Mr K v The Employer - [2023] FWC 1341

[2023] FWC 1341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.372—General protections

Mr K
v

The Employer

(C2023/2420)

COMMISSIONER BISSETT

MELBOURNE, 19 JUNE 2023

Application to deal with other contraventions dispute

Mr K (the Applicant) has made his 27^th application to the Commission in which he seeks orders that he be reinstated to his employment with the Employer. For reasons that have previously been given the Commission will not issue the orders sought and the application is dismissed.

In making his application the Applicant completed a Form F1.[1] When asked on that Form what section of the Fair Work Act 2009 (FW Act) the application was made under, the Applicant indicated ‘Misrepresentation. Fair Work Act 2009. Section 345.’ Section 345 of the FW Act sits within the general protections provisions of the FW Act (Part 3-1, Div 3) and states:
345 Misrepresentations

(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.

Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

In the application the Applicant did not otherwise expand on what had occurred or who had misrepresented a workplace right.

Because the Applicant mentioned s.345 of the FW Act the file was designated as a ‘general protections’ application. Such designation is an administrative decision and should not be considered determinative (for the reasons given below) of the type of application actually made. The file was allocated to me to deal with.

Given the lack of clarity in what the Applicant claimed I wrote to the Applicant on 16 May 2023 and:
· Advised that, if his application was one to which s.372 of the FW Act applied, the Commission did not have the power to order that he be re-instated to his previous employment with the Employer.
· Requested he confirm in writing that part of the FW Act on which his application was based.
· Advised that, if his application was one made pursuant to the general protections provisions of the FW Act, he had failed to specify his case with enough particularity – that is he did not state who had made a false and misleading representation to him in relation to his workplace rights and which workplace right had been subject to this misrepresentation – such that the Employer could reply.
· Advised that, given the recent decision of the Federal Court in relation to his application for judicial review, the decisions of the Commission in relation the dismissal stood and would not be re-considered.

I invited submissions from the Applicant in relation to the matters raised. The Applicant replied on or about 16 May 2023. In that reply he stated:
· The employer had taken industrial action by barring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr K v The Employer

Details

AGLC: Mr K v The Employer [2023] FWC 1341
Case: [2023] FWC 1341
Decision Date: 19 JUNE 2023

CaseChat Overview and Summary

The Fair Work Commission, presided over by Commissioner Bissett, dismissed Mr K’s 27th application seeking reinstatement to his employment with The Employer. The application was made under Section 345 of the Fair Work Act 2009, which pertains to misrepresentations about workplace rights. However, the Commission found that the application was not properly made under this section and was unlikely to succeed. The Commission had previously communicated to Mr K that it did not have the power to order his reinstatement, but he continued to make multiple applications to the Commission, the Magistrates Court, and the Federal Court.

The Commission identified several issues in Mr K’s application, including the lack of clarity on what had occurred and who had allegedly misrepresented his workplace rights. The Commission requested Mr K to clarify the basis of his application, but his responses did not address the difficulties raised by his application, including the inability of the Commission to order his reinstatement. The Commission found that Mr K’s submissions traversed issues that it could not deal with or that had already been dealt with in past decisions or in his Federal Court proceedings.

The Commission found that Mr K’s continued approaches to the Commission were a waste of time and resources. Despite being advised on many occasions that the Commission could not and would not order his reinstatement, he continued to make multiple applications. The Commission determined that the time had come for Mr K to accept that his unfair dismissal application had ended and that the Commission would not re-open or revisit it in any way. The application was dismissed under Section 587 of the Fair Work Act on the grounds that it was not properly made and therefore had no reasonable prospect of success.

Orders