Mr K v The Employer

[2021] FWC 6380

[2021] FWC 6380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr K
v
The Employer
(U2021/9851)

COMMISSIONER BISSETT MELBOURNE, 22 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 9 November 2021 Mr K (the Applicant) made an application in relation to his dismissal from his employer. This is the third application made by the Applicant in relation to the termination of his employment. The Applicant sent his third application to various members of the Commission and to the lawyer who had acted for The Employer in previous matters. His application was subsequently allocated to me to deal with.

[2] On 11 November 2021 I determined that, prior to the application being served on the Respondent and in the circumstances outlined below, the Applicant should file submissions as to why I should not dismiss his application on the Commission’s initiative. Directions were issued requiring the Applicant to file any submissions by 15 November 2021. In those directions I indicated that there were three bases on which I was considering dismissing the application. These were:

(i) The application had no reasonable prospects of success (s.587(1)(c) of the Fair Work Act 2009 (FW Act)) as the first application had been heard and determined and an appeal in relation to that decision was not successful

(ii) The application was vexatious in that it was the third unfair dismissal application in relation to his dismissal. Further, the Applicant had made a number of bargaining applications in circumstances where he was not engaged in bargaining under the FW Act, had made applications for orders to stop bullying in circumstances where he was not employed and had made an application for the Commission to set aside the first decision in relation to his unfair dismissal application following his unsuccessful appeal against that decision

(iii) The application was not made in accordance with the FW Act in that the Applicant had failed to pay the required filing fee or submit a fee waiver application and said, on the fee payment form ‘You wasted 11 months of my life. Pay your own fee’.

[3] The lawyer representing the Respondent was made aware of the Directions issued to the Applicant but advised that no action was required of the Respondent at this stage. Given what has transpired I have not required the Respondent to file any material in relation to the application as I am able to properly determine the matter on the material filed by the Applicant.

SUBMISSIONS

[4] Following the issue of Directions my chambers received at least 6 emails from the Applicant, all of which were brief. He also made 5 phone calls – some received in my chambers and some by the Commission’s helpline.

[5] The emails from the Applicant were all of the same theme. Whilst worded differently each was to the effect that:

(i) The Applicant wanted his job back and/or an order for reinstatement

(ii) He would like his job back immediately/as soon as possible

(iii) Both the Commission and the Respondent engaged in fraud and colluded to falsely accuse him of things he had not done. This in itself is reason to reinstate him

(iv) He had been falsely accused of sex crimes

(v) Even though he had made the request, he had not been provided with any documentation by the Respondent or the Commission about any of his matters

(vi) Money he did not want was forced into his bank account

[6] The various phone calls from the Applicant were along similar lines.

[7] The information/submissions provided by the Applicant did not go to the matters raised in the Directions as to whether I should dismiss his application. For this reason on 16 November 2021 I wrote to the Applicant as follows (emphasis in original):

I refer to the directions issued to you on 11 November 2021 in which the Commission invited you to make any submissions you wished as to why she should not dismiss your application for unfair dismissal (the third application) on the grounds that it had no reasonable prospects of success and/or was vexatious or that she should dismiss your application as it was not made in accordance with the FW Act in that you did not pay the filing fee or [seek] a waiver.

Since those directions were issued you have sent 6 emails to the Commission and made numerous phone calls.

The Commissioner now intends to make a decision as to whether she should dismiss your application on the basis of the email[s] you have sent to the Commission.

If there is anything you wish to add you may do so in writing by 5.00pm Wednesday 17 November 2021. If you do so what you put in writing should address why the Commissioner should not dismiss your application on the grounds that it has no reasonable prospect of success as your dismissal has already been dealt with by the Commission.

[8] On 16 November 2021 the Applicant sent a further email to the Commission. It is not clear if this was in response to the further Directions but I have accepted it as further submissions. A further email was sent by the Applicant on 17 November 2021 and another on 18 November 2021. None adds to the views already expressed by the Applicant – that he wants his job back and has never been given reasons for his dismissal, has falsely been accused of sex crimes and that the Commission and/or the Respondent has engaged in fraud which provides grounds for his immediate reinstatement.

[9] In addition to the repetition of the matters above the Applicant also raises a range of other matters including a complaint in relation to his union and his (at that time) lawyer.

CONSIDERATION

Background

[10] The Applicant was dismissed from his employment in December 2020. With the support of his union he made an application seeking a remedy for unfair dismissal (the first application). 1 That application was subject to a conciliation before Commissioner Hampton on 18 March 2021 where an agreement was reached to settle the Applicant’s claim. The terms of that agreement were recorded as was the Applicant’s and Respondent’s agreement to the terms.

[11] The Applicant failed to sign the terms of settlement and requested that his application for relief from unfair dismissal be heard. A hearing was held on 9 April 2021 before Commissioner Platt. Commission Platt issued a decision 2 in which he dismissed the application on the grounds that a binding settlement agreement had been reached between the parties and the unfair dismissal application therefore had no reasonable prospects of success.

[12] Commissioner Platt set out in his decision transcript of the recorded agreement reached between the Applicant and Respondent before Commissioner Hampton (including the payment of a settlement amount and that the Applicant would be recorded as having resigned from his employment). It is clear that the Applicant confirmed the terms of settlement before Commissioner Hampton and the Respondent and he confirmed that he did so before Commissioner Platt.

[13] The Applicant subsequently appealed the decision of Commissioner Platt in two separate applications. 3 By decision4 the Full Bench did not grant permission to appeal finding no error in the decision of Commissioner Platt.

[14] Between 19 August 2021 and 7 September 2021 the Applicant made:

•  An application to deal with a bargaining dispute 5 (s.240 of the FW Act)

•  Two applications for a serious breach declaration 6 (s.234 of the FW Act)

•  An application for a revocation of a protected action ballot order 7 (s.448 of the FW Act)

•  An application for bargaining orders 8 (s.229 of the FW Act)

•  An application for an order to stop bullying 9 (s.789FC of the FW Act)

•  An application to deal with an industrial dispute in accordance with a dispute settling procedure 10 (s.739 of the FW Act)

•  Two corrupting benefits applications 11

•  An application to deal with an unlawful termination dispute 12 (s.773 of FW Act)

•  An application for revocation of a decision (s.603 of the FW Act).

[15] Each of these applications was either dismissed by decisions 13 by Members or were withdrawn by the Applicant.

[16] On 6 September 2021 the Applicant made a further application seeking relief from unfair dismissal (the second application). 14 That file was allocated to me and was listed for hearing to determine if an extension of time should be grated within which the application may be made as it had been filed 238 days after the 21 day period specified in the FW Act for making such an application. I ultimately dismissed the second application by decision15 on 20 October 2021. Whilst I was satisfied that the circumstances confronting me in relation to the application of the Applicant were unusual I also found that allowing the Applicant to pursue his unfair dismissal application would, in all probability and given the decision in the first application, result in it being dismissed pursuant to s.587 of the FW Act for the reasons given in Grabovsky v United Protestant Association NSW Ltd (Grabovsky).16

[17] In Grabovsky the Full Bench of the Commission was considering an appeal against a decision where an application had been dismissed by a Member on the grounds that it had no reasonable prospect of success in circumstances where the application was in essentially similar terms to an earlier, unsuccessful, application. In its decision the Full Bench made some observations relevant to the case before me where similar applications were made:

[26] Cases where an applicant seeks to rerun in the Commission an application, the substance of which has already been heard and determined, fall for consideration under s 587, either on the Commission’s own motion or on application by a party. The Commission must afford an applicant in any matter natural justice, but the content of natural justice depends on the circumstances. The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission. It is unfair for their opponents to be entangled in repetitive litigation. And parties in other matters deserve their turn to be heard.

[27] The Full Federal Court in Miller, speaking of abuse of process, warned of the danger that ‘persistent or unattractive litigants with awkward cases’ might be refused access to justice if too broad an approach were adopted to staying actions which are ‘somewhat like a previous proceeding.’ 17… 

[18] The views expressed by the Full Bench remain relevant to this matter and should be noted by the Applicant.

[19] It is against this background that the Applicant has made the third application subject to this decision.

Does the application have no reasonable prospect of success?

[20] I am satisfied that this application (the third application) for relief from unfair dismissal made by the Applicant has no reasonable prospect of success.

[21] It should be apparent that the Applicant has not addressed the question of whether his application has any reasonable prospects of success in the material filed by him. In particular he has not addressed how the Commission could hear his third application given the decision (and appeal decision) in the first application.

[22] The first application of the Applicant was heard and determined. There is no doubt that the Applicant agreed to the terms of settlement and, consequently, Commissioner Platt dismissed the application because it had no reasonable prospects of success. 18

[23] These findings, as I said, were not disturbed by the Full Bench. The Applicant acknowledges the appeals he made but does not accept the effect of the decisions of Commissioner Platt or the Full Bench in that the Applicant’s case cannot be heard. He also does not appear willing to accept that, without a hearing on the merits (which cannot occur), the Commission cannot and will not order his reinstatement to employment with the Respondent.

[24] The second application made by the Applicant in relation to his dismissal was in the same terms and related to the same dismissal as the first application. On its face it had no reasonable prospect of success although it was ultimately dismissed as it was filed out of time.

[25] The third application is in relation to the same dismissal as the first and second applications.

[26] Since the first application the Applicant has sought to raise concerns with the payment of the settlement amount to him and has complained that he has not received documentation (presumably in relation to his dismissal) from the employer or that he has sought from the Commission. The absence of documentation was a common theme in the Applicant’s various emails in relation to the second and third applications.

[27] I would observe that, in filing his first application for unfair dismissal, the Applicant included in that a detailed letter of allegations put to him by the Respondent, his response to that and the letter of dismissal (which included the outcome of the Respondent’s investigation into the allegations) given to him. When the Applicant raised concerns at what documents had been provided to the Commission by the Respondent he was provided with a copy of the Commission’s file in relation to his application. The Applicant subsequently provided that copy of the file in his first application to the Commission in relation to the hearing of the extension of time in relation to the second application. Whilst making no finding as to the validity of any decision to dismiss the Applicant it is clear that the Applicant has received, in writing, the reason for his dismissal. The basis of this complaint is unclear.

[28] It is not evident from any material filed by the Applicant that the Commission and/or the Respondent have colluded or engaged in fraud, nor is there any material that suggests the reason for dismissal of the Applicant was for, or was related to, sex crimes. The money the Applicant complains of is apparently the settlement amount he agreed as part of the settlement agreement in conciliation before Commissioner Hampton.

[29] It is apparent that the Applicant is not prepared to accept that he settled his (first) unfair dismissal application in conciliation. No amount of patient explanation with him appears to bring him to acceptance of what he has agreed to.

[30] Further the Applicant is not prepared to accept that, having settled matters associated with his dismissal, the Commission cannot order that he be reinstated to his previous job with the Respondent. There is nothing raised that suggests the Respondent has failed to comply with the terms of the settlement agreement reached but, in any event, compliance is not a matter for the Commission.

[31] To the extent the Applicant implies problems with his union and/or legal advice, again these are not matters for the Commission and do not provide grounds for the Applicant’s application to be heard or for the Commission to direct the Respondent to give the Applicant his job back.

[32] Nothing put by the Applicant provides a basis to conclude his third application has anything but no reasonable prospect of success.

CONCLUSION

[33] Section 587 of the FW Act provides the Commission with the power to dismiss an application in specified, but not limited, circumstances. Section 587 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.”

[34] In my discussion of the issues before me above I have not dealt with whether this third application, when considered in addition to the other applications made by the Applicant, is vexatious. The Applicant has failed to address this issue and it is unnecessary that I reach any conclusions. To the extent he makes more applications however he opens himself to a finding that such further applications are vexatious.

[35] The third application of the Applicant in relation to the termination of his employment has no reasonable prospect of success before the Commission. He settled his dispute and his first application was dismissed. His second application was also dismissed and no extension of time granted. This application has nowhere to go.

[36] The Applicant’s application for relief from unfair dismissal has been dealt with to finality by the Commission. It has been subject to conciliation and then hearing where the application was dismissed. The appeals were heard and dismissed. The Applicant needs to accept this finality in relation to any action to be taken in the Commission in relation to his grievance. The Commission cannot now give the Applicant his job back. More applications to the Commission will not change this fact.

[37] As was observed in Grabovsky (above):

The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission. It is unfair for their opponents to be entangled in repetitive litigation. And parties in other matters deserve their turn to be heard.

[38] I would observe that, even if I did accept the truthfulness of the claims made by the Applicant in his correspondence to the Commission, none of these claims are enough for me to conclude that the third application has a reasonable prospect of success. The matters raised by the Applicant are not matters the Commission is empowered to deal with.

[39] The Applicant has now exhausted his options with the Commission in relation to his dismissal.

[40] The application for relief from unfair dismissal is dismissed on the grounds that it has no reasonable prospect of success. An order 19 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR735913>

 1   U2021/252

 2   Mr K v The Employer [2021] FWC 2132

 3   C2021/2514 and C2021/3838.

 4   Mr K v The Employer[2021] FWCFB 3162

 5   B2021/710

 6   B2021/711 and B2021/910

 7   B2021/717

 8   B2021/870

 9 AB2021/506

 10   C2021/6151

 11   ADM2021/9 and see AB2021/506

 12   C2021/6464

 13   Mr K v The Employer [2021] FWC 5489, [2021] FWC 5610,  [2021] FWC 5611 and [2021] FWC 5943

 14   U2021/8089

 15   Mr K v The Employer[2021] FWC 6097

 16    [2019] FWCFB 1964 

 17   Miller v University of New South Wales [2003] FCAFC 180 at [81]

 18   Mr K v The Employer [2021] FWC 2132

 19   PR735914.