perrella v ITW Australia Pty Ltd T/A Hobart Food Equipment Service and Sales

[2009] AIRC 107 (Williams C, 3 February 2009).

Facts

The employee was dismissed for poor performance. There were fundamental disagreements between the parties on the facts of the matter.

Outcome

The employer made the motion to dismiss and therefore it was the employer who must prove to the Commission that the employee’s case was so untenable that it could not possibly succeed. The Commission was not able to decide which of the two conflicting versions was correct based on the parties written submissions alone. To resolve the conflicting views the Commission would need to have all the relevant witnesses called to give evidence under oath and be subject to cross-examination and to then hear argument from both parties regarding that evidence. The Commission was not satisfied that the application was frivolous, vexatious or lacking in substance such that it should be dismissed without any further hearing.

Relevance

The respondent could not satisfy the Commission that the application was frivolous or vexatious or lacking in substance, as a result the matter was listed for hearing so that the evidence in the matter could be heard.

Defence, security and Australian Federal Police (AFP) operations

The Commission may dismiss an application for an order to stop bullying if the Commission considers that the application might involve matters that relate to:

Australia’s defence
Australia’s national security, or
An existing or future covert operation, or international operation; of the Australian Federal Police (AFP).^[7]

A covert operation is a ‘function’ or ‘service’ of the AFP^[8] where knowledge of the operation by an unauthorised person may:

reduce the effectiveness of the performance of the function or service, or
expose a person to the danger of physical harm or death arising from the actions of another person’.^[9]

A covert operation might, for example, include an undercover operation to identify those involved in drug trafficking, but would not include general duties policing.^[10]

An international operation is an ‘operation to maintain order in a foreign country’ where:

it would not be reasonably practicable to eliminate risks to the health and safety of the AFP appointee involved in the operation because of the environment in which the operation is undertaken, and
the Commissioner of the AFP has taken all steps reasonably practicable to minimise any risks to the health and safety of the AFP appointee.^[11]

References

^[1] Fair Work Act s.587(3).

^[2] Fair Work Act s.587(1).

^[3] Micheletto v Korowa Anglican Girls' School PR940392 (AIRCFB, Giudice J, Hamilton DP, Deegan C, 11 November 2003) at para. 17, [(2003) 128 IR 269]; citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (9 November 1964) at paras 8–10, [(1964) 112 CLR 125 at pp. 128‒130].

^[4] Wright v Australian Customs Services PR926115 (AIRCFB, Giudice J, Williams SDP, Foggo C, 23 December 2002) at para. 23.

^[5] Applicant v Respondent [2010] FWA 1765 (McCarthy SDP, 4 March 2010) at para. 15; citing Wang v Anying Group Pty Ltd [2009] FCA 1500 at para. 43; and Davis v Insolvency and Trustee Service Australia (No 3) [2010] FCA 69 (12 February 2010) at para. 15.

^[6] Townsley v State of Victoria (Department of Education & Early Childhood Development) [2013] FWCFB 5834 (Hatcher VP, Hamilton DP, Wilson C, 20 September 2013) at paras 17–24.

^[7] Fair Work Act s.789FE(2).

^[8] Australian Federal Police Act 1979 (Cth) s.8.

^[9] WHS Act s.12E(2).

^[10] Note to WHS Act s.8.

^[11] WHS Act s.12E(2).

Updated time

Last updated

02 October 2019

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