[2009] AIRC 682 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
COMMISSIONER HARRISON |
SYDNEY, 10 JULY 2009 |
Termination of Employment – jurisdiction – frivolous, vexatious or lacking in substance.
[1] On 19 May 2009, Mr Jaison Kalloor (the Applicant) lodged an application for relief in respect of his termination of employment by SGS Australia Pty Ltd (the Respondent), pursuant to s.643 of the Workplace Relations Act (the Act).
[2] The matter was set down for conciliation on 11 June 2009.
[3] On 3 June 2009 the Respondent lodged a notice of motion to dismiss the application on the grounds that it was frivolous, vexatious or lacking in substance, pursuant to section 646(1) of the Act. The Respondent also attached a statutory declaration in support of its motion.
[4] The conciliation conference was accordingly adjourned and I wrote to the parties inviting them to provide submissions by 26 June 2009.
[5] The relevant legislative provisions can be found at section 646 of the Workplace Relations Act 1996 (the Act) which states:
“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).”
[6] A brief background to this matter is that the Applicant alleges that he was coerced into signing a Deed of Settlement releasing the Respondent from any claims arising from his employment and termination. The Respondent denies the allegation and asserts that contrary to being placed under duress, the Applicant freely negotiated a resignation package.
[7] In considering the application for an order to dismiss I have carefully read the submissions filed on behalf of the Respondent and the Applicant. There are clear issues of major factual differences in this matter.
[8] Granting a motion to dismiss an application is a serious matter. Prima facie, the parties have a right to be heard and the merits of an application for relief should be fully tested against a submission that the application is “frivolous, vexatious or lacking in substance”.
[9] The meanings of the terms “frivolous” and “vexatious” are well known and referred to in Day v Victorian Railway Commissioners 1 where Dixon J stated that “a case must be very clear indeed” to justify summary dismissal and that “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process”.
[10] In the same judgement, Dixon J also cited the following passage from the judgement of O’Connor J in Burton v Shire of Bairnsdale 2
“Prima facie every litigant has a right to have matters of law as well as fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed”
In the circumstances of this matter, I am not satisfied that this is an application which can be determined “on the papers”. The factual differences referred to above and the degree of such requires the leading of evidence and the testing of that evidence. Accordingly the application will be listed for hearing in Sydney at 1.30pm, 31 July 2009.
BY THE COMMISSION:
COMMISSIONER
1 (1949) 78 CLR 62 at 91-92
2 (1908) 7 CLR 76 at 92
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