Fair Work Commission

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.

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.

[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.

[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.

[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.

[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.

[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’.

[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.