PR974807
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.643 - Appl’n for relief re (Unlawful and HUU) termination of employment

Mr Allan Thomas West

and

Hi-Trans Express t/as NSW Logistics Pty Ltd
(U2006/5544)

SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 4 DECEMBER 2006

Motion to dismiss application (HUU) as frivolous, vexatious or lacking in substance.

DECISION

[1] Mr Allan Thomas West (the applicant) lodged an application for relief in respect of the termination of his employment by Hi-Trans Express t/as NSW Logistics Pty Ltd (the employer), pursuant to s.643 of the Workplace Relations Act (the Act). The application was on the grounds that the termination was harsh, unjust and unreasonable, and that the employer failed to give notice of termination.

[2] The applicant was employed as a forklift driver.

[3] On 15 September 2006 the employer 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 of the Act.

[4] Section 646 of the Workplace Relations Act 1996 (the Act) 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).”

[5] The Commission wrote to both the applicant and the employer requesting that they provide any materials they wished to rely upon in relation to the application to dismiss the matter, both to the Commission and to each other. The employer was requested to reply by 29 September 2006, the applicant by 6 October 2006. The applicant failed to respond to this request. Four telephone messages were left for the applicant requesting him to contact my office. He failed to do so. However Mr West did include a statement in relation to his dismissal with his application. The employer responded to the request with its reasons for terminating the applicant, together with photos showing the accident and a CD with a video of the accident.

Background

[6] The applicant was employed from 17 January 2006 to 8 August 2006. The employer terminated his employment for gross misconduct and negligence in relation to a work place accident, involving the applicant that occurred on 2 August 2006..

[7] On 2 August 2006 Mr West was unloading trucks with a forklift at the worksite. At approximately 7.45 am Mr West drove the forklift straight into a building support column.

[8] Mr West does not deny that this occurred. In a statement he made on the day of the accident he says “I was driving towards the middle roller door heading outside but was watching Jim to see if he was stopping for another smoke break, it was at this stage that I hit the building support Column.”

[9] Mr West was taken to the Symbion Medical Centre in Wetherill Park for treatment after the accident by Mr Manuel Defina, the State Manager of Hi-Trans. Mr West’s injuries resulted in a medical certificate being issued by the treating doctor stating that Mr West was unfit for pre-injury duties from 3 August 2006 to 7 August 2006. Another certificate was issued on 7 August 2006 clearing Mr West as fit to work on pre-injury duties from that date.

[10] In light of the accident, the employer reviewed the statement made by Mr West, photographic and video evidence of the accident, the company history of accidents and the warnings given to employees on workplace safety. On 8 August 2006 the applicant and Mr Defina and Mr Mark Sullivan (Operations Manager for the employer) met to discuss his employment. The employee was given an opportunity by the employer to view the evidence and to offer an explanation of his conduct.

[11] The employer terminated Mr West’s employment at that meeting for gross misconduct due to “unsafe workplace practice which could have led to serious injury or death to himself or other persons under our employment”.

Decision

[12] 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”.

[13] 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.”

[14] In the circumstances of this matter, particularly having regard to the allegations of the employer and the admissions of the applicant, there is no real question to be determined in any prospective proceedings before the Commission. In other words, the application is so “obviously untenable that it cannot possibly succeed”.

[15] I accept the employer’s submission that the original application for relief is frivolous and vexatious and lacks substance. There is no contest about the facts of the accident which led to the termination of employment. It is quite clear from a viewing of the video evidence that the accident was very dangerous. Moreover, the applicant concedes the accident was due to his own negligence. I am satisfied the application is not arguable in fact or law. The application, in so far as it relates to whether the termination was harsh, unjust or unreasonable, as frivolous, vexatious or lacking in substance is dismissed in accordance with s.646 of the Act.

[16] Orders giving effect to this decision are attached as PR974841.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

 1   (1949) 78 CLR 62 at 91-92

 2   (1908) 7 CLR 76 at 92

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