FWA 3389
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Antony Dekort
Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern
DEPUTY PRESIDENT HARRISON
NEWCASTLE, 28 APRIL 2010
Termination of employment - Section 399- Hearing not appropriate - Application dismissed pursuant to Section 587(1)(c)- no reasonable prospects of success .
 Mr Anthony Dekort was employed as a full time bar attendant at the Johns River Tavern from January 2008 to the conclusion of that employment in January 2010.
 Mr Dekort filed an application for relief from unfair dismissal on 18 January 2010.
 Attempts at conciliation were unsuccessful and the matter moved to arbitration.
 The employer’s response discloses a reason for termination of employment as a misrepresentation by Mr Dekort that he was unfit for duty on 30 and 31 December 2009 and a claim for payment of sick leave.
 Mr Dekort supported his application for sick leave with a certificate issued by Dr David Geytenbeek of the Warnervale GP Super Clinic dated 4 January 2010.
 The employer refutes the assertion of genuine illness and provides in his statement a photograph from a Facebook page showing Mr Dekort participating in New Years Eve celebrations on 31 December 2009.
 Directions issued requiring Mr Dekort to file and serve material to be relied upon in pursuit of his application by 26 March 2010. Mr Dekort confirmed that he had received the employer’s response.
 A statement is provided by Mr Dekort’s mother describing a meeting with Mr Galati, the respondent employer, on 6 January 2010, resulting in payment of four weeks annual leave to Mr Dekort and a request for a separation certificate which was promised but not received.
 Mrs Dekort states that she travelled to Johns River with her daughter for the meeting with Mr Galati as Mr Dekort had been advised by his doctor to avoid stressful situations. This medical advice is supported by a report from Adam Wiseman Psychologist and a Patient Assessment Report.
 Mr Dekort’s statement does not address the inconsistency of asserting to be unfit for work on 30 and 31 December 2009, appearance at a New Years Eve party, and the medical certificate issued on 4 January 2010.
 In the absence of any explanation I am compelled to a conclusion adverse to Mr Dekort.
 These circumstances require consideration pursuant to s 587 of the Fair Work Act (FW Act) which is conveniently discussed by Deputy President McCarthy in his Decision of 4 March 2010 in Applicant v Respondent  FWA 1765 PR994572.
 McCarthy DP said:
 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.
 Section 399 of the FW Act states:
(1) FWA must not hold a hearing in relation to a matter arising under this Part unless FWA considers it appropriate to do so, taking into account:
(a) the views of the parties to the matter; and
(b) whether a hearing would be the most effective and efficient way to resolve the matter.
(2) If FWA holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.
(3) FWA may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.
 Having considered the substantive material filed, in particular the failure of Mr Dekort to address the reasons for termination of his employment put forward by the employer, the desirability of Mr Dekort avoiding stressful situations, the lack of reasonable prospect of success, and the costs to the parties, I form the view in accordance with section 399 that a hearing is not the most efficient manner in which to determine this matter. .
 The applicant has failed in the face of clear evidence from the respondent to put any case to meet the assertion of misleading conduct, to explain the inconsistency of his actions, or to refute the evidence of the respondent.
 I dismiss the application pursuant to section 587(1)(c) of the FW Act as one which has no reasonable prospect of success.
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 
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