Ramesh Prasad v Prysmian Australia Pty Ltd

[2019] FWC 3418

[2019] FWC 3418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ramesh Prasad
v
Prysmian Australia Pty Ltd
(U2019/2787)

DEPUTY PRESIDENT DEAN SYDNEY, 17 MAY 2019

Application for relief from unfair dismissal – application to dismiss.

[1] On 13 March 2019 Mr Prasad made his third application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by Prysmian Australia Pty Ltd (the Respondent).

[2] The Respondent raised a number of jurisdictional objections to this application, including that it was made beyond the 21 day time frame prescribed by s.394 of the Act, that Mr Prasad was not dismissed, that he had failed to discontinue an earlier application, and that this application was frivolous, vexatious and without reasonable prospects of success.

[3] The matter was listed for hearing on 16 May 2019 to determine whether I should dismiss this application under section 587 of the Act.

[4] At the hearing, Mr Prasad appeared on his own behalf and Ms Bhatt from the Australian Industry Group appeared on behalf of the Respondent.

Background

[5] The following are the factual circumstances leading up to this application:

a. Mr Prasad’s employment ended on or around 8 October 2018. Mr Prasad said he was dismissed on this date, and the Respondent says his employment came to an end as a result of an agreement to mutually separate.

b. Mr Prasad lodged his first application for an unfair dismissal remedy on 17 October 2018 (The First Application).

c. The First Application was withdrawn on 9 November 2018 when Mr Prasad filed a Notice of Discontinuance with the Commission as part of a settlement agreement reached that day.

d. On 3 December 2018 Mr Prasad lodged another application for an unfair dismissal remedy (the Second Application).

e. The Second Application was heard by Commissioner Johns on 22 February 2019. The hearing of the Second Application dealt with the Respondent’s jurisdictional objection that it had been filed outside the 21 day time limit required by the Act.

f. Commissioner Johns issued a decision on 6 March 2019 (the Decision). The Commissioner dismissed the Second Application, finding that there were no exceptional circumstances warranting the granting of an extension of time. An order dismissing the Second Application was issued by the Commissioner on the same date.

g. On 7 March 2019 Mr Prasad wrote to the chambers of the Commissioner expressing his dissatisfaction with the Decision.

h. A reply was sent to Mr Prasad the following day, advising him that if he was dissatisfied with the Decision, he could appeal. This correspondence included a hyperlink to information about lodging an appeal located on the Commission’s website.

i. On 13 March 2019 this application, being the Third Application seeking a remedy in respect of his alleged unfair dismissal, was made.

j. Mr Prasad has not appealed the Decision.

[6] On 16 April 2019 the Commission wrote to Mr Prasad indicating that the Third Application appeared to have been made 135 days beyond the 21 day time limit. Mr Prasad was asked to provide a written explanation as to why he thought there were exceptional circumstances warranting the granting of an extension of time to file the Third Application.

[7] In his emailed reply of 24 April 2019, Mr Prasad explained some of the circumstances leading up to the making of the Third Application. I note his email does not include any reference to the Decision, nor that he had been provided with information as to how to appeal the Decision if he were dissatisfied with the outcome.

Submissions and Evidence

[8] Mr Prasad made written and oral submissions in support of the Third Application, which focussed on reasons why he said an extension of time should be granted. His reasons went primarily to issues of fairness, and that it would be unfair to deny him his right to have his application heard.

[9] The Respondent filed an outline of submissions prior to the hearing. In it, the Respondent contended that the Third Application should be dismissed pursuant to section 587(1)(b) and (c) of the Act on the basis that the Third Application is frivolous and/or vexatious and/or has no reasonable prospects of success.

[10] Section 587 of the Act 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.

[11] In support of their submissions, the Respondent relied on a decision of a Full Bench of the Commission in Grabovsky v United Protestant Association NSW Ltd 1 (Grabovsky). In Grabovsky, the Full Bench considered a decision in which an application was dismissed because the application was substantially the same as previous applications made by Mrs Grabovsky, and heard and determined by the Commission. Relevantly, the Full Bench said the following:

“[13]The Commissioner’s approach to the exercise of his discretion under s 587 was correct. Section 587(1) states that the Commission may dismiss an application if it is not made in accordance with the Act (s 587(1)(a)), is ‘frivolous or vexatious’ (s 587(1)(b)), or has ‘no reasonable prospect of success’ (s 587(1)(c)). In the course of considering whether to dismiss the application under s 587(1)(c), as UPA had urged him to do, the Commissioner took into account relevant considerations. He considered the substance of the 2017 Application and compared it with the 2014 Application. He compared the terms of the enterprise agreements that applied at the respective times. He concluded that the subject matter of the 2017 Application had already been determined by the Booth DP and Lawler VP decisions, and that it had no reasonable prospect of success. There was no error either in this approach or in its conclusion.

[14]We agree with the Commissioner that the 2017 Application sought to re-litigate matters that had already been determined. In such circumstances, not only was the decision to dismiss the application under s 587(1)(c) reasonably open to the Commissioner, it was clearly the appropriate decision to take. The proceeding had no reasonable prospect of succeeding. It would also have been unfair to UPA to allow Mr Grabovsky to rerun claims advanced on behalf of Mrs Grabovsky about workload and underpayments in the hope of achieving a different outcome.

…

[23]It is not necessary for us to decide whether the doctrine of res judicata applied to the proceedings before Commissioner Johns, or whether the 2017 Application constituted an abuse of process under the general law. The Commissioner stated that ‘principles akin to res judicata ought to be applied’. He did not decide that the doctrine of res judicata did apply, or that it required him to dismiss the matter. The fact that the 2017 Application was seeking to re-litigate the same matters was a highly relevant consideration in the exercise of the Commissioner’s discretion under s 587, not because the 2017 Application was barred or because an estoppel arose, but because there was no reason to expect any different result the second time around. The Commissioner concluded that the 2017 Application had no reasonable prospect of success.

…

[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.”

[12] The Respondent contended that the Third Application raised the very same issues that were raised by the Second Application. Because of this, the Respondent asserted that the Third Application had no reasonable prospects of success and was manifestly untenable or groundless, and therefore must fail. It argued that it was inevitable that the fate of the Third Application would be the same as the Second Application. Further, it argued that it was unfair to the Respondent that it be entangled in further and repetitive litigation in relation to this matter, and accordingly should be dismissed by the Commission pursuant to section 587(1) (c) of the Act.

Consideration

[13] As Mr Prasad was unrepresented, he was provided with ample opportunity to put any submissions he wished to make as to why the Third application ought not be dismissed. In coming to my decision, I have taken into account all of Mr Prasad’s oral and written submissions.

[14] Having considered all of the matters put, I am satisfied that I should dismiss the Third Application under s.587 of the Act, because it has no reasonable prospects of success.

[15] This is Mr Prasad’s second attempt to litigate a matter which has already been determined by the Commission. It is clear that the Third Application raises the same issues that were raised and dealt with by the Second Application. There is no reason to expect a different result the second time round. Mr Prasad has been afforded an opportunity to make a case for why the Third Application should not be dismissed, particularly in circumstances where he had been provided with information on how to appeal the Decision. He has not been deprived of his right to have an application heard and determined, as this has already occurred.

[16] While I accept that Mr Prasad feels wronged and believes that the Second Application should have been successful, I consider it unreasonable to put the Respondent to the cost and time involved in dealing with the Third Application.

[17] Accordingly, the Third Application is dismissed. An order to this effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

R Prasad on his own behalf.

N Bobos for Boss Constructions (NSW) Pty Ltd.

Hearing details:

2019.

Sydney.

May .

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 1   [2019] FWCFB 1964