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

1. 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.

1. 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.

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

1. 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.

1. 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.

1. 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 him from the workplace without the requisite notice.

   ·     Allegations were made by a manager with respect to the Applicant’s relationship with a co-worker.

   ·     Untruths had been said about him in a conference before the Commission and neither the manager nor co-worker were present at that conference.

   ·     His complaints about the conduct of others had not been addressed and he had been attempting to get a fair hearing about his employment.

   ·     The Respondent had been allowed to rely on hearsay against him.

   ·     This amounts to a misrepresentation of his employment rights and conditions of employment with this fraud causing him to lose his job.

   ·     He has further claims against the employer in the Magistrates Court.

1. In conclusion the Applicant said he hoped the Commission would ‘take [his] application seriously, and allow his application to proceed.’ He hoped for orders for reinstatement.

1. To the extent the Applicant continues his claim with respect to misrepresentation this appears to relate to what occurred (on his statement) in a conference before the Commission at the time he reached an agreement to settle his claim for unfair dismissal in early 2021. In this respect the Applicant’s submissions are no more than a re-hash of matters he has consistently raised with the Commission in his previous applications.

1. I gave the Employer an opportunity to make submissions in relation to the claim of the Applicant. The Employer submits that, while it is not clear from his application, from the submissions it is apparent the application is in the form of an unfair dismissal application given the matters raised and the remedy (orders for reinstatement) claimed. The Employer seeks that the application be dismissed pursuant to s.587 of the FW Act.

1. The Applicant filed submissions in reply to that of the Employer in which he re-stated claims previously made, sought the Commission ‘do something right’ by him and re-instate his employment.

1. The Applicant further communicated with the Commission on 2 June 2023 and 6 June 2023. In each of these the Applicant continues to argue that the Commission should issue an order giving him his job back. In addition, he makes a series of spurious and unsupported claims that are not detailed here.

Consideration

1. I am not satisfied that the Applicant has made an application in accordance with the general protections provisions of the FW Act. The Applicant has a history (in a number of the previous 26 applications) of finding a section of the FW Act and using the words of the section without regard to the context of that section within the FW Act. He has previously made applications in relation to agreement making, bullying, bargaining, industrial action and pursuant to other sections of the FW Act. The majority of these applications have raised issues in relation to the process by which he entered into a binding settlement agreement in relation to his initial unfair dismissal claim from January 2021. None of the applications have been successful because he settled his unfair dismissal application. Even if this current application was properly made pursuant to a readily identifiable section of the FW Act, it is not complete and would not allow the Respondent to reply in any meaningful.

1. The Applicant has been given every opportunity to clarify the basis of his application. While I appreciate he has responded to correspondence from the Commission, that correspondence failed to address the many difficulties raised by his application including the inability of the Commission, under any circumstances, to order his reinstatement. Further, his submissions do not more than traverse issues that the Commission cannot deal with or that have been dealt with in past decisions or in his Federal Court proceedings.

1. There is no doubt that the Applicant’s continued approaches to the Commission do no more than waste the time and resources of Commission staff. Despite all of the applications made where he has been advised on many occasions that the Commission cannot and will not order his reinstatement,[2] he continues to make multiple applications in the Commission, the Magistrates Court, and one application in the Federal Court.

1. As has been said in earlier decisions the time has come for the Applicant to accept that his unfair dismissal application has ended and the Commission will not re-open it or revisit it in any way. His needless applications to the Commission will not change this.

1. The application is therefore dismissed pursuant to s.587 of the FW Act on the grounds that it is not properly made and therefore has no reasonable prospect of success.

1. For reasons previously given I have determined that the name of the Applicant and Respondent should remain confidential.

COMMISSIONER

[1] A generic form to be used when no other appropriate form exists

[2] See for example Mr K v The Employer [2023] FWC 152

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