[2014] FWC 5457

The attached document replaces the document previously issued with the above code on 13 August 2014.

In the last sentence of paragraph [4], the reference to s. 587 is amended to s. 586.

Abby Lang

Associate to Deputy President Gostencnik.

Dated 14 August 2014

Fair Work Act 2009
s.394—Unfair dismissal

Gheorghe Stan
v
Frontline Australasia
(U2014/5712)

Application for relief from unfair dismissal; applicant deceased prior to determination of application; whether application for unfair dismissal remedy made under s. 394 survives death of applicant and may be continued to an estate; no reasonable prospect of success; application dismissed

Introduction

[1] Stan Gheorghe (Applicant) commenced employment with Frontline Australasia Pty Ltd (Respondent) on 7 November 1988. Prior to the commencement of his employment with the Respondent, the Applicant was employed as a machine operator in the Respondent’s automotive division. On or about 25 February 2014 the Applicant signed what appears to be a letter of resignation from his employment. On 18 March 2014 the Applicant lodged an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act). The Respondent raised an objection to the application on the ground that the Applicant had not been dismissed within the meaning of s. 386 of the Act.

[2] On 27 May 2014, before any of the issues that required determination by the Commission were considered, the solicitors acting for the Applicant advised that the Applicant had passed away. At that stage the Applicant’s solicitors asserted that Ms Rodica Posogeanu was the Applicant’s next of kin and wished in that capacity to continue with the application. The Applicant appears to have died intestate. It also appears that State Trustees are involved in obtaining a grant of probate or administration.

[3] State Trustees has not sought any order seeking to continue this application. Ms Posogeanu has been given a number of opportunities to provide to the Commission evidence of her status as next of kin or evidence otherwise of her capacity and legal authority to purport to continue with the application made by the Applicant. No evidence of any legal authority has been provided. Ms Posogeanu now accepts that she is not the Applicant’s next of kin and her status is only that of a long-term friend of the Applicant. Ms Posogeanu does not have any standing to appear in the application or to seek permission to continue the application in her own name or on behalf of the deceased Applicant’s estate.

Consideration

[4] The rules of the Federal Court of Australia contemplate the capacity to continue proceedings in Fair Work Act 2009 applications in the event of death if the interest in the proceedings or the liability of a party in the proceedings passes to another person during a proceeding, by assignment, transmission, devolution or by any other means 1. There is no similar rule to be found in the Fair Work Commission Rules 2013. Further there is no express rule or provision in the Act which would allow a substitution of a party in these circumstances2. I am prepared to assume without deciding that such a power may exist under s. 586 of the Act.

[5] At common law there are some rights or causes of action which by their nature cease to exist upon the death of a relevant party. In general this common law rule applied to certain actions in tort. In Victoria this common law rule is overcome by s. 29 of the Administration and Probate Act 1958 (AP Act).

[6] A right of action for a breach of contract or a right that is proprietary in nature will also generally survive, for and against the estate of the deceased 3.

[7] The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee. The Act does not confer a right to a remedy, but only a right to make an application and having it heard according to law. It is a right that is a bare and non-assignable right and generally is not one that is to be regarded as a proprietary right 4. The remedies of reinstatement, loss of pay orders or compensation that might be available do not follow simply because an applicant is successful in persuading the Commission that his or her dismissal was harsh, unjust or unreasonable. The remedies that might be granted are discretionary and the remedy of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement5.

[8] In my view s. 29 of the AP Act does not have the result of continuing an unfair dismissal remedy application for the benefit of the Applicant’s estate. On its face s. 29 of the AP Act is concerned with the survival of a cause of action so as to allow “damages” to be recovered for the benefit of the estate of the deceased. The remedies available in an application for an unfair dismissal remedy are not “damages”.

[9] In my view, the personal and discretionary nature of the remedy that might have been available to the Applicant had he succeeded in his application and the nature of the right to apply for a remedy makes it unlikely that the right to bring and maintain the application is something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order. However as there is no application by any person with legal standing to assert the contrary or who seeks such an order it is unnecessary for me to finally decide that question.

[10] In any event I am of the view that the application should be dismissed on the basis that it no longer has any reasonable prospect of success.

[11] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Let me first deal with the meaning and application of the phrase, “has no reasonable prospect of success”. Without traversing in any great detail the authorities that have considered the proper application and meaning of the phrase, “no reasonable prospect of success,” it is sufficient for present purposes to make the following observations. 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. But these examples do not provide an exhaustive description of when a particular application has no reasonable prospect of success.

[12] Secondly, I am mindful of that which the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia 6 had to say when their Honours considered 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 their Honours 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. 7 

[13] In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “has no reasonable prospect of success” as it appears in s. 587 of the Act.

[14] Thirdly, I would also observe that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. This, it seems to me, is evident from the word “has”. So it is that an application at its inception may have some reasonable prospect of success but, as circumstances change during the course of dealing with an application, those changed circumstances might have the result that an application which once had some reasonable prospect of success no longer has a reasonable prospect of success.

[15] In this case the relevant circumstance that has changed since the Applicant made his application on 18 March 2014 is that he has passed away. The Respondent relies on a written letter of resignation signed by the Applicant. In materials filed in preparation for the hearing of the Applicant does not dispute that he signed the letter of resignation, but says he was forced to do so. This is an allegation that is denied by the Respondent. The Applicant is not able to be called to give evidence about the circumstances in which he signed a letter of resignation and is not able to be cross-examined about those matters. In short, the Applicant will not be able to give any evidence in support of his allegation that his dismissal was not voluntary.

[16] The allegation itself contains little by way of factual assertions as to the conduct of the Respondent from which it could be concluded that the resignation was not voluntary. The statement filed by the Applicant is not in the form of a sworn affidavit or statutory declaration, nor is it a statement of the kind which might otherwise be regarded as a dying declaration to which regard might be had. The evidence that is proposed to be given by Ms Posogeanu is hearsay evidence, which even if account is to be taken of it, has little or no probative value as it does not speak to what was said or done by the Respondent to procure the alleged involuntary resignation. In the circumstances, it seems to me that by reason of the Applicant’s death and given the controversy surrounding the resignation, which on the available admissible evidence will result in a conclusion that the Applicant resigned voluntarily, the application has no reasonable prospect of success.

Conclusion

[17] In the circumstances the application is dismissed. An order to that effect is issued separately in PR554154.

DEPUTY PRESIDENT

 1   See rule 9.09 of the Federal Court Rules 2011

 2   See rule 9.10 of the Federal Court Rules 2011

 3   See Woolworths Ltd v Crotty (1942) 66 CLR 603

 4   See Millington v Traders International Pty Ltd [2014] FWCFB 888 at [71]

 5   Ibid at [72] – [76]

 6   (2010) 241 CLR 118

 7   Ibid at [59] - [60]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR554151>