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The Commission can dismiss an application under s.587(1) on its own motion or on application.[248]
Without limiting when the Commission can dismiss a matter, an application can be dismissed on the following grounds:
An application will be considered frivolous or vexatious where the application:
Generally, for an application to have no reasonable prospect of success, it must be manifestly untenable and groundless.[251]
The party raising the objection does not need to prove that the other party’s case is hopeless or unarguable.
The Commission must critically assess whether the evidence of the party responding to the objection is of sufficient quality or weight to have reasonable prospects of success.
The party responding to the objection does not need to present their entire case but must present a sufficient outline to enable the Commission to reach a preliminary view on the merits of their case.
The real question is not whether there is any issue that could arguably be heard, but whether there is any issue that should be permitted to be heard.[252]
An application can be dismissed on the basis that it has no reasonable prospects of success, including after the Commission has heard the applicant’s case but before the respondent has started to present its case. However, if a respondent applies at that point for the applicant’s case to be dismissed, it may be required to elect not to call any evidence.[253]
Note: The following case examples relating to the dismissal of applications on the basis that they were frivolous, vexatious and/or had no reasonable prospects of success are drawn from unfair dismissal, stop bullying and other cases.
Shaw v Australia and New Zealand Banking Group Limited t/A ANZ Bank [2014] FWC 3408 (Gostencnik DP, 26 May 2014).
An application was made by Mr Shaw under s.789FC of the Fair Work Act for an order to stop bullying. Before the matter could be heard, Mr Shaw was dismissed from his employment with ANZ.
ANZ applied pursuant to s.587(3) of the Fair Work Act for an order under s.587(1) dismissing Mr Shaw’s application because, since Mr Shaw’s dismissal, there ceased to be a risk that Mr Shaw would continue to be bullied at work by any individual or group.
The Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, was satisfied that Mr Shaw’s application had no reasonable prospect of success. The application was dismissed.
Perrella v ITW Australia Pty Ltd T/A Hobart Food Equipment Service and Sales [2009] AIRC 107 (Williams C, 3 February 2009).
The employee was dismissed for poor performance. There were fundamental disagreements between the parties on the facts of the matter.
The employer sought to dismiss the application and had to prove to the Commission that the employee’s case was so untenable that it could not possibly succeed. The Commission was not able to decide which of the 2 conflicting versions was correct based on the parties’ written submissions alone. To resolve the conflicting views, the Commission would need to have all 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.
The Commission was not satisfied that the application was frivolous, vexatious or lacking in substance such that it should be dismissed without any further hearing.
The respondent could not satisfy the Commission that the application was frivolous or vexatious or lacking in substance. As a result, the matter was listed for hearing so that the evidence in the matter could be heard.
A key consideration for the making of an order to stop bullying and/or sexual harassment is that there is a risk that the worker will continue to be bullied and/or sexually harassed at work. Once the employee has been dismissed then there would not usually be a risk that the employee will continue to be bullied and/or sexually harassed at work.
Application by Mr Jeffrey Vassallo [2021] FWC 132 (Cirkovic C, 12 January 2021), confirmed on appeal: Jeffery Vassallo v Easitag Pty. Ltd. [2021] FWCFB 1554 (Dean DP, Colman DP, Platt C, 23 March 2021)
Mr Vassallo initially filed a claim with the Commission that he had been misclassified under the applicable modern award. The claim was rejected in November 2017. Mr Vassallo was refused permission to appeal that decision (First Appeal) and subsequently applied under s.603 of the Fair Work Act to have the Commission's 2017 decision varied or revoked. Easitag P/L (Easitag) asked the Commission to dismiss Mr Vassallo’s revocation application under s.587(1)(b).
The Commission dismissed Mr Vassallo’s revocation application under s.587(1)(b) of the Fair Work Act. The Commission concluded that the majority of Mr Vassallo’s submissions sought to reagitate matters that were the subject of its 2017 decision, and that the application was an abuse of process, groundless and vexatious.
In finding that Mr Vassallo’s revocation application was an abuse of process, the Commission considered the decision of Rogers v The Queen (1994) 181 CLR 251 at 286 where it was held: ‘Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.’
The Full Bench on appeal held that the approach taken by the Commissioner to Easitag’s s.587 application was entirely orthodox. While such applications generally face a high hurdle, in the present case it was clearly open to the Commissioner to reach the conclusion that the proceedings were groundless and vexatious and plainly open to her to dismiss the application under s.587.
The Commission may dismiss an application for an order to stop bullying or sexual harassment (or both) if the Commission considers that the application involved matters that relate to:
A covert operation is a ‘function’ or ‘service’ of the AFP where knowledge of the operation by an unauthorised person may:
A covert operation might, for example, include an undercover operation to identify those involved in drug trafficking, but would not include general duties policing.[255]
An international operation is an ‘operation to maintain order in a foreign country’ where:
[248] Fair Work Act s.587(3).
[249] Fair Work Act s.587(1).
[250] Micheletto v Korowa Anglican Girls' School PR940392 (AIRCFB, Giudice J, Hamilton DP, Deegan C, 11 November 2003) at para. 17, [(2003) 128 IR 269]; citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (9 November 1964) at paras 8–10, [(1964) 112 CLR 125 at pp. 128‒130].
[251] Wright v Australian Customs Services PR926115 (AIRCFB, Giudice J, Williams SDP, Foggo C, 23 December 2002) at para. 23.
[252] Applicant v Respondent [2010] FWA 1765 (McCarthy SDP, 4 March 2010) at para. 15; citing Wang v Anying Group Pty Ltd [2009] FCA 1500 at para. 43; and Davis v Insolvency and Trustee Service Australia (No 3) [2010] FCA 69 (12 February 2010) at para. 15.
[253] Townsley v State of Victoria (Department of Education & Early Childhood Development) [2013] FWCFB 5834 (Hatcher VP, Hamilton DP, Wilson C, 20 September 2013) at paras 17‒24.
[254] Fair Work Act s.789FE(2).
[255] Note to WHS Act s.8.