[2020] FWC 1154
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Lee Palmer
v
Rich Glen Pty Ltd
(U2019/13608)

DEPUTY PRESIDENT MASSON

MELBOURNE, 3 MARCH 2020

Application for an unfair dismissal remedy - application to dismiss pursuant to s. 587 – application not granted.

Introduction and background

[1] On 5 December 2019, Mr Lee Palmer (Mr Palmer) lodged an application with the Commission pursuant to s. 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by Rich Glen Pty Ltd (Rich Glen) on 15 November 2019.

[2] The matter was listed for hearing on 11 & 12 March 2020 and directions were issued that required Mr Palmer to file any submissions, witness statements and other documentary material on which he intended to rely by no later than midday on Monday 3 February 2020. The directions were not complied with by Mr Palmer and the matter was listed for a non-compliance hearing before the Acting Unfair Dismissal National Practice Lead, Deputy President Mansini on 7 February 2020.

[3] Arising from the non-compliance hearing conducted on 7 February 2020, revised directions were issued that required Mr Palmer to file his submissions, witness statements and other documentary material by no later than midday on Tuesday 11 February 2020.

[4] Subsequent to the revised directions being issued, Mr Palmer filed some handwritten notes on 7 February 2020 that were not in the form required by the Commission. The Commission then provided Mr Palmer with the relevant template guides on 7 February 2020 and directed him to file his submissions, witness statements and other documentary material no later than 5.00pm on Tuesday 11 February 2020. Mr Palmer failed to file his material as directed.

[5] On 12 February 2020 Mr Palmer wrote to the Commission seeking a further extension of time to re-submit his handwritten material previously provided. That request was subsequently considered by Deputy President Mansini and declined. A further request for an extension of time within which to file his material was then made by Mr Palmer on 18 February 2020, such request being referred to myself following the allocation of the file to my Chambers on 20 February 2020.

[6] Consistent with the direction issued by the Commission, Rich Glen filed its submissions, witness statements and other documentary material on which it intended to rely on 18 February 2020.

[7] Rich Glen then filed a Form F1 seeking that the Mr Palmer’s unfair dismissal application be dismissed pursuant to s. 587 of the Act. The matter was then called on for mention and directions on 27 February 2020 to deal with Rich Glen’s s. 587 application. At the mention and directions hearing, Mr Palmer was represented by Mr John Taylor of Taylor and Whitty solicitors and Rich Glen was represented by Mr Michael Coldham of Michael R Coldham and Associates, both representatives being granted permission to appear pursuant to s. 596 of the Act.

[8] At the conclusion of the mention and directions hearing on 27 February 2020, Mr Palmer was directed to file any submissions and materials in response to Rich Glen’s s. 587 application on or by the close of business on Monday 2 March 2020. I advised the parties that I intended to deal with the application on the papers although liberty to apply to be heard remained available. Mr Palmer subsequently filed submissions and material in respect of the s. 587 application of Rich Glen.

[9] I now turn to deal with Rich Glen’s s. 587 application.

Respondent’s submissions

[10] Rich Glen sought to rely on its outline of submissions and witness evidence filed on 18 February 2020 in support of its s. 587 application. Rich Glen’s case may be shortly stated as follows.

[11] While employed by a different entity on the same property since 2011, Mr Palmer commenced employment on a casual basis with Rich Glen on 16 July 2014 when it took over the current business. Mr Palmer remained so employed up until his dismissal on 15 November 2019.

[12] Following a management review conducted in early 2019 a new employee handbook was produced and provided to employees, including Mr Palmer, on 25 June 2019. The contents of the new employee handbook were outlined and explained to employees in staff meetings held on 26 June and 3 September 2019. The explanation included reinforcement of the fact that stealing would result in termination of employment.

[13] After initially becoming aware on 11 November 2019 that Mr Palmer had some old Rich Glen olive oil tins in the back of his utility, concern of Rich Glen’s management Glen was aroused on 14 November 2019 that Mr Palmer had filled up those tins with oil product of Rich Glen without approval or authority. Mr Palmer was confronted by management of Rich Glen at 6.30am on 15 November 2020 and admitted to having filled up the tins with oil and taken them home to his mum and dad. Mr Palmer was asked if he had permission to remove the oil to which he responded that he did not have such permission. Mr Palmer was then dismissed for theft and left the farm shortly after.

[14] Rich Glen submits that the facts are undisputed, and that Mr Palmer was well aware that he had stolen the oil and had in fact stolen on more than one occasion. The application according to Rich Glen was frivolous, vexatious, has no reasonable prospects of success and should be dismissed.

Applicant’s submissions

[15] Mr Palmer submits in reply that he was unaware that he was not allowed to take the oil for his own use and had done so on previous occasions. He further states that Mr Matthew Pepperell, who is employed by Rich Glen as the Manager, was aware from a conversation they had on 10 November 2019 that Mr Palmer was intending to fill the tins with some oil for his personal use.

[16] Mr Palmer further submits that he had worked for the company for over 9 years, that staff had been given oil by Rich Glen in the past and that the oil he had filled the tins with was oil left in the filling hose which if not drained would have led to the hose perishing. He also disagrees with a number of factual elements contained in Rich Glen’s material and claims that he was not aware his actions would be seen as stealing.

Statutory provision

[17] Section 587 of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Consideration

[18] The power to summarily dismiss an application pursuant to s. 587 was considered by Deputy President Gostencnik in Rosa Resta v Myer Ltd 1 when he said as follows;

[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, ‘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’.

[40] His Honour continued:

‘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. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91):

“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. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But 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.”

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 (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.’  (footnotes omitted)

[19] Further, section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Without traversing the authorities that have considered the proper application and meaning of the phrase, ‘no reasonable prospect of success’, it is sufficient to make the following observations.

[20] A conclusion that an application has no reasonable prospect of success should only be reached with extreme caution and in circumstances, for example, where an application is manifestly untenable or is groundless or is so lacking in merit or substance as to be not reasonably arguable. These examples do not provide an exhaustive description of the circumstances when an application has no reasonable prospect of success.

[21] In Spencer v The Commonwealth of Australia (Spencer), 2 consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s 31A of the Federal Court of Australia Act 1976. In that case the majority (Hayne, Crennan, Kiefel and Bell JJ) said the following:

“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.” 3

[22] I believe that the observations in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others and Spencer are relevant to my consideration of the s. 587 application of Rich Glen before me.

[23] Central to the case is that of whether Mr Palmer removed oil from Rich Glen’s premises for his personal use in the knowledge of or with the approval of Rich Glen as he contends. Rich Glen for its part is adamant that the conduct of Mr Palmer was contrary to Rich Glen’s policies which were rolled out to employees in mid-2019 and clearly constituted theft. Resolution of that contest over the facts requires the taking and weighing of the relevant evidence.

[24] The starting point of any consideration of an application to dismiss is that Mr Palmer is entitled to have his case heard. I accept that the Commission should be cautious in dismissing an application. I am not persuaded at this stage in the circumstances of the present matter that Mr Palmer has no reasonable prospect of success. I am consequently unwilling to pre-emptively deny Mr Palmer a right to be heard, put his case and answer the material advanced by Rich Glen. This is particularly the case in circumstances where, as a self-represented litigant at the point of his case preparation, his knowledge and familiarity with the processes may have been limited.

[25] I have carefully weighed the materials filed and submissions made by Rich Glen in its application to dismiss the matter. In the circumstances of this matter, I am not persuaded to exercise my discretion to dismiss the matter before me under s. 587 of the Act as sought by Rich Glen.

Conclusion

[26] For the reasons outlined above, the application by Rich Glen under s. 587 of the Act is dismissed. The substantive matter of Mr Palmer’s application under s. 394 application will proceed to be determined in accordance with previous directions issued.


DEPUTY PRESIDENT

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 1   [2013] FWC 7080

 2   (2010) 241 CLR 181.

 3   Ibid at [59] – [60].