K v the Employer

[2022] FWC 167

[2022] FWC 167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

K
v

The Employer

(U2022/919)

COMMISSIONER BISSETT MELBOURNE, 7 FEBRUARY 2022

Application for an unfair dismissal remedy – repeated application in relation to same dismissal – first application dismissed following settlement agreement – second and third applications dismissed – application has no reasonable prospect of success – s.587(1)(c)) application dismissed on Commission’s own initiative.

1. On 19 January 2022 Mr K (the Applicant) made an application to the Fair Work Commission seeking a remedy for unfair dismissal. The Applicant was employed by The Employer (Respondent) commencing in or about 2012. His employment was terminated on 21 December 2020.

1. This is the fourth application made by the Applicant pursuant to s.394 of the Fair Work Act 2009 (FW Act). It is worthwhile noting that he has, in addition, made various other applications to the Commission that are related in some way to the termination of his employment and what followed. These applications have been made pursuant to the dispute settling procedures and the bargaining provisions of the FW Act and have been dismissed.

1. The Applicant made his first application seeking remedy for unfair dismissal in January 2021 (within the time limit prescribed by the FW Act). This application was subject to a conciliation where an agreement to settle the application was reached and recorded. Subsequent to that conciliation the Applicant sought to have his unfair dismissal application determined. This was heard by Commissioner Platt who, after hearing from him and the Respondent, dismissed the application on the grounds that it had no reasonable prospect of success as a binding settlement agreement had been reached between the Applicant and the Respondent.[1]

1. The Applicant subsequently filed two appeals against the decision of Commissioner Platt. Each of these appeals was dismissed by a Full Bench of the Commission after hearing from the Applicant.[2] An application by the Applicant to have the decision of the Full Bench set aside was also dismissed.

1. On 6 September 2021 the Applicant made his second application seeking relief from unfair dismissal in relation to his dismissal on 21 December 2020. That matter was allocated to me and I determined, in the first instance, to consider whether I should extend the time within which the application could be made. Ultimately, after conducting a hearing in which I heard evidence and submissions from the Applicant, I dismissed the application for an extension of time, having found that there was “no utility in granting an extension of time. The unfair dismissal application cannot succeed as it was settled through a binding agreement as found by Commissioner Platt and confirmed by the Full Bench. An application before me could not overturn either of those decisions.”[3]

1. On 9 November 2021 the Applicant made his third application seeking a remedy for unfair dismissal in relation to his dismissal on 21 December 2020. That matter was also referred to me and, after seeking submissions from the Applicant I dismissed his application on the grounds that it had no reasonable prospect of success.[4] In reaching this decision I observed that the Applicant “has now exhausted his options with the Commission in relation to his dismissal.”[5]

1. The Applicant has not taken notice apparently of any of the decisions in which his application has been dismissed or not dealt with because he has exhausted proceedings in the Commission in relation to his dismissal. He has, on 19 January 2022 now made this, his fourth application, seeking a remedy for unfair dismissal in relation to the termination of his employment on 21 December 2020.

1. Following receipt of the fourth application I sought submissions from the Applicant. In doing so I directed that the Applicant:

…file with the Commission any submissions as to why the Commission should not dismiss your application on the grounds that it has no reasonable prospect of success in circumstances where:

·  Your first application was dismissed following settlement of the matter and an appeal dismissed by the Full Bench;

·  a second application was dismissed because it was out of time and it had no reasonable prospects of success; and

·  there must be finality to your continued pursuit of a matter that has been resolved.

1. The Applicant has ignored the directions and rather seeks to command the Commission to issue an order giving him his job back with the Respondent. His written material is generally a repetition of:

…You [the Commission] have helped a business lie, falsely accuse me of rape, and forced me out of my employment. 

Could you please make an order for my re-[i]nstatement 

…You have wasted enough of my life by not including me and lying to me, I don’t appreciate it, it’s against the law, so if you don’t mind, please make an order today please.[6] 

1. Needless to say, there is no evidence to support his first claim, his second claim for reinstatement is not a plausible outcome and there is no evidence that the Commission has lied or misled the Applicant in any way and the third is without foundation.

1. There are no grounds that have been advanced by the Applicant that would suggest his application has any prospect of success. As highlighted above, this is his fourth application in relation to the same dismissal.

1. The Applicant seems unwilling to accept that he did reach a settlement agreement with the Respondent in relation to his first application and the consequence of that agreement is that he no longer has a claim against the Respondent. As much as the Applicant might wish for his job back with the Respondent he must now accept that this is not something within the Commission’s powers to grant.

1. On 28 January 2022 the Applicant left two voicemail messages with my chambers (in addition to the emails he has sent) in which he said he had “not had a hearing” and requested one with his previous employer present and/or demanded that “background clauses” be provided to him.

1. On the Applicant’s insistence I did conduct a hearing in relation to his application on 4 February 2022. In so doing I indicated that the purpose of the hearing was for me to hear from the Applicant as to why I should not dismiss his application on the grounds that it had no reasonable prospect of success. The Applicant represented himself at the hearing. The Respondent sought permissions to be represented by a lawyer pursuant to s.596(2) of the FW Act. Given the history of various applications made by the Applicant against the Respondent in the Commission, the Respondent’s lawyer’s familiarity with those matters and that the hearing was jurisdicational in nature I determined that the requirements of s.596(2)(a) of the FW Act were met and decided to grant permission.

1. At the hearing the Applicant put forward no reason as to why his application should not be dismissed other than he wants his job back with the Respondent. He made some claims in relation to police interference at some point in relation to his dismissal but produced no evidence (having had over a year to do so). 

1. I do note that the Applicant has now had the opportunity to be heard in relation to his dismissal and related matters in conciliation before Commissioner Hampton, in a hearing before Commissioner Platt, a hearing before the Full Bench, a hearing in relation to the second application before me and in the hearing in relation to this application. It is not that the Applicant has not been heard but rather that he does not accept the outcomes of the hearings he has had.

1. In relation to this fourth application the Applicant has been given every opportunity to put submissions to the Commission which respond to my concern that the application has no reasonable prospect of success. He has not done so. He has already been heard on a number of occasions but patently refuses to accept the outcome. Having heard the Applicant on this last occasion there is nothing he has put to me that suggests a hearing is warranted or would result in any other outcome than that below.

1. Section 587 of the FW Act states that:

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 tis case the Commission has acted on its own initiative. Being familiar with the history of the matter I had reasonable grounds to take the course indicated.

1. 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. In dismissing the application I note that the Applicant has had his filing fee waived in all of the applications made by him to date that require a filing fee to be paid (including the four applications seeking remedy for unfair dismissal). Given the Applicant’s continued abuse of the unfair dismissal process I would strongly recommend to the relevant officer of the Commission that, should the Applicant make a further application in relation to this dismissal for which a filing fee is required to be paid, any application for a waiver of that fee be considered in light of his refusal to accept that his application for remedy for unfair dismissal cannot be progressed in the Commission, his continued abuse of Commission processes and in light of the fact that it is highly unlikely any future application for remedy from unfair dismissal in relation to the same dismissal will succeed as it currently stands. 

1. An order[7] reflecting this decision will be issued.

COMMISSIONER

[1] K v The Employer  [2021] FWC2132

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

[3] K v The Employer [2021] FWC 6097 at [71]

[4] K v The Employer [2021] FWC 6380

[5] Ibid at [39]

[6] See, for example, the email from the Applicant to the Commission dated 20 January 2022

[7] PR737795

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