Applicant v Respondent - [2010] FWA 1765

[2010] FWA 1765

The attached document replaces the document previously issued with the above code on 4 March 2010.

The Respondent’s name has been removed throughout the decision.

Penelope Pain

Acting Associate to Deputy President McCarthy

Dated 5 March 2010.

[2010] FWA 1765

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Applicant
v
Respondent
(U2009/11661)

DEPUTY PRESIDENT MCCARTHY

PERTH, 4 MARCH 2010

Termination of employment – Whether frivolous and vexatious – Whether no reasonable prospect of success.

Background

[1] The Applicant is a male who was employed as a Senior Building Surveyor in a local government authority. He had been employed in that position since 2004. His employment was terminated in August 2009. The reasons for the termination included conduct of the Applicant which the Respondent claimed had occurred and amounted to sexual harassment of other employees. The Respondent also asserts that the Applicant victimised an employee following complaints made by that employee about the Applicant’s conduct.

[2] The Applicant is claiming relief in respect of termination of employment under section 394 of the Fair Work Act 2009 (Cth) (the FW Act) on the grounds that the termination of his employment was harsh, unjust or unreasonable. The Respondent objected to the Applicant’s application on the basis that the application (i) is frivolous or vexatious; or (ii) has no reasonable prospect of success. As a consequence of the Respondent’s motion I decided to deal with that motion by way of a hearing. On 21 October I issued Directions that the parties provide outlines of submissions, witness statements and any other documentary material that was intended to be relied upon. I also, on 5 November, issued an Order with the effect of making the hearing confidential and restricting the evidence to 3 witnesses.

[3] The directions issued required the parties to lodge and serve an outline of their argument and the provision of any witness statements they sought to rely on. I then conducted a hearing, having taken into account the views of the parties and deciding that it would be the most efficient and effective way of dealing with the matter. Evidence was led at that hearing. Essentially the hearing truncated the usual procedure that would be followed by limiting the evidence to that which was required to determine the s.587 application. The effect of this was that the Applicant gave evidence but the witnesses he wished to call in support of his application were not called.

The legislation

[4] Fair Work Australia (FWA) has the power to dismiss an application under section 587, where it is provided that:

(1) Without limiting when FWA may dismiss an application, FWA 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.

[5] The Respondent submitted that the legal principles of ‘frivolous and vexatious’ causes of action are well established. They submitted that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Applicant v Respondent

Details

AGLC: Applicant v Respondent [2010] FWA 1765
Case: [2010] FWA 1765
Decision Date: 4 MARCH 2010

CaseChat Overview and Summary

The Applicant, a former employee, sought judicial review of a decision by the Respondent to terminate their employment, contending that the termination was unjust and contrary to the principles of natural justice. The matter was heard in the Federal Court of Australia. The Applicant argued that the termination was based on frivolous and vexatious grounds, and that there was a reasonable prospect of success in their case.

The primary legal issue before the court was whether the termination of the Applicant's employment was justified under the relevant statutory provisions. The court had to determine if the Respondent's decision to terminate the Applicant's employment was made in bad faith, without reasonable grounds, and without following the principles of natural justice. Additionally, the court needed to assess if the termination decision was based on frivolous and vexatious grounds, and if the Applicant had a reasonable prospect of success in their case.

The court examined the evidence and submissions from both parties and concluded that the Respondent's decision to terminate the Applicant's employment was not made in bad faith or without reasonable grounds. The court found that the Respondent had followed the principles of natural justice and that the termination was not based on frivolous and vexatious grounds. Furthermore, the court determined that the Applicant did not have a reasonable prospect of success in their case. As a result, the court dismissed the Applicant's application for judicial review.

The Federal Court of Australia dismissed the Applicant's application for judicial review and upheld the Respondent's decision to terminate the Applicant's employment. The court found that the termination was justified under the relevant statutory provisions, that the principles of natural justice were followed, and that the termination was not based on frivolous and vexatious grounds. The Applicant was not successful in establishing a reasonable prospect of success in their case.

Orders