K v The Employer

[2022] FWC 1148

[2022] FWC 1148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

K
v

The Employer

(U2022/5294)

COMMISSIONER BISSETT MELBOURNE, 17 MAY 2022

Application for an unfair dismissal remedy – repeated application in relation to same

dismissal – first application dismissed following settlement agreement – second, third and fourth applications dismissed – application has no reasonable prospect of success – abuse of process by applicant – s.587(1)(c) –  application dismissed on Commission’s own initiative.

1. On 11 May 2022 Mr K (the Applicant) made an unfair dismissal application in relation to his dismissal by the Employer (the Respondent) in December 2020 (the dismissal). This is the fifth application made by the Applicant in which he seeks a remedy for unfair dismissal in relation to that dismissal. He has also made numerous other applications in relation to his dismissal that have been dismissed.

1. The Applicant settled his first application in conciliation. The application for unfair dismissal was subsequently dismissed as, a binding settlement agreement having been reached, it was determined that the unfair dismissal application had no reasonable prospects of success.[1] The Applicant then lodged two appeals against this first decision to a Full Bench. They were not successful[2].

1. The Applicant’s subsequent applications for unfair dismissal were dismissed for being either out of time or because they had no reasonable prospects of success as he had already made applications in relation to the dismissal which had been dismissed.[3] Those decisions have variously indicated that the Applicant cannot continue to pursue a remedy for unfair dismissal in relation to the dismissal from the employer.

1. The Applicant has most recently (prior to this application) again sought to appeal the first decision to dismiss his application. This appeal could not proceed as the matter had already been determined.

1. Section 587 of the Fair Work Act 2009 (FW Act) provides a broad discretion to the Commission to dismiss an application.

1. In circumstances where the Applicant has again made an application for a remedy for unfair dismissal in relation to the same dismissal and where four previous decisions have been issued dismissing his applications, I am satisfied that this fifth application should be dismissed as it has no reasonable prospects of success and nothing can come of it.

1. While the employer has been advised of the application I have not required the employer to file any response to that application. It is not necessary.

1. I have made this decision without seeking submissions from the Applicant or Respondent. I see no purpose in seeking submissions as the Applicant just plainly fails to accept that his application has been dealt with to finality by the Commission and there is no more we can do.

1. I have also dealt with his application without pursuing payment of the filing fee from the Applicant or seeking a waiver application. Whilst the non-payment of the filing fee or the grant of a waiver of that fee means the application has not been properly made, I am satisfied that the circumstances do not warrant the time or effort of Commission staff in having to pursue payment or assess a request for a waiver. The non-payment of the fee or grant of a waiver has not influenced my decision in any way. To be clear the application is not dismissed for any reason in relation to filing fee matters.

1. The Applicant must accept that the Commission can no longer deal with his dismissal. Further applications for a remedy for unfair dismissal in relation to the same dismissal will, to the extent the Commission has the power to do so and to the extent they go to the same dismissal, be dismissed.

COMMISSIONER

[1] K v The Employer [2021] FWC 2132

[2] K v The Employer [2021] FWCFB 3162

[3] K v The Employer [2021] FWC 6097, K v The Employer [2021] FWC 6380, K v the Employer [2022] FWC 167

Printed by authority of the Commonwealth Government Printer

<PR741568>