Dismissing an application

See Fair Work Act 2009 s.399A and s.587

An application for an unfair dismissal remedy can be dismissed by the Fair Work Commission for a number of reasons.

The Commission can dismiss an application under s.587(1) on its own motion or upon application.[1]

The Commission can dismiss an application on the following grounds:

• the application is not made in accordance with the Fair Work Act
• the application is frivolous or vexatious, or
• the application has no reasonable prospects of success.[2]

Generally, the Commission will not dismiss an application if there is a real question to be answered on the facts or the law.[3]

The power of the Commission to dismiss an application should be used sparingly and approached with caution.[4]

If an employee enters into a binding settlement agreement their application may be dismissed.[5] This is because the cause of action forming the basis of the application no longer exists after settlement is reached.[6]

If a party fails to prosecute their case their application may be dismissed.

Example

If an applicant refuses to respond to directions or attend a conference or hearing in relation to a case that they have started, the Commission can dismiss the case.

Frivolous or vexatious

An application will be considered frivolous or vexatious where the application:

• is so obviously untenable that it cannot possibly succeed
• is manifestly groundless
• is so manifestly faulty that it does not admit of argument
• discloses a case which the Commission is satisfied cannot succeed, or
• does not disclose a cause of action.[7]

No reasonable prospect of success

Generally, for an application to have no reasonable prospect of success, it must be manifestly untenable and groundless.[8]

The party raising the objection does not need to prove that the other party's case is hopeless or unarguable.

The Commission must use a critical eye to see whether the evidence of the party responding to the objection has sufficient quality or weight to succeed.

The party responding to the objection does not need to present their entire case, but must present a sufficient outline to enable the Commission to reach a preliminary view on the merits of their case.

The real question is not whether there is any issue that could arguably be heard, but whether there is any issue that should be permitted to be heard.[9]

An application can be dismissed on the basis that it has no reasonable prospects of success after the Commission has heard the applicant's case but before the respondent has started to present its case. However, if a respondent applies at that point for the applicant's case to be dismissed, it may be required to elect not to call any evidence.[10]

When an employee seeks to pursue an application:

• after an executed settlement agreement has been reached between the parties, and
• the settlement has been paid;

the application can be dismissed for being frivolous or vexatious or for having no reasonable prospect of success.[11]

When is a binding agreement made?

A key issue is whether the parties intended to be bound by a verbal agreement or whether the parties intended for the agreement to be put into writing and signed.[12]

The question of whether there is a binding agreement or not depends upon the intention disclosed by the language the parties have used.[13]

The parties may agree that a negotiated agreement will only be binding once it is seen in its final written form and signed, whether this was the parties intention will depend on the true construction of the evidence.[14]

A binding settlement agreement can still be found to exist even if some aspects of the agreement were not finalised at the time.[15]

The general principles for dismissing applications due to a defaulting party's failure to attend proceedings, may be summarised as follows:

• the defaulting party must be given an opportunity to explain the reasons why the Commission should not dismiss his/her claim for a failure to attend the proceedings
• the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties
• the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Commission
• the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed, and
• the Commission should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing.[16]

See Fair Work Act s.399A

Section 399A of the Fair Work Act provides that the Commission may, on application by the employer, dismiss an application where the applicant has unreasonably:

• failed to attend a conference or hearing at the Commission
• failed to comply with a direction or order of the Commission, or
• failed to discontinue the application after a settlement agreement has been reached.[17]

Application dismissed

Frivolous or vexatious

West v Hi-Trans Express t/as NSW Logistics Pty Ltd, PR974807 (AIRC, Hamberger SDP, 4 December 2006).

An application by an employee who admitted to negligently driving a forklift into a building support column was dismissed as being frivolous, vexatious or lacking in substance.

Frivolous or vexatious – no real question to be determined

 Taminiau and Thomson v Austin Group Limited, PR974223 (AIRC, Harrison C, 5 October 2006).

The employees were dismissed for using their employer's trademarks for an improper purpose. It was found that the employees actions in using the employer's trademarks for improper potential gain was a clear breach of good faith, fiduciary duty and was an indication of a conflict of interest which could not have any place in a direct employment relationship. The applications were not arguable in fact or law. The applications were dismissed as being frivolous and vexatious.

No reasonable prospect of success

 Applicant v Respondent [2010] FWA 1765 (McCarthy SDP, 4 March 2010).

An application by an employee dismissed for sexual harassment and victimisation of other employees was found to have no evidence of sufficient quality or weight to be able to succeed.

No reasonable prospects of success – failure to refute evidence

Dekort v Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern [2010] FWA 3389 (Harrison DP, 28 April 2010).

An employee was dismissed for taking sick leave on New Year's Eve. The employee supported his application for sick leave with a medical certificate. The employer refuted the assertion of genuine illness and provided a photograph from a Facebook page showing the employee participating in New Year's Eve celebrations.

It was found that the employee had failed to put any case to meet the assertion of misleading conduct, to explain the inconsistency of his actions, or to refute the evidence of the employer. The application was dismissed as one which had no reasonable prospect of success.

Binding settlement agreement – verbal agreement – deed drafted – not signed

Curtis v Darwin City Council (2012) 224 IR 174.

The employee's employment was terminated due to her inability to meet the inherent requirements of her role. A draft deed of settlement based on an oral agreement between the parties was prepared but never executed by the parties. The employee sought to have the matter arbitrated.

The Full Bench confirmed on appeal that there was a binding settlement agreement. There was nothing to suggest that what was agreed to was not intended to be a contract, rather than simply a basis for a future contract. Permission to appeal was refused and the appeal dismissed.

Binding settlement agreement – verbal agreement – deed drafted – not signed

Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1.

A draft deed of settlement based on the verbal agreement between the parties was prepared by the employer's representative. The employee contended there was no completed agreement as the mutual release provision included in the draft deed was not discussed (let alone agreed upon) and, secondly, that any agreement which had been made was conditional on written terms being agreed.

The Full Bench confirmed on appeal that, even though the draft deed included mutual release terms beyond those the employee discussed or agreed to, there was still a binding settlement agreement. Permission to appeal was refused and the appeal dismissed.

Failure to prosecute

Morton v Peregrine Corporation Pty Ltd T/A On the Run [2011] FWA 4812 (Bartel DP, 22 July 2011).

The employee in this matter failed to attend a jurisdictional hearing, failed to comply with directions of the Commission and was unable to be contacted.

As the Commission did not have the details it needed to determine the merits of the case for the employee there could be no finding that the matter was frivolous or vexatious. It was found that the failure to provide evidence in support of the application could give rise to a finding of 'no reasonable prospect of success'.

Failure to comply with directions [s.399A]

Aragon v Aegis Safety Pty Ltd T/A Techinspect [2013] FWC 5993 (Spencer C, 30 August 2013).

The applicant failed to comply with directions issued on three separate occasions to file material in relation to his application and jurisdictional objections. The applicant was offered a further opportunity to provide submissions or reasons for his failure to comply. While the Commission acknowledged the hardships expressed by the applicant, they were not considered exceptional. Most applicants appearing before the Commission in termination matters have financial difficulties and are not trained lawyers or have industrial relations expertise.

Failure to attend non-compliance hearing [s.399A]

Young v Balustrade Installations Pty Ltd [2013] FWC 4032 (Gooley DP, 24 June 2013).

The applicant failed to comply with directions to file material and subsequently failed to attend a non-compliance hearing. He was given a further opportunity to explain his absence but did not respond.

Failure to discontinue application after settlement agreement concluded [s.399A]

Milochis v Detmold Packaging Pty Ltd [2013] FWC 3647 (O'Callaghan SDP, 6 June 2013).

An agreed position was reached at a telephone conference. The applicant did not complete and return the Deed of Settlement or lodge a Notice of Discontinuance despite material being sent to him on two separate occasions. The applicant failed to attend a further telephone conference or submit a Notice of Discontinuance following further requests for him to do so.

Failure to prosecute

Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699 (Richards SDP, 14 July 2015).

The employee in this matter failed to comply with directions of the Commission and was unable to be contacted. The application was dismissed because the applicant failed to prosecute her claim despite being afforded an opportunity to do so. The Commission was also satisfied that the materials provided by the employer indicated that the employer had a defence to the claim.

Application NOT dismissed

Dispute over deed of release – facts in dispute

Kalloor v SGS Australia Pty Ltd [2009] AIRC 682 (Harrison C, 10 July 2009).

The employee alleged he was coerced into signing a Deed of Settlement releasing the employer from any claims arising from his employment and dismissal. The employer denied the allegation and asserted that contrary to being placed under duress, the employee freely negotiated a resignation package.

It was found that there were major factual differences in the case and that evidence needed to be properly given and tested. The application was not dismissed and was listed for hearing.

Facts in dispute

Perrella v ITW Australia Pty Ltd T/A Hobart Food Equipment Service and Sales [2009] AIRC 107 (Williams C, 3 February 2009).

The employee was dismissed for poor performance. There were fundamental disagreements between the parties on the facts of the matter.

The Commissioner was not able to decide which of the two conflicting versions was correct based on the parties written submissions alone. The Commissioner was not satisfied that the application was frivolous, vexatious or lacking in substance such that it should be dismissed without any further hearing.

Employee negotiated terms of his termination – no release from further legal action was discussed

Turton v FMC Australasia Pty Ltd [2011] FWA 8903 (Hampton C, 22 December 2011).

An employee negotiated and agreed to the terms upon which he was to leave the business of the employer. However, in reality his only choice was to resign (as part of the agreed package) or be dismissed.

It was found that the agreement did not change the legal character of the dismissal. The application was not dismissed and the case proceeded to conciliation.

Applicant's explanations accepted [s.399A]

Cross v National Australia Bank T/A NAB [2013] FWC 3352 (Wilson C, 28 May 2013).

The applicant failed to comply with directions to file material and was unable to attend a non-compliance hearing. The applicant wrote to the Commission explaining that she was under financial pressure, seeking representation and was not aware that she was required to attend the non-compliance hearing. The applicant's reasons were accepted by the Commission.