Fair Work Commission

West v Hi-Trans Express t/as NSW Logistics Pty Ltd, PR974807 (AIRC, Hamberger SDP, 4 December 2006).

An application by an employee who admitted to negligently driving a forklift into a building support column was dismissed as being frivolous, vexatious or lacking in substance.

Taminiau and Thomson v Austin Group Limited, PR974223 (AIRC, Harrison C, 5 October 2006).

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

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

An application by an employee dismissed for sexual harassment and victimisation of other employees was found to have no evidence of sufficient quality or weight to be able to succeed.

Lynch v Reward Hospitality [2021] FWC 304 (Simpson C, 29 January 2021).

This unfair dismissal application was lodged on 25 May 2018. The applicant advised he was involved in criminal proceedings before the Northern Territory Supreme Court. The applicant requested an adjournment of the Unfair Dismissal application on the basis the outcome of the criminal trial would be relevant to these proceedings. The Commission granted the request and adjourned the proceedings pending the outcome of the criminal trial.

The applicant was subsequently convicted and was on remand. In September 2018 the Commission was advised the applicant was appealing his conviction and requested the matter be adjourned pending the outcome of his appeal. The Commission was contacted by the applicant's partner in August 2020 who advised the applicant was seeking to proceed with his unfair dismissal application. At a mention in October 2020 the applicant advised the Commission that his appeal to the Criminal Court of Appeal was unsuccessful and that the full-time length of his sentence would be a release date in 2026.

The Commission expressed concerns regarding the practicality of proceeding with the application given the applicant's criminal conviction was going to involve him being incarcerated until 2026. The Commission advised the applicant that his primary remedy of reinstatement may be problematic on the basis it would be inappropriate to issue the respondent with an Order that they could not comply with. The applicant agreed and said he now sought compensation of 16 weeks' pay to reimburse him from the time he was stood down without pay until he obtained full-time employment. The Commission put the applicant on notice that it did not have power to award compensation for periods prior to the dismissal itself.

The Commission expressed its concerns that this application had no reasonable prospect of success, given neither of the remedies for this application appear to be obtainable, and it was therefore not appropriate to conduct a hearing for this matter when the purpose of this application could not be achieved.

The Commission found that the application was manifestly untenable and groundless and therefore had no reasonable prospects of success. The application was dismissed.

Dekort v Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern [2010] FWA 3389 (Harrison DP, 28 April 2010).

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.

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.

Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1.

A draft deed of settlement based on the verbal agreement between the parties was prepared by the employer's representative. The employee contended there was no completed agreement as the mutual release provision included in the draft deed was not discussed (let alone agreed upon) and, secondly, that any agreement which had been made was conditional on written terms being agreed.

The Full Bench confirmed on appeal that, even though the draft deed included mutual release terms beyond those the employee discussed or agreed to, there was still a binding settlement agreement. Permission to appeal was refused and the appeal dismissed.

Morton v Peregrine Corporation Pty Ltd T/A On the Run [2011] FWA 4812 (Bartel DP, 22 July 2011).

The employee in this matter failed to attend a jurisdictional hearing, failed to comply with directions of the Commission and was unable to be contacted.

As the Commission did not have the details it needed to determine the merits of the case for the employee there could be no finding that the matter was frivolous or vexatious. It was found that the failure to provide evidence in support of the application could give rise to a finding of 'no reasonable prospect of success'.

Aragon v Aegis Safety Pty Ltd T/A Techinspect [2013] FWC 5993 (Spencer C, 30 August 2013).

The applicant failed to comply with directions issued on three separate occasions to file material in relation to his application and jurisdictional objections. The applicant was offered a further opportunity to provide submissions or reasons for his failure to comply. While the Commission acknowledged the hardships expressed by the applicant, they were not considered exceptional. Most applicants appearing before the Commission in termination matters have financial difficulties and are not trained lawyers or have industrial relations expertise.

Young v Balustrade Installations Pty Ltd [2013] FWC 4032 (Gooley DP, 24 June 2013).

The applicant failed to comply with directions to file material and subsequently failed to attend a non-compliance hearing. He was given a further opportunity to explain his absence but did not respond.

Milochis v Detmold Packaging Pty Ltd [2013] FWC 3647 (O'Callaghan SDP, 6 June 2013).

An agreed position was reached at a telephone conference. The applicant did not complete and return the Deed of Settlement or lodge a Notice of Discontinuance despite material being sent to him on two separate occasions. The applicant failed to attend a further telephone conference or submit a Notice of Discontinuance following further requests for him to do so.

Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 (Richards SDP, 14 July 2015).

The employee in this matter failed to comply with directions of the Commission and was unable to be contacted. The application was dismissed because the applicant failed to prosecute her claim despite being afforded an opportunity to do so. The Commission was also satisfied that the materials provided by the employer indicated that the employer had a defence to the claim.

Kalloor v SGS Australia Pty Ltd [2009] AIRC 682 (Harrison C, 10 July 2009).

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.

It was 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.

Perrella v ITW Australia Pty Ltd T/A Hobart Food Equipment Service and Sales [2009] AIRC 107 (Williams C, 3 February 2009).

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

The Commissioner was not able to decide which of the two conflicting versions was correct based on the parties written submissions alone. The Commissioner was not satisfied that the application was frivolous, vexatious or lacking in substance such that it should be dismissed without any further hearing.

Turton v FMC Australasia Pty Ltd [2011] FWA 8903 (Hampton C, 22 December 2011).

An employee negotiated and agreed to the terms upon which he was to leave the business of the employer. However, in reality his only choice was to resign (as part of the agreed package) or be dismissed.

It was found that the agreement did not change the legal character of the dismissal. The application was not dismissed and the case proceeded to conciliation.

Cross v National Australia Bank T/A NAB [2013] FWC 3352 (Wilson C, 28 May 2013).

The applicant failed to comply with directions to file material and was unable to attend a non-compliance hearing. The applicant wrote to the Commission explaining that she was under financial pressure, seeking representation and was not aware that she was required to attend the non-compliance hearing. The applicant's reasons were accepted by the Commission.