Mr Peter Evan John Morris v Crown Equipment Pty Ltd
[2009] FWA 317
•21 SEPTEMBER 2009
[2009] FWA 317 |
|
DECISION |
Workplace Relations Act 1996
s.643 – Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
v
Crown Equipment Pty Ltd
(U2009/10291)
COMMISSIONER WILLIAMS | PERTH, 21 SEPTEMBER 2009 |
Termination of employment – frivolous, vexatious or lacking in substance.
[1] Mr Morris has lodged an application for relief in respect of his termination of employment by Crown Equipment Pty Ltd (Crown). The application was made under s. 643(1)(a) of the Workplace Relations Act 1996 (the Act) on the ground that the termination was harsh, unjust or unreasonable.
[2] Crown filed a Notice of Motion to Dismiss the Application on the ground that the application was frivolous, vexatious or lacking in substance, as is provided for in s. 646(1). Crown also indicated that it objected to conciliation occurring before this motion was dealt with.
[3] Section 646(3) provides that the Commission is not required to hold a hearing in relation to the making of an order under s. 646(1). Section 648 sets out the procedure to be followed in such instances.
[4] Consequently, I sent a notice to the parties explaining the scheme of the legislation and inviting both parties to provide further information that I would consider when deciding whether or not to make the order sought by Crown dismissing this application.
[5] Both parties have provided information in response to this invitation. Having considered that information I have decided not to hold a hearing, but rather decide the matter on the basis of the information provided by the parties.
Background
[6] Crown argue that Mr Morris was issued a formal warning letter in November 2008 for unsatisfactory work practice and failure to carry out the correct work procedures, that this was followed by a second letter formally warning him about continued breaches and non-compliance with company policies and procedures with regard to safety in February 2009 and that there was then a final incident on the 25th of June 2009 regarding what they assert was a serious breach of safety and an unlawful act with regard to electric safety.
[7] Crown submit that at a meeting on the same day between Mr Morris and his manager regarding this final incident Mr Morris chose to resign. A letter of resignation apparently signed by Mr Morris was attached to the information provided by Crown.
[8] These final points made by Crown regarding the final meeting on the day of termination are consistent with the information provided in the application as lodged. However the applicant provided a different context to the resignation as follows.
[9] In his application Mr Morris explained that at this meeting he was handed a resignation and told to sign it or they will sack him and that he signed it as he had no choice.
Relevant legislative provisions
[10] Section 646 of the Act allows a respondent to move for the dismissal of an application on the grounds that it is frivolous, vexatious or lacking in substance. This provision is as follows:
“646 Applications that are frivolous, vexatious or lacking in substance
(1) If:
(a) an application is made, or purported to have been made, under subsection 643(1):
(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground; and
(b) the respondent moves for dismissal of the application on the ground that it is frivolous, vexatious or lacking in substance; and
(c) the Commission is satisfied that the application is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 643(1)(a);
the Commission must:
(d) if subparagraph (a)(i) applies—make an order dismissing the application; or
(e) if subparagraph (a)(ii) applies—make an order dismissing the application to the extent that it is made on the ground referred to in paragraph 643(1)(a).
(2) If:
(a) an application is made, or purported to have been made, under subsection 643(1):
(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground; and
(b) the respondent moves for dismissal of the application on the ground that it is frivolous, vexatious or lacking in substance; and
(c) the Commission is not satisfied that the application is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 643(1)(a);
the Commission must:
(d) if subparagraph (a)(i) applies—make an order refusing the motion for dismissal; or
(e) if subparagraph (a)(ii) applies—make an order refusing the motion for dismissal, to the extent that the application is made on the ground referred to in paragraph 643(1)(a).
(3) The Commission is not required to hold a hearing in relation to the making of an order under subsection (1) or (2).”
Principles
[11] The onus lies on the respondent who has made the Motion to Dismiss to satisfy the Commission that the application should be dismissed at this early stage, without a full hearing of the merits of the application, because the application is frivolous, vexatious or lacking in substance.
[12] The legal principles to be applied in determining a motion for summary dismissal of a substantive application such as this were considered by his Honour Vice President Lawler in Fullerton v Gimbala Pty Ltd t/as Coolibah Hotel 1and are set out as follows:
“[6] In the courts, the test for summary dismissal based on a lack of strength in an applicant’s case is that articulated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW). 2 Barwick CJ observed:3
‘The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense.”
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance.”
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.’
[7] Barwick CJ then referred to the judgment of Dixon J in Dey v Commissioner for Railways 4 where his Honour held:5
‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. ... Once it appears that there is a real question to be determined whether or fact or law and that the rights of the parties depend on it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’
and continued (p 130):
‘Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p. 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’”
[13] For the Notice of Motion to be upheld the respondent must satisfy the Commission that the applicant’s case is so clearly untenable that it cannot succeed.
Is the application frivolous or vexatious or lacking in substance?
[14] In the circumstances of this case, superficially it appears that there was not a termination but rather a resignation. The legislation however recognises that in some situations an employee's resignation may be accepted as being a termination at the initiative of the employer for the purposes of the Act (see s. 642(4)). At this preliminary stage I am not able to determine whether or not what occurred was a termination at the initiative of the employer.
[15] Separately, accepting for the purposes of argument that Crown’s submissions regarding previous written warnings are correct this is not of itself enough for the Commission to conclude that the application is frivolous, vexatious or lacking in substance.
[16] The Motion made by Crown to summarily dismiss the application requires the Commission to be satisfied that the case for Mr Morris is so untenable that it cannot possibly succeed. I am not satisfied that the respondent has demonstrated that is the case. Whatever difficulties there may be for Mr Morris to satisfy the Commission that firstly he was terminated at the initiative of the employer and that if this was the case the termination was unfair, it cannot be said that it is impossible. Consequently, I must dismiss Crown's motion to dismiss the application.
[17] The Commission will now contact Mr Morris to confirm that he wishes to continue with his application. If he does, the matter will be listed for a conciliation conference.
COMMISSIONER
1 PR972004, 7 July 2006.
2 (1964) 112 CLR 125
3 at p.129
4 (1940) 78 CLR 62
5 at p.91
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