[2009] AIRC 107

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Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Mr Antonio Perrella
ITW Australia Pty Ltd T/A Hobart Food Equipment Service and Sales



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.

[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.


[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:

[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.



Final written submissions:

21 January 2009.

 1   PR972004, 7 July 2006.

 2   (1964) 112 CLR 125

 3   at p.129

 4   (1940) 78 CLR 62

 5   at p.91

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