[2009] AIRC 107 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
COMMISSIONER WILLIAMS |
PERTH, 3 FEBRUARY 2009 |
Termination of employment – Frivolous, vexatious or lacking in substance.
[1] On 3 December 2008 Mr Perrella (the applicant) lodged an application for relief in respect of his termination of employment by ITW Australia Pty Ltd (the respondent). 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 and on the ground that his termination was unlawful being contrary to s.659. Whilst the box on the Form R27 regarding s.661 was not endorsed the body of the application includes the statement “In breach of minimum notice unlawful termination.”
[2] The respondent 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). The respondent 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 uphold the motion to dismiss sought by the respondent that the application was frivolous vexation or lacking in substance.
[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.
Relevant legislative provisions
[6] 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).”
[7] I note that the effect of s.646 is that even if the Commission is satisfied that the application is frivolous or vexatious or lacking in substance and so upholds the respondents motion to dismiss, the Commission is only empowered to dismiss the application to the extent that it is made on the ground referred to in paragraph 643(1)(a), that the termination was harsh unjust or unreasonable. Such an order has no effect on the other grounds that the applicant has based his application on that the application was allegedly unlawful being in some way contrary to s. 659 and apparently also that the termination allegedly involved a failure to give notice of termination and therefore was unlawful because it was contrary to s. 661.
Principles
[8] 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.
[9] The legal principles to be applied in determining the 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 1 and 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.”
[10] 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.
Background and the submission to the parties
[11] The applicant was employed as a service technician with the respondent for approximately two years and nine months.
[12] The respondent provided a letter of termination dated 12 November 2008 signed by Neil Donald, Branch Manager WA. The letter says the applicant’s employment has been terminated due to repeated and continuing ability not to meet the requirements of a service technician. The letter says the immediate trigger for the applicant’s dismissal was a customer complaint indicating that he did not supply the correct paperwork at the time of the job and another service report indicating an excessive amount of time fault finding on a recent job.
[13] The letter says that both of these items have been identified in the past and highlighted with the applicant in previous warning letters.
[14] The respondent, in its submission in response to the Commission’s invitation and in the original material provided with its Notice of Motion to Dismiss, provides copies of three written warnings including a final written warning given to the respondent in July 2007, March 2008 and October 2008. The respondent says that the performance issues detailed in the respective warning letters were discussed with the applicant on numerous occasions and are documented in these written warnings. The warnings firstly in July indicate that further problems may lead to additional warnings of possible dismissal and a similar statement is included in the second warning and the third and final written warning states that any further problems in these areas will lead to termination of employment.
[15] The respondent provided a significant amount of material in support of its submission that the applicant's performance was deficient including a detailed comparison of the applicant's performance benchmarked against other technicians.
[16] The respondent also provided a detailed breakdown of the final payments to the applicant which apparently included six weeks pay in lieu of notice.
[17] In reply the applicant says that the information provided by the respondent is completely false and misleading and unfair. The applicant makes a number of assertions in detail regarding a lack of support, denials about a number of the specific assertions made by the respondent, numerous explanations for the lateness of some jobs, assertions about personal relationships between some customers and the respondent’s managers, a lack of training and unequal treatment compared to other technicians. The applicant also asserts that the manager and himself had a personality clash and this was part of the reason for his termination.
[18] A large amount of written information was provided by both parties in support of their respective positions. Clearly there are fundamental disagreements between the parties on the facts of this matter.
Is the application is frivolous or vexatious or lacking in substance?
[19] It is the respondent who has made the motion to dismiss and so it is the respondent who must prove to the Commission that the applicant's case is so untenable that it cannot possibly succeed.
[20] The explanation provided by the respondent regarding its decision to terminate the applicant is disputed by the applicant. The parties do not agree about many of the issues leading up to the applicant’s termination. The Commission is not able to decide which of the two conflicting versions is correct based on the parties written submissions alone. To resolve the conflicting views the Commission would need to have all the relevant witnesses called to give evidence under oath and be subject to cross-examination and to then hear argument from both parties regarding that evidence.
[21] Consequently the Commission is not able, at this early stage in the process of the application, to decide with certainty that the applicant's case is so untenable that it cannot possibly succeed. The respondent has not discharged the onus upon it to satisfy the Commission that the application is frivolous or vexatious or lacking in substance such that it should be dismissed at this point without any further hearing.
[22] Having made this finding I observe that if the respondent can support its assertions with evidence then I would accept that the respondent did have a valid reason for the termination of the applicant’s employment and that the applicant’s employment was not terminated in a way that was harsh, unjust or unreasonable. There is also nothing that has been put forward to suggest that there has been a breach of s.659. With respect to s.661, if the respondent’s statements regarding the payment of six weeks wages in lieu of notice is correct then the applicant cannot succeed on this ground either.
[23] Alternatively if the respondent is not able to support its assertions with evidence but the applicant is able to support his assertions with evidence then the opposite outcome is likely and the applicant’s claims will probably be successful.
[24] Given my finding above that the application is not frivolous, vexatious or lacking in substance, I will now dismiss the respondent’s motion to dismiss the application and an order to that effect will issue in conjunction with this decision.
[25] The Commission will shortly contact the parties to list the matter for a conference to see whether this application can be settled through conciliation rather than the parties having to be involved in a formal hearing of the claims. To minimise costs to the parties either party may participate in such a conference by video link (where this is available from other capital cities) or by telephone if they wish.
BY THE COMMISSION:
COMMISSIONER
Final written submissions:
21 January 2009.
2 (1964) 112 CLR 125
3 at p.129
4 (1940) 78 CLR 62
5 at p.91
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