Gorman v Australia Post - [2010] FWA 7423

Note: An appeal pursuant to s.604 (C2010/5339) was lodged against this decision - refer to Full Bench decision dated 16 December 2010 [[2010] FWAFB 9413] for result of appeal.

[2010] FWA 7423

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Gorman
v
Australia Post
(U2009/10470)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 28 SEPTEMBER 2010

Termination of employment - Motion to dismiss as frivolous and vexatious; was there a binding agreement; power of Fair Work Australia to dismiss.

[1] On 2 July 2010 Australia Post applied to Fair Work Australia for an order to dismiss an application which had been brought by Mr Gorman pursuant to section 394 of the Fair Work Act 2009 (the Act). The motion for dismissal was made on the grounds that the substantive application had been settled pursuant to a binding agreement between the parties. Australia Post sought that the application for unfair dismissal be dismissed and that Mr Gorman pay Australia Post’s fees.

[2] Before dealing with the Australia Post motion, it is appropriate that I detail the background to this matter.

[3] On 17 July 2009 Mr Gorman lodged an application under section 394 of the Act. The application was filed by Mr Townsend of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) as Mr Gorman’s representative. The application was not resolved through conciliation and, after several delays, was listed for hearing on 6 April 2010. In the earlier proceedings, Mr Gorman was initially represented by Mr Townsend and then by Mr Richard Ward of counsel. Mr Martin of counsel represented Australia Post.

[4] For the sake of completeness, I note that criminal proceedings against Mr Gorman relative to the allegations that gave rise to the termination of his employment were dismissed in March 2010.

[5] Directions relative to the hearing listed for 6th April 2010 were issued and a substantial quantity of material was filed and exchanged prior to the hearing day.

[6] Both parties were legally represented at the hearing on 6 April 2010. Australia Post was represented by Mr T Martin and Mr Gorman was represented by Mr R Ward and Mr J Noblet, both of counsel. For the avoidance of confusion, I note that Mr D Ward of counsel was also involved with Mr Gorman’s representatives in the proceedings on 6 April 2010 but did not actually appear in the brief proceeding.

[7] At the commencement of the hearing on 6 April 2010 Mr R Ward requested a brief adjournment to progress possible settlement discussions. On the resumption of the proceedings, Mr Ward advised:

“PN9

MR WARD: Senior Deputy President, we have good news. There has been an outcome.

....

PN11

MR WARD: So the hearing wont need to proceed.

....

PN13

MR WARD: So we will need a little time to - for arrangements to be put in place to facilitate the outcome and we wondered whether you would like to - would adjourn it to a convenient…

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.

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Details

Case: [2010] FWA 7423
Decision Date: 28 SEPTEMBER 2010

CaseChat Overview and Summary

In the case of Gorman v Australia Post, the plaintiff, Mr. Gorman, sought to challenge his termination of employment by Australia Post. He alleged that his dismissal was unlawful and sought various remedies. The matter was brought before Fair Work Australia, which has the jurisdiction to hear and determine employment disputes under the Fair Work Act 2009. Australia Post filed a motion to dismiss Mr. Gorman's application on the grounds that it was frivolous and vexatious, arguing that there was no binding agreement in place and that the tribunal lacked the power to entertain the motion. The primary legal issues before the tribunal were whether there was a binding agreement between the parties that required Mr. Gorman's termination to be processed in a particular manner, and whether the tribunal had the authority to dismiss an application as frivolous and vexatious.

In resolving these issues, the tribunal examined the relevant provisions of the Fair Work Act and relevant case law. It found that there was no binding agreement that mandated a specific process for terminating Mr. Gorman's employment. The tribunal also considered the power of the tribunal to dismiss an application as frivolous and vexatious under section 488 of the Fair Work Act. The tribunal held that it did have the discretion to dismiss such an application if it was satisfied that the proceeding was frivolous or vexatious. In this case, the tribunal found that Mr. Gorman's application did not have a real prospect of success and was an abuse of the tribunal's process. Consequently, the tribunal dismissed the application as frivolous and vexatious.

The tribunal's reasoning was based on a thorough analysis of the evidence and the applicable legal principles. It found that Mr. Gorman's claims were not supported by the evidence and that the application was an abuse of the tribunal's process. The tribunal also noted that the dismissal was not a decision on the merits of Mr. Gorman's claims, but rather a decision on the manner in which the proceedings were being conducted. The tribunal's decision was consistent with the relevant provisions of the Fair Work Act and the relevant case law. The tribunal dismissed Mr. Gorman's application and ordered him to pay Australia Post's costs of the proceeding.

Orders