[2009] AIRC 682

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

Mr Jaison Kalloor
SGS Australia Pty Ltd


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:

[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

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.



 1   (1949) 78 CLR 62 at 91-92

 2   (1908) 7 CLR 76 at 92

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