K v The Employer

[2022] FWC 3003

[2022] FWC 3003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

K
v

The Employer

(U2022/10425)

COMMISSIONER BISSETT MELBOURNE, 14 NOVEMBER 2022

Application for an unfair dismissal remedy – repeated application in relation to same dismissal – application has no reasonable prospect of success – application dismissed under s.587(1)(c) at the Commission’s initiative

1. On 28 October 2022 Mr K (the Applicant) made his fifth direct application for a remedy for unfair dismissal in relation to the termination of his employment in December 2020 by the Employer (Respondent) pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant has made many other applications related to the termination of his employment or subsequent decisions issued by the Commission in relation to those applications. This history is detailed in a decision[1] of the Commission on 7 February 2022 (February 2022 decision) and is not repeated here. Subsequent to the February 2022 decision the Applicant made two further applications, both dismissed by me in a decision[2] issued on 22 June 2022.

1. On receipt of the application now before the Commission, my chambers wrote to the Applicant and advised him that I had reached a provisional view, for the reasons similar to those set out in the February 2022 decision, that this most recent application made by him should be dismissed and asking for any submissions he may have as to why I should not do so to be provided in writing.

1. The Applicant provided submissions in response to my request. Unfortunately those submissions do not address the matter that I have to deal with – that is, whether his application should be dismissed as it has no reasonable prospect of success.

1. In his submissions the Applicant has repeated many of his previously made submissions. These include that various people and organisations, including the Respondent and the Commission, have colluded to force him into a settlement agreement with the Respondent which included a statement that he had resigned when he had not done so; that evidence was withheld from him; that crimes have been manufactured against him; that his application was at no point “resolved of settled” and that, in reaching the settlement agreement, neither the Commission nor the Respondent followed correct processes.

1. The Applicant also says that his objection to “being made unemployed without explanation” is valid and his application for relief from unfair dismissal remains valid. He says that all he seeks is “to have a discussion about my employment”. He continues to seek reinstatement to his previous employment with the Respondent.

1. Further unsolicited submissions were received from the Applicant on 11 November 2022 that listed the witnesses he would call if his application was heard. This is not relevant to the matter I need to decide.

Legislation

1. Section 587 of the FW Act sates

“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.”

1. In relation to the current application the Commission has acted on its own initiative. Being familiar with that history of applications made by Applicant, I consider I had reasonable grounds to take this course.

Consideration

1. In the February 2022 decision I found that:

[20]   In circumstances where issues associated with the termination of the Applicant’s employment are well settled on the first application, where two further applications for remedy for unfair dismissal have been dismissed and where the Commission does not have the power to do as the Applicant seeks (order he be given his job back), I am satisfied that this fourth application has no reasonable prospects of success and should be dismissed. The Applicant needs to accept the decisions of the Commission and should cease and desist from any further application to the Commission about this dismissal.

1. The circumstances have not changed with the effluxion of time. The Applicant needs to accept that the Commission cannot and will not consider any application in which he seeks a remedy for unfair dismissal in relation to the termination of his employment from the Respondent in December 2020. His application was settled by agreement between the parties in early 2021. This settlement agreement was recorded and transcript laid out in the subsequent decisions. The Commission does not have the power to hear his application or to order his reinstatement with the Respondent absent any order from a court of competent jurisdiction that we should do so.

1. To put it plainly, the Commission cannot hear the application. The matter is closed. The continued attempts by the Applicant to have matters related to his dismissal heard will not change that fact or result in the Commission further hearing from him on this matter.

1. The Applicant’s application for unfair dismissal is (again) dismissed. It has no reasonable prospect of success as he entered into an agreement to settle his claim. An order[3] reflecting this decision will be issued.

COMMISSIONER

[1] K v The Employer[2022] FWC 167.

[2] K v The Employer[2022] FWC 1592.

[3] PR747864

Printed by authority of the Commonwealth Government Printer

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