Felicity Klavs v Prestige Painters

[2013] FWC 2443

[2013] FWC 2443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Felicity Klavs
v
Prestige Painters
(U2012/14250)

COMMISSIONER SIMPSON BRISBANE, 22 APRIL 2013

Application to dismiss application under section 587.

[1] An application for Unfair Dismissal remedy has been filed by Ms Felicity Klavs which is listed for hearing in Cairns on Wednesday 24 April 2013. The Respondent filed an objection to the Application requesting that the Fair Work Commission (“FWC”) dismiss the matter relying on section 587 of the Fair Work Act 2009. The objection was listed for hearing on 18 April, 2013.

[2] Due to technical difficulties inhibiting the ability of the Applicant to participate effectively in the course of that hearing I decided to provide the parties an opportunity to see the transcript of the hearing on 18 April, and to give the Applicant an opportunity to provide written submissions before issuing a decision regarding the objection in order that the matter could be dealt with before the scheduled hearing of 24 April 2013.

[3] The relevant section of the Act provides as follows;

587 Dismissing applications

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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[4] The Respondent argues the claim was vexatious when made on the basis the Applicant did not pursue a contact offered to her at the time of termination as a redeployment option. Further it is argued the application is littered with irrelevant facts.

[5] The Respondent also says that the Applicant is primarily motivated to harass and embarrass the Respondent which is evidenced by her alleged continual harassment of the Respondent’s workforce.

[6] Based on the material available to date the matters complained of are more indicative in this case of an Applicant that has no experience is conducting a matter of this nature and I am not satisfied at this stage the manner in which she has proceeded is intended to fall within the meaning of s.587(1)(b).

[7] The Respondent argues the Application has no reasonable prospects of success. The Applicant refers to her failure to pursue a redeployment opportunity, rejection of a reasonable settlement offer, and a failure to mitigate her loss by seeking other employment. These are more likely matters for consideration of remedy in the event of a finding for the Applicant rather than a finding the matter has no reasonable prospects of success. The first of those three matters may to some extent be in a different category but that is properly a matter for evidence in the hearing itself.

[8] The Respondent has complained that the Applicant has failed to fully meet the requirements of an order I issued under s.590 for production of documents, records and other information. The Respondent acknowledges there has been partial compliance. I am satisfied that to the extent that the Applicant has not fully complied, they are not matters that would justify summary dismissal of an application to be heard in two days time. They are in general terms matters that can be dealt with by the giving of evidence in the course of the hearing if full compliance is not achieved over the next two days.

[9] The Respondent is critical of the manner in which the Applicant is presenting her case, including her written submissions failing to contest certain matters in the Respondents material, and asserts on the material filed it is clear the dismissal was based on a genuine redundancy. I am more inclined to the view that the deficiencies in the Applicant’s material can equally be attributable to the circumstances of a self represented party having no experience in preparing for a hearing.

[10] There is common ground between the parties that the Applicant made a complaint about her entitlements to the Fair Work Building and Construction (“FWBC”) and following that complaint her employer dismissed her not long afterwards. There are factual disputes between the Applicant and Respondent about what was said in an exchange between the Applicant and a representative of the Respondent shortly before her termination.

[11] Further, while I acknowledge the Respondent complains about what it says is a failure on the part of the Applicant to provide a clear answer to its explanation for the need to make redundancies in the context of a downturn in the industry in North Queensland, I am also aware the Applicant contests what is said by the Respondent in this regard and to summarily dismiss the Application would deny her the opportunity to challenge the material provided by the Respondent at a hearing.

[12] The question whether there is a reasonable prospect of success was addressed in Spencer v Commonwealth. 1 In that matter the High Court said as follows:

“..Section 31A(2) requires a practical judgment by the Federal Court as to whether the Applicant has more than a “fanciful” prospect of success. That may be a judgement of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissals should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.”

[13] On the basis of what I have said above regarding factual disputes between the parties in this matter I am not satisfied in the particular circumstances of this case that it is appropriate for the application to be summarily dismissed, either because it is frivolous or vexatious, or because it has no reasonable prospect of success and therefore the application to dismiss is refused and the hearing will proceed as scheduled.

COMMISSIONER

 1   Spencer v Commonwealth. [2010 HCA 28]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR535890>