Mr K v The Employer Summary

[2023] FWC 152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr K
v

The Employer

(U2023/350)

COMMISSIONER BISSETT

MELBOURNE, 23 JANUARY 2023

Application for an unfair dismissal remedy

On 21 December 2022 I dismissed the seventh application made by Mr K (the Applicant) for unfair dismissal with respect to his employment with the Employer (the Respondent). That decision also dismissed an application for the Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) in relation to incidents at the time he was employed by the Respondent. The Applicant is no longer employed by the Respondent having been dismissed in December 2020.

Subsequently, on 11 January 2023 the Applicant has made this, his eighth application for unfair dismissal and his 24^th application to the Commission since the date of his dismissal.

On 18 January 2023 my chambers wrote to Mr K informing him of my preliminary view that the application should be dismissed on the basis that it has no reasonable prospect of success for the reasons given in previous decisions. That correspondence sought from the Applicant any submissions as to why I should not dismiss the application.

Material received from Mr K later that day requested the Commission to either hold a hearing or issue a certificate “stating that the Commission was unable to deal with issue in accordance with the fair work act” [sic]. The Applicant reiterated that the Respondent “has, at no point in time, had a valid reason for making me unemployed.”

For the reasons given in the 7 previous decisions issued by Members of the Commission relating to unfair dismissal applications of the Applicant and in the decision in which the Applicant’s appeals were dismissed, this most recent application for unfair dismissal is dismissed pursuant to s.587(1) of the FW Act on the grounds that it has no reasonable prospect of success.

The Applicant has now made 24 applications to the Commission over 2 years in relation to his employment. The matter is finalised. No hearings will be held in relation to applications made by Mr K. It is not possible for the Commission to order any of the remedies sought by the Applicant and the Commission will not be issuing any certificate of the type sought by the Applicant (even if such a certificate did exist).

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr K has applied for an eighth time to the Fair Work Commission for a remedy in respect of his unfair dismissal by The Employer. The Applicant has been dismissed and is no longer employed by the Respondent. The Commission has dismissed the application on the basis that it has no reasonable prospect of success, and this is the eighth such dismissal of an application by the Applicant. The matter is now finalised and the Commission will not hold any further hearings or issue any certificate of the type sought by the Applicant.

The legal issue before the Commission was whether the application had a reasonable prospect of success. In considering this, the Commission noted that the Applicant had made 24 applications to the Commission over a period of 2 years in relation to his employment and dismissal. The Commission had already dismissed 7 previous applications for unfair dismissal made by the Applicant and, in a further decision, had dismissed the Applicant’s appeals. The Commission found that, given the history of the matter and the findings in the previous decisions, the application had no reasonable prospect of success.

In reaching its decision, the Commission noted that the Applicant had not provided any new evidence or arguments that would change the outcome of the previous decisions. The Commission considered that it was not possible to order any of the remedies sought by the Applicant and that it would not issue any certificate of the type sought by the Applicant. The Commission concluded that the application should be dismissed on the basis that it had no reasonable prospect of success.

The orders of the Commission were that the application be dismissed and that no further hearings will be held in relation to applications made by the Applicant. The Commission will not issue any certificate of the type sought by the Applicant.

Mr K v The Employer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established