Jonathan Reposar v Morris Corporation Ltd

[2016] FWC 717

[2016] FWC 717

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Reposar
v
Morris Corporation Ltd
(U2015/13274)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 FEBRUARY 2016

Application for relief from unfair dismissal – s.399A application – refused – no failure to comply with a direction – s.587(1)(b) refused – application not manifestly untenable.

[1] On 30 September 2015 Mr Reposar lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with Morris Corporation Pty Ltd (Morris Corporation). That application was the subject of a telephone conciliation conference on 20 November 2015. The FWC file records that Mr Reposar participated in the conciliation conference and proposed a resolution which was not agreed. The file also records that the FWC conciliator tried to contact Mr Reposar after the conference but was unable to make contact with him. Advice, confirming that the matter would be referred for arbitration, was sent to Mr Reposar and to the Morris Corporation on 16 December 2015.

[2] On 23 December 2015 Morris Corporation lodged a Form F4 in which it objected to the application and sought that it be dismissed on two grounds. Morris Corporation relied on s.587(1)(b), and asserted that the application had no reasonable prospect of success as Mr Reposar had not provided any reasons as to why the dismissal was unfair in his application and, asserted that, unless Mr Reposar has gained a successful visa sponsorship he had no working rights in Australia. Morris Corporation advised that it was not aware if Mr Reposar had gained that sponsorship. Secondly, Morris Corporation sought that the application be dismissed under s.399A on the basis that Mr Reposar had failed to follow up or carry on with the application after conciliation, after numerous attempts by the conciliator to contact him.

[3] The Morris Corporation objection was the subject of a telephone conference with me on 1 February 2016. Mr Reposar participated in this conference and Morris Corporation was represented by Ms Van Der Merwe. I note that a sound file record of this conference was kept. These reasons for decision confirm the advice I provided in the course of this conference.

[4] I considered both of the objections to the application put by Morris Corporation in the context of the advice provided to me at this conference.

[5] Section 587(1) states:

“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.”

[6] The meaning of the words "frivolous or vexatious" has been frequently considered by various Courts. Barwick C.J. considered these words in the context of the Order 26, Rule 18 of the High Court Rules in General Steel Industries Inc v Commissioner of Railways (NSW) 1 in the following terms:

"The test to be applied has been variously expressed; "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"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". 2

[7] I have adopted the position that the words “frivolous or vexatious” must convey an intention that the power to dismiss an application and to thereby deprive an applicant of the right to pursue an otherwise available cause of action should only be used in limited circumstances where an application simply cannot successfully be pursued such that further hearing of it would be futile.

[8] In Mr Reposar’s case, the absence of reasons why the dismissal was unfair in his application could reflect a variety of factors. It is to be expected, that, if the matter proceeds, directions specifying a requirement for the provision of further information in support of the application will be issued. If Mr Reposar fails to comply with those directions he may put his continued pursuit of the application at risk. However, the absence of details in the application does not, in this situation, mean that further hearing of the matter would be futile.

[9] It may also be the case that Mr Reposar’s visa status is established as a matter relevant to either the fairness of his dismissal or remedies which might be otherwise considered. However, the limited material before me does not establish that further hearing of the matter would necessarily be futile such that I should deprive Mr Reposar of the opportunity to pursue his application.

[10] Consequently, the motion that Mr Reposar’s application should be dismissed as frivolous or vexatious pursuant to s.597(1)(b) was refused.

[11] Section 399A states:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[12] Morris Corporation assert that Mr Reposar has failed to follow up or carry on with the application after conciliation. I accept that the FWC conciliator was unable to contact Mr Reposar after the unsuccessful conciliation. However, Mr Reposar participated in the conciliation and has not, at least as yet, failed to comply with a direction issued by the FWC. In the current circumstances I was not satisfied that his behaviour has been established as unreasonable such that the application should be dismissed pursuant to s.399A.

[13] As a consequence, the Morris Corporation motion to have Mr Reposar’s unfair dismissal application dismissed was refused and the application was listed for arbitration. An Order (PR576693) reflecting this decision will be issued.

Appearances (by telephone):

J Reposar on his own behalf.

K Van Der Merwe representing the Respondent.

Hearing (Conference) details:

2016.

Perth:

1 February.

 1 (1964) 112 CLR 125, at 129

 2   Ibid

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