Maddison Noble v Smiling Samoyed Pty Ltd

[2023] FWC 267

[2023] FWC 267

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maddison Noble
v

Smiling Samoyed Pty Ltd

(U2022/12078)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 2 FEBRUARY 2023

Application for an unfair dismissal remedy – strike out – whether no reasonable prospects of success – interlocutory application dismissed

1. This published decision sets out and expands upon reasons for decision delivered by me ex tempore on 31 January 2023.

1. On 21 December 2022 Maddison Noble (the applicant or Ms Noble) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against Smiling Samoyed Pty Ltd (Smiling Samoyed, the respondent or the employer).

1. Ms Noble claims that she was dismissed on 12 December 2022 and that her dismissal was unfair within the meaning of s 394 of the FW Act.

1. Ms Noble’s application is premised on the proposition that she was forced to resign as a result of the respondent’s handling an incident between Ms Noble and another employee.  

1. Smiling Samoyed oppose the application and raise a jurisdictional objection that Ms Noble was not dismissed, but rather, freely resigned from her employment.

1. Conciliation was conducted on 23 January 2023. The matter did not resolve.

1. An application was made by the respondent on 30 January 2023 that Ms Noble’s application be dismissed under s 587 of the FW Act on the ground that it has no reasonable prospects of success (the strike-out application).

1. Having granted permission for Ms Noble to be represented, I conducted a directions hearing on 31 January 2023 at which time I received submissions from both parties on the strike-out application. Following this, I delivered my decision dismissing the strike-out application.

Submissions

1. Smiling Samoyed submit that Ms Noble’s application has no reasonable prospects of success because:

·   the respondent did not intend to terminate Ms Noble’s employment; and

·   Ms Noble, of her own volition, resigned from her employment and did so without serving out her notice period.

1. Smiling Samoyed denies the assertion by Ms Noble that she was forced to resign and posits that Ms Noble’s application cannot succeed for want of jurisdiction given her having not been dismissed.  

1. Ms Noble submits that the Commission should not dismiss her application as there is a real question to be answered on the facts and on the law.[1] Ms Noble’s position is that she should be afforded the opportunity to be heard on the basis that there are disputed facts that are yet to be established concerning the events surrounding her resignation, including whether or not at law she was dismissed within the meaning of the FW Act by the respondent.

Consideration

1. Section 587 of the FW Act provides:

“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. A decision whether to summarily dismiss is discretionary. The power to do so only exists where a jurisdictional pre-condition is made out, in this instance, if the application has no reasonable prospects of success. This involves an assessment of merit that is necessarily provisional (a full hearing having not been conducted) and a fair characterisation of the nature of the proceeding and issues raised.

1. It is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing.[2] The power should be “sparingly employed” and used only in a “clear case”.[3]

1. It is well-established that to conclude an application has no reasonable prospects of success should only be reached with caution and in circumstances where the application is “manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable”.[4]

1. The rationale for adopting this cautious approach is self-evident. The legislature has enacted a cause of action available to persons who are dismissed from employment and who are protected (within the meaning of the FW Act) from unfair dismissal. The effect of a strike-out order would be to extinguish an applicant’s right to have their substantive application heard and determined by the Commission. It is often not until a matter is fully heard and evidence (both in support and in response) taken and tested that the actual strength or weakness of a case emerges.[5] Further, a dismissed employee is entitled to test the case against them and may pursue litigation not just for the sake of remedy but to also to protect their reputation.[6]

1. That said, an overambitious litigant or one indifferent to the case against them runs the risk of conduct that falls foul of these statutory provisions.[7] Just as the legislature has enacted the unfair dismissal cause of action, it has also imposed checks on vexatious or hopeless cases by permitting applications to be summarily dismissed on s 587 grounds, and by permitting cost orders against parties or representatives in limited circumstances (either generally under ss 611(2) or specifically in the unfair dismissal jurisdiction under ss 400A and 401), at the Commission’s discretion.

1. The grounds on which Smiling Samoyed advance the strike-out application is that Ms Noble’s unfair dismissal application has no reasonable prospects of success given the jurisdictional issue.

1. The bar to establish this proposition, particularly at this stage of proceedings where the jurisdictional issue has not been heard and the case not fully tested, is high.

1. Is Ms Noble’s case manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable?

1. My provisional view is that whilst Ms Noble has a steep hill to climb given the concept of ‘forced resignation’ there is nothing inherent or so apparent that renders her application with no reasonable prospects of success. Noting that each case is different, there have been matters where a resignation has been held to have been forced where an employer’s conduct has given rise to a reasonably held view by an employee that their workplace is unsafe on account of that conduct.[8] It is to be noted that the statutory test is “no” reasonable prospects, not “low or few” reasonable prospects.

1. An employer not intending to dismiss an employee or compel their resignation does not point to an applicant’s case of ‘forced resignation’ having no prospects – intention is not a requirement or criteria to establish a forced resignation.

1. Further, that an employee may not have worked out the full period of their resignation required under a contract of employment or an industrial instrument, or changed their mind in not doing so, may be relevant to fact-finding and may be relevant to whether the resignation was forced, but is by no means determinative.

1. As the jurisdictional pre-condition in s 587(1)(c) has not been made out, I need not consider whether discretion to summarily dismiss should be exercised.

1. For the sake of completeness, and as a general observation only, I note that this conclusion does not mean that a party (or their legal representative) is not exposed to the future potential of a costs order once the application is determined including on the basis that the application “had” (under s 611(2)(b) or s 401(1A)(a)) no reasonable prospects of success. As evidence emerges at a jurisdictional or merit hearing, one’s case may strengthen or weaken. Further, in the conduct of litigation a party should reasonably be expected, in managing their case, to have regard to their prospects of success and what that success may look like.

Conclusion

1. For these reasons, Smiling Samoyed’s strike out application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A Wright, with permission, on behalf of Ms M Noble

Ms K Henning, of and on behalf of Smiling Samoyed Pty Ltd

Hearing details:

2023
Adelaide (by telephone)
31 January

[1] Shortland v The Smiths Snackfood Co Ltd[2010] FWAFB 5709 at 19.

[2] Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology[2017] FWCFB 5952

[3] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 at 8

[4] Baker v Salva Resources Pty Ltd[2011] FWAFB 4014; see also Go To Court Franchising Pty Ltd T/A Go To Court Lawyers v Lewis [2018] FWCFB 630

[5] Mitchell Shaw v Australia and New Zealand Banking Group Limited ta ANZ Bank; Bianca Haines[2014] FWC 3408 at 11

[6] Roy Morgan Research Ltd v Baker, Karen[2014] FWCFB 1175 at [12] citing Brazilian Butterfly Pty Ltd and Charalambous PR968915

[7] Roy Morgan Research v Baker[2014] FWCFB 1175 at [13]

[8] Green v KS United Pty Ltd[2022] FWC 3228

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