FWA 1765
Download Word Document
The attached document replaces the document previously issued with the above code on 4 March 2010.
The Respondent’s name has been removed throughout the decision.
Acting Associate to Deputy President McCarthy
Dated 5 March 2010.
| FWA 1765|
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
DEPUTY PRESIDENT MCCARTHY
PERTH, 4 MARCH 2010
Termination of employment – Whether frivolous and vexatious – Whether no reasonable prospect of success.
 The Applicant is a male who was employed as a Senior Building Surveyor in a local government authority. He had been employed in that position since 2004. His employment was terminated in August 2009. The reasons for the termination included conduct of the Applicant which the Respondent claimed had occurred and amounted to sexual harassment of other employees. The Respondent also asserts that the Applicant victimised an employee following complaints made by that employee about the Applicant’s conduct.
 The Applicant is claiming relief in respect of termination of employment under section 394 of the Fair Work Act 2009 (Cth) (the FW Act) on the grounds that the termination of his employment was harsh, unjust or unreasonable. The Respondent objected to the Applicant’s application on the basis that the application (i) is frivolous or vexatious; or (ii) has no reasonable prospect of success. As a consequence of the Respondent’s motion I decided to deal with that motion by way of a hearing. On 21 October I issued Directions that the parties provide outlines of submissions, witness statements and any other documentary material that was intended to be relied upon. I also, on 5 November, issued an Order with the effect of making the hearing confidential and restricting the evidence to 3 witnesses.
 The directions issued required the parties to lodge and serve an outline of their argument and the provision of any witness statements they sought to rely on. I then conducted a hearing, having taken into account the views of the parties and deciding that it would be the most efficient and effective way of dealing with the matter. Evidence was led at that hearing. Essentially the hearing truncated the usual procedure that would be followed by limiting the evidence to that which was required to determine the s.587 application. The effect of this was that the Applicant gave evidence but the witnesses he wished to call in support of his application were not called.
 Fair Work Australia (FWA) has the power to dismiss an application under section 587, where it is provided that:
(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
 The Respondent submitted that the legal principles of ‘frivolous and vexatious’ causes of action are well established. They submitted that frivolous proceedings are vexatious in the sense that they put the defendant to the trouble of having to defend proceedings that are useless or futile 1, are so obviously untenable that it cannot possibly succeed2, or the alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide3.
 In cases in the Australian Industrial Relations Commission (AIRC), matters where there has been consideration as to whether to dismiss an application on the basis that there is no reasonable prospect of success have generally followed Wright v Australian Customs Services 4 (“Wright”). There it was decided that for a matter to have no reasonable prospect of success it must be manifestly untenable and groundless.
 There are a number of differences in the current legislation and developments since Wright was decided.
 The scheme of the FW Act for dealing with unfair dismissal disputes is substantially different to the Workplace Relations Act 1996 (the WR Act). The WR Act included a process where a matter would be conciliated (s.650), a certificate issue arising from that conciliation [(s.650(2)(3)(4) of WR Act] and an election by the applicant to proceed to arbitration (s.651 of WR Act). There are no equivalent series of steps in the FW Act. Further the FW Act requires FWA not to hold a hearing unless it would be the most effective and efficient way to resolve the matter (s.399 of FW Act).
 It can also be readily seen that the FW Act sees a distinction between a frivolous and vexatious application and an application that has no reasonable prospect of success. Otherwise there would be no purpose in providing the separate and distinct grounds for dismissing an application in s.587(1) of the FW Act.
 The distinction between a frivolous and vexatious application and an application that has no reasonable prospect of success is illustrated by examination of the application of s.31A of the Federal Court Act (FC Act). That provision is of a similar nature to that in s.587(1)(c) of the FW Act. Section 31A of the FC Act provides that any party to an action may obtain summary judgment by showing that the other party has “no reasonable prospect of successfully prosecuting or defending the whole proceeding or any part of the proceeding”.
 The effect of s.31A of the Federal Court Act was canvassed in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 5, where Lindgren J said:
Under s 31A I must be satisfied that the Applicants have no reasonable prospect of success, but as s 31A(3) makes clear, this does not mean that I must be satisfied that the proceeding is hopeless or bound to fail. I suggest that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130: see Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd  FCA 753 at .
 I consider that there are three separate tests with different types of considerations and approaches needed by the provisions of s.587 of the FW Act.
 Section 587(1)(a) provides for a matter to be dismissed if the application has not been made in accordance with the FW Act. That is not a matter in contention here as to how it should be applied.
 Section 587(1)(b) provides for matters that may be dismissed where the application is frivolous or vexatious. It is here that in my view the approach to be applied involves dismissing matters where the application is “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”. 6
 Section 587(1)(c) of the FW Act provides for a matter to be dismissed if the application has no reasonable prospects of success. The principles applied by the Federal Court for s.31A of the FC Act were summarised by Foster J in Wang v Anying Group Pty Ltd 7 (“Wang”) and again in Davis v Insolvency and Trustee Service Australia (No 3)8 as follows (references deleted):
(a) The moving party does not have to demonstrate that the defence is hopeless or unarguable;
(b) The Court must consider the pleadings and the evidence with a “critical eye” in order to see whether the Respondent party has evidence of sufficient quality and weight to be able to succeed at trial;
(c) The Respondent party is not obliged to present its whole case in order to defeat the summary judgment but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b)); and
(d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others. In my judgment, the words of s 31A(1) compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial.
 In my view the approach for s.587(1)(c) of the FW Act should be similar to the approach that the Federal Court has taken in applying s.31A of the FC Act as outlined by Foster J in Wang.
 The Respondent submitted that:
1) The Applicant has admitted, during an investigation into his conduct and behaviour, to inappropriate workplace behaviour in breach of the Respondent’s Code of Conduct and Equal Opportunity in the Workplace Policy
2) The Applicant has also admitted to breaching his confidentiality obligations during the course of the investigation:
a) despite having been repeatedly told his obligations regarding confidentiality; and
b) despite his previous warnings for breaching confidentiality in relation to a separate incident.
3) Both the inappropriate workplace behaviour and the breach of confidentiality were considered by the Respondent to be serious breaches of the Respondent’s Code of Conduct and Equal Opportunity in the Workplace Policy.
4) A serious breach of the Respondent’s Code of Conduct and Equal Opportunity in the Workplace Policy is a valid reason for termination of the Applicant’s employment. The Respondent says that the Applicant was notified of that reason, that he was given opportunity to respond to the conduct complained of, and that he was warned about the behavior and conduct.
 The Applicant submitted that:
1) He has been denied natural justice and procedural fairness by the Respondent in both the investigation and the decision making process in relation to allegations against him.
2) The investigation and report by Sally Jetson and Associates is flawed in many aspects, as illustrated:
a) Does not identify what Respondent policies have been breached by the Applicant, and secondly how he has not followed the Code of Conduct relating to Employees.
b) There has not been any demonstration how each of the allegations made against the Applicant constitute either sexual harassment or victimization.
c) The Respondent’s staff who were present at alleged incidents, including the witnesses specifically nominated by the Applicant were not interviewed during the investigation.
d) The Applicant’s interview with the Investigator was of a short duration only, of a general nature, and each allegation was not specifically raised with him.
e) The Investigator’s Report has been presented in a manner which indicates guilt on the part of the Applicant, but has not proven any allegation beyond a reasonable doubt, particularly where there are conflicting statements by those people interviewed.
f) The Investigator has given credibility to the people who have made allegations, but has completely ignored and disbelieved those people who did not collaborate the allegations.
3) The Applicant also submits that actions taken by the Respondent in both the investigation and decision making processes was unfair in that:
a) The Respondent did not review the Investigator’s Report thoroughly in comparison with the Applicant’s response to the allegations, and identify the numerous deficiencies in the Investigation process and conclusions.
b) The Applicant was under constant reminders by the Respondent’s HR Manager during the investigation and decision making processes of the potential for the termination of his employment. The Applicant has the distinct impression that he was being pressured to resign or that he would ultimately be dismissed.
c) Despite a number of requests, the Respondent did not supply the Applicant with copies of the written allegations made against him, nor of copies of any related statements or any correspondence from those people who had raised complaints against him.
d) The Respondent imposed unreasonable timeframes and deadlines in seeking both the Applicant’s response to the allegations and the Report.
e) The Respondent acted with undue haste in the consideration of the Report and the time taken from the receipt of the Applicants response and the decision to terminate employment.
 Evidence was given by Ms Sally Jetson of Sally Jetson and Associates (SJA) regarding the inquiry she undertook on behalf of the Respondent and the findings from that enquiry. The Applicant gave evidence and directed a substantial portion of that evidence to the manner and fairness of the enquiry. It is this that formed the major portion of the Applicant’s case.
 Ms Jetson explained that she had been employed by SJA for approximately 18 years, in her current position. Her role currently and during that period was being responsible for management organisational consultancy, providing expertise in the form of training, coaching, consultancy, mediation and investigation services to organisations in the management of work performance and workplace behaviour. This, she stated, included the prevention of harassment, discrimination and workplace bullying, through the training of contact and grievance officers, mediators and workplace investigators. She has provided inquiry/investigation services to organisations throughout the private and public sector, completing approximately 150 investigations. The Company is the preferred provider for training of human resources teams and managers in workplace conduct, employment equal opportunity/conduct, grievance mediation and investigation for large companies and organisations.
 In June 2009 she was engaged by the Respondent to conduct an investigation into several allegations against the Applicant. On 7 August a report on the findings from that investigation was provided to the Respondent. The investigation took about 100 hours. That report provides a detailed history outline of how the investigation was conducted. The investigation was obviously very thorough. In the week of 22 June, 10 persons were interviewed including the Applicant. On 3 July the specific allegations were provided to the Applicant in writing. Allegations of a specific nature had also been provided to the Applicant by letter on 6 July. The allegations provided there included specifics such as who had made allegations and what those allegations were. The Applicant provided a written response to the allegations on 13 July. A further 9 interviews, including one with the Applicant were then conducted.
 There were fourteen allegations against the Applicant, ten of which related to sexual harassment and four related to victimization of an employee. The report found that twelve of the fourteen allegations were substantiated. The report also found that in addition the Applicant had breached confidentiality during the investigation process contrary to a general direction given to staff by the Acting CEO regarding the investigation.
 The Applicant says that his initial interview was with a consultant with SJA (not Ms Jetson). He says although the interview took about 30 minutes there were no specific allegations were discussed. He says that the specific allegations were provided to him in writing on 6 July and he was requested to respond by 10 July. The Applicant requested extra time to respond which was acceded to with the time being extended to 13 July. The Applicant says he provided a response in 13 July. The Applicant also sought copies of written allegations against him which was refused.
 The Applicant claims this denied him having sufficient information to be able to adequately respond. On 24 July the Applicant attended a meeting with Ms Jetson. He says the meeting lasted about 45 minutes. He claims that Ms Jetson was not interested in hearing his version of events. On 14 August the Applicant was given a letter from the Respondent detailing the findings of the SJA report and requested to respond to those findings. The Applicant responded on 19 August and his employment was terminated later that day. The Applicant asserts that allegations against him were concocted, that those that made the allegations collaborated, that he did not admit to any inappropriate behaviour, that he did not admit to vicitimisation of any employee, and he did not admit to sexual harassment of any employee.
 Much of the complaint and evidence of the Applicant was directed at endeavouring to discredit the SJA Report and the procedure followed by the Respondent. I find these criticisms to be unjustified.
 For example, the Applicant asserts that he did not have the opportunity to know exactly what was being alleged. Yet a document had been provided to him on 6 July by the Respondent outlining the specifics of the allegations. An earlier similar document had been provided to him on 3 July by SJA. To suggest that he was insufficiently aware of what he was being accused of to be able to properly respond I consider is disingenuous. I consider that the investigation and report of SJA was thorough, fair and balanced. I accept the evidence of Ms Jetson and prefer it to that of the Applicant. I consider her to have been professional and fair in the conduct of the investigation.
 I found the Applicant to be unconvincing in his complaints about the process and importantly unconvincing about his denial of or response to allegations about his conduct and behaviors with other employees.
 I also consider that the Applicant had ample opportunity to respond to the allegations against him both in person and in writing.
 There were fourteen allegations made against the Applicant. Many of the allegations related to unwanted sexual innuendos in conversations, some related to behaviors that had sexual connotations and some were the uninvited recounting to other employees of personal sexual experiences and behaviors. These types of alleged behaviors were claimed to constitute sexual harassment as they were said to have been uninvited, unwanted and some employees found it offensive. Other allegations related to the treatment the Applicant is said to have given an employee and indiscrete comments and behaviors relating to that employee’s performance and attendance record.
 Having found that the allegations were put to the Applicant, that he had the opportunity to respond to them any further proceedings would primarily be for the purpose of hearing evidence and making findings as to (i) whether the conduct occurred, (ii) if it did whether there was a valid reason for the termination of the Applicants employment and (iii) whether the termination was harsh, unjust or unreasonable.
 The Applicant asserts that he could bring evidence to verify his account of various incidents. Ms Jetson says that she interviewed some of those persons and they indicated to her that they could not recall the incidents in question or did not corroborate the Applicant’s version.
 The most crucial evidence the Applicant will be able to bring is his own evidence. I have had the benefit of hearing evidence of the Applicant. I found his account of events and incidents to be very unconvincing.
 I am satisfied from the submissions and evidence of the Applicant that he does not have evidence of sufficient quality and weight to be able to succeed in his application. The Applicant appeared to me to have little if any understanding of what a reasonable person would regard as harassment. Even on the Applicants own version, some of the incidents I consider are in the category of sexual harassment. Furthermore I consider the evidence that the Respondent has already brought to be strong and compelling.
 I therefore dismiss the application as I find that it has no reasonable prospects of success.
I Johnstone for the Applicant.
K Reid for the Respondent.
December 10 and 22.
1 Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 84
2 Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92
3 Norman v Matthews (1916) 85 LJKB 857 at 859 per Lush J
5 160 FCR 298 at 310
6 Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 84
7  FCA 1500 at 
8  FCA 69 at 
Printed by authority of the Commonwealth Government Printer
<Price code C, PR994572>