s.394 - Unfair dismissal

Application for relief from unfair dismissal - dismissal under s.587(1)(c) at the Commission's initiative - application has no reasonable prospects of success - Application dismissed

• [1] Mr Nathan Glenn (the Applicant) was employed by Ventia Asset Infrastructure Services Pty Ltd (the Respondent) until he was dismissed on 28 February 2025. On 21 March 2025, the Applicant filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the grounds that he was dismissed as a result of a genuine redundancy within the meaning of s.389 of the Act.

• [2] On 15 May 2025, I convened a Directions hearing on the matter. During this hearing I expressed preliminary concerns about the utility of the proceedings, given the Applicant's case based on his stated remedy sought in his Form F2 application. The remedy sought included an apology and a reference.

• [3] The Applicant was assisted by a friend at the directions hearing who did not take issue with my understanding that the Applicant did not seek reinstatement. It was explained on behalf of the Applicant that the Applicant's relationship with the Respondent had deteriorated, and the Applicant was incapacitated for work in any event. The Applicant also accepted that he had suffered no loss of wages as he had been incapacitated for work and was receiving Workcover payments. It was submitted that whilst the Applicant conceded he could not obtain a remedy of compensation for lost income given the facts, it was claimed the dismissal exacerbated his psychological injury, and it was indicated the application may also be relevant for the purposes of a separate claim in relation to a worker's compensation and whether the Respondent's actions were reasonable management action.

• [4] On 19 May 2025, I issued directions for filing of submissions on why I should not dismiss the matter for lack of reasonable prospects of success and both parties filed their written submissions.

• [5] The Applicant submitted that the Commission's consideration of whether the redundancy was genuine, and the dismissal fair is a valid and important process, even in the absence of a remedy being sought. A finding of unfair dismissal in these circumstances upholds the integrity of the Act and ensures accountability for decisions made under it. He submitted that the absence of a remedy being sought does not diminish the merit or relevance of the claim.

• [6] The Applicant submitted that he has shown a sound understanding of the legal process and of his entitlement to remedy. He recognised that to pursue compensation for the loss he has already suffered, namely the aggravation of his psychological condition, as well as any potential loss he may face in the future, he must first establish that his dismissal was unfair. He concluded that without such a finding, his access to appropriate remedy in other jurisdictions is effectively blocked.

• [7] The Respondent submitted that a continuation of these proceedings would be frivolous or vexatious and not within the public interest, or the bounds of effective case management. It submitted that arguably, the public interest is a consideration under both s.587(1)(b) and (c).

• [8] The lack of any reasonable prospect of success derives from the Applicant's admission that there is no remedy sought or available to him that the Commission can determine. It argues that this is a jurisdictional fact. The Commission is only able to order reinstatement, which the Respondent noted is not sought and it submitted would be inappropriate, or compensation, which is unavailable to the Applicant as he has suffered no financial loss. Returning to the wording in s.394(1) of the Act, no remedy under Division 4 of Part 3-2 is available. The Respondent concluded that there is no reasonable prospect of the Applicant being successful in his application as a result.

• [9] The Respondent went on to argue that continuing such an application where no remedy is available is frivolous and vexatious as well as an abuse of process. The Respondent contended that the Applicant's only motive for the continuation of the case is ulterior to the Unfair Dismissal application itself. Ostensibly, this is to pursue an ongoing workers compensation claim, which is separate and distinct to the Commission proceedings. There is no bona fide attempt to resolve the underlying dispute. The Respondent submitted that case law[1] suggests that conducting litigation for an ulterior motive and collateral purpose is clearly vexatious and an abuse of process. Therefore, it should be eschewed by the Commission. Absent any available remedy, the Respondent submitted that it is clear that the Applicant has no other bona fide reason to run his case.

• [10] The Respondent submitted that the Commission should not be used as a vehicle for bolstering the strength of other potential claims. This is antithetical to the object of the Act and clearly contrary to the public interest as defined above.

• [11] The Respondent contended that allowing these proceedings to continue for a motive that is collateral ulterior to receiving a remedy under Division 4 Part 3-2 of the Act would result in unnecessary time, effort and costs expended by both the Respondent and the Commission. Although the Applicant has a right to be heard, the continuation of proceedings which constitute an abuse of process detract from the Commission's ability to deal with other, more meritorious applications.

• [12] Section 587 of the Act provides:

(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.

(a) on its own initiative; or

(b) on application."

• [13] Section 587 allows the Commission to dismiss an application on the Commission's own initiative, subject to affording procedural fairness.

• [14] Applications can be dismissed under s.587 when there is no reasonable prospect of an outcome in the Applicants favour. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law and is not available if there are live facts in issue that could affect the outcome of the proceedings.[2]

• [15] There have been several unfair dismissal cases before the Commission where during the evidence in proceedings, it has become apparent that despite the Applicant succeeding in obtaining a finding that their dismissal was unfair, they have not been awarded a remedy. This has generally been because the Applicant has not sought reinstatement, and the evidence has disclosed that considering the criteria in s.392 no compensation should be ordered because there has been no loss of remuneration.

• [16] This case is distinguishable from the circumstances described above because it is clear in this matter, prior to the filing of any evidence, and as conceded by the Applicant, that he cannot obtain a remedy for loss of remuneration. He does not seek reinstatement and has made clear he will not be fit to be reinstated. He also concedes he would not be entitled to any compensation for loss of remuneration and does not contest he would not have lost any remuneration that he otherwise would have received, or would have been likely to receive, if he had not been dismissed because he could not work and has received workers compensation payments.

• [17] Section 392(4) is clear that the amount ordered by the Commission as compensation must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal. The authorities make clear that compensation is directed to lost remuneration. The Commission has a degree of discretion in assessing the loss of remuneration, subject to the statutory cap and all of the criteria in s.392.

• [18] The Applicant has been given the opportunity to respond to the concern about the utility of the proceedings at the directions hearing, and by the filing of written submissions in response to my raising the prospect that the application may have no reasonable prospects of success. On both occasions the Applicant has referred to these proceedings being of some relevance to his workers compensation claim. The Applicant has submitted the unfair dismissal proceedings will address the issue of whether the Respondent engaged in reasonable management action, and a finding that the Applicant has been unfairly dismissed will be of assistance to him in the workers compensation claim. Those are matters that are properly addressed in the other proceedings and are not an appropriate purpose of this application to proceed to a formal hearing in circumstances where no remedy can be obtained in this jurisdiction.

• [19] Section 394 of the Act reads as follows:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy."

• [20] It is apparent from the plain language in s.394 of the Act that an application made under s.394 is for the purpose of seeking an order under Division 4 granting a remedy. The Applicant concedes he cannot obtain a remedy and based on the information provided to the Commission and I agree that the Applicant has no reasonable prospects of obtaining a remedy.

• [21] This conclusion leads inexorably to the conclusion that the application itself has no reasonable prospects of success. That is because the statutory purpose of an application made under s.394 is not directed to obtaining a finding that the dismissal was unfair in and of itself. Instead, it is directed to the seeking of an order from the Commission under Division 4 granting a remedy, for which a finding that the dismissal was unfair is a necessary prerequisite to obtaining such an order.

• [22] In circumstances where it is not contested that such order cannot be obtained at a point in time before parties are put to the time and cost of filing evidence and submissions, it is appropriate for the Commission to exercise power to prevent the unnecessary waste of time and resources and the throwing away of public resources.

• [23] I am satisfied that the Applicant's claim has no reasonable prospect of success within the meaning of s.587(1)(c). As I have reached that conclusion, it is unnecessary to address the submissions made by the Respondent in relation to section 587(1)(b). In the circumstances it is appropriate to abandon the directions issued by the Commission for the filing of evidence and submissions and it is appropriate to dismiss the application on the Commission's own initiative using the power available in s.587(3)(a). An order to this effect will be issued separately and

[1] Director of Public Prosecutions v Humphrys [1977] AC 1 at 46; Bosch v Ministry of Transport [1979] 1 NZLR 502 at 509 and Miller v Ryan [1980] 1 NSWLR 93 at 109; Re Septimus Parsonage & Co [1901] UKLawRpCh 120; [1901] 2 Ch 424; Gaskell & Chambers Ltd v Hudson Dodsworth and Co [1936] 2 KB 595 at 603-604; Attorney-General v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481; Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667.

[2] Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302.

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