Edward Caruana v Silver Raven Pty Limited
[2012] FWA 5179
•18 JUNE 2012
[2012] FWA 5179 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Edward Caruana
v
Silver Raven Pty Limited
(U2012/6117)
COMMISSIONER BULL | SYDNEY, 18 JUNE 2012 |
Termination of employment – jurisdiction – claim application is vexatious, application dismissed.
[1] This matter arises from an unfair dismissal application filed with Fair Work Australia (FWA) on 13 March 2012 by Edward Caruana (the Applicant) against his previous employer Silver Raven Pty Ltd (the Employer).
[2] The employer filed its response on 29 March 2012 opposing the application. On 7 May 2012 the employer filed its own application to have the matter dismissed on the basis that Mr Caruana’s application was “vexatious and unfair”.
[3] This preliminary matter to dismiss the employee’s claim was heard on 15 June 2012 in Sydney. Mr Mahendra of counsel sought leave to appear for the Applicant which was not opposed by the employer and leave was granted.
[4] Both parties made oral submissions and filed written submissions, the Applicant also filed a written statement.
Legislation
[5] Fair Work Australia may dismiss an application pursuant to s.587 of the Fair Work Act 2009 (the Act) which is in the following terms:
“s.587 Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:
(a) ...
(b) the application is frivolous or vexatious”
Employer’s submissions
[6] The employer in its 7 May 2012 application and subsequent submissions maintained that Mr Caruana was advised that his position as Personal Assistant to the Joint Managing Director had been made redundant on 21 November 2011. He was given four weeks’ notice on this date so his effective termination date would become 21 December 2012. The notice period associated with this redundancy was extended by agreement between the parties to an unspecified date.
[7] At the end of January 2012 a storeman’s position was created and Mr Caruana was asked to apply. Mr Carauna was offered and accepted this new position in February 2012 and undertook some training associated with the new role.
[8] Due to the Applicant’s inability to carry out the storeman’s duties to the required level, Mr Caruana was terminated on 5 March 2012 and paid one day’s notice plus a sum of $5,000, said to be his redundancy pay from his original redundancy.
[9] The employer’s argument, as stated in the last paragraph of its written submission, was that Mr Caruana’s termination was a genuine redundancy; hence the claim for unfair dismissal is “opportunistic and vexatious”.
[10] In the employer’s oral submissions they pointed to the fact that the position previously occupied by Mr Caruana was made redundant following a restructure and that no other employee is currently performing the role.
Employee’s submissions
[11] Mr Caruana’s unfair dismissal application alleges procedural unfairness with his termination on 5 March 2012 and he further takes issue with the reasons provided by the employer for the termination and as such alleges the termination was harsh, unjust and unreasonable.
[12] In Mr Caruana’s statement dated 12 June 2012 he denies that he had been made aware that his original position no longer existed as work in that position continued long beyond the specified termination date. While disputing that his position was genuinely redundant, he also argues that his termination on 5 March 2012 occurred without warning on grounds that he does not accept.
[13] The submission put was that the employer called no evidence and that a defence that the employee was terminated for redundancy is contrary to the employer’s admission that on 5 March 2012 the employee was terminated for poor performance.
Frivolous or Vexatious
[14] The employer’s submission that the application is vexatious must address the established principles required to be met to dismiss a claim prior to a full hearing. The principles to be applied in dismissing an application summarily based on the lack of strength in an applicant’s case are well established.
[15] In General Steel Industries Inc v Commissioner for Railways (NSW) [1964 112 CLR 125 at page 129] the Chief Justice stated a Court must be satisfied that the application is:
“. . . so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; and “under no possibility can there be a good cause of action”.
before it can summarily terminate an action.
[16] In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J noted that litigation may be regarded as vexatious on objective or subjective grounds and that the requirements could be expressed as follows:
- They are vexatious if they are brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise;
- They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless...” (at para 491).
“ Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
[17] In determining if there are real issues of fact in issue so as to preclude summary judgment, the courts must draw all reasonable inferences in favour of the non-moving party.1
[18] In this case the employee argues that he was not made aware that his original position no longer existed and that his final termination was procedurally and substantially unfair.
[19] The employer argues that the employee’s original position no longer exists, hence the termination was a genuine redundancy and the employee’s application is “opportunistic and vexatious”. What the employer’s application to dismiss does not address in any substantial way is the employee’s claim that the termination on 5 March 2012 was unfair due to the manner in which it was undertaken and the reasons provided.
[20] There is much in dispute between the parties in this matter. There are real issues of fact and law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to a full hearing.
[21] There is simply no basis on the material before FWA to conclude that the unfair dismissal application is “frivolous or vexatious” in the sense that it lacks substance or is an abuse of process. It cannot, therefore, be said that the claim has no reasonable prospect of success.
[22] The employer’s application is therefore dismissed.
[23] The employer has requested an opportunity to make an application for costs; FWA has issued separate directions relating to this application.
COMMISSIONER
Appearances:
D. Mahendra of counsel for the Applicant.
P. Zaboyak for the Respondent.
Hearing details:
2012
Sydney:
15 May.
1 George v Fletcher(Trustee) [2010] FCAFC 53 at para.75 per Ryan and Logan JJ; and paras.99-105 per Marshall J, and in particular para.102.
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