PR974223
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.643 application for relief in respect of termination of employment

Simone Taminiau
(U2006/5063)

Gabrielle Susan Thomson
(U2006/5171)

and

Austin Group Limited

COMMISSIONER HARRISON

SYDNEY, 5 OCTOBER 2006

Termination of employment- s 646(1) jurisdictional motion

DECISION

[1] On 21^st and 31^st July 2006, Ms Simone Taminiau and Ms Gabrielle Thomson (the Applicants) respectively lodged applications for relief in respect of their terminations of employment by Austin Group Limited (the Respondent), pursuant to s.643 of the Workplace Relations Act (the Act). In the applications, the grounds cited were that the terminations were harsh, unjust and unreasonable.

[2] The Respondent is a clothing wholesaler and distributor in Australia and New Zealand.

[3] On the 3 and 7 August 2006 respectively, the Respondent lodged Notices of Motion to dismiss the applications on the grounds that they were frivolous, vexatious or lacking in substance, pursuant to section 646(1) of the Act. The Respondent also attached written submissions in support of its Notices of Motion.

[4] On 8 August I wrote to the Applicants providing a copy of the Notices of Motion and the grounds in support, and requesting that they provide any materials they wished to rely upon in response by 1 September 2006.

[5] Both Applicants’ separate submissions were received on 31 August 2006 and upon reviewing the submissions of all parties, I was of the opinion that the determination of the Respondent’s Notice of Motion required a formal hearing.

[6] At the hearing on 3 October the parties agreed to the applications being joined. The Applicants were self represented and Mr M Reid, Solicitor represented the Respondent.

[7] Section 646 of the Workplace Relations Act 1996 (the Act) states:

“646 - Applications that are frivolous, vexatious or lacking in substance
(1) If:
(a) an application is made, or purported to have been made, under subsection 643(1):

(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground; and

(b) the respondent moves for dismissal of the application on the ground that it is frivolous, vexatious or lacking in substance; and

(c) the Commission is satisfied that the application is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 643(1)(a);

the Commission must:

(d) if subparagraph (a)(i) applies - make an order dismissing the application; or

(e) if subparagraph (a)(ii) applies - make an order dismissing the application to the extent that it is made on the ground referred to in paragraph 643(1)(a).

(2) If:
(a) an application is made, or purported to have been made, under subsection 643(1):

(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground; and

(b) the respondent moves for dismissal of the application on the ground that it is frivolous, vexatious or lacking in substance; and

(c) the Commission is not satisfied that the application is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 643(1)(a);

the Commission must:

(d) if subparagraph (a)(i) applies - make an order refusing the motion for dismissal; or

(e) if subparagraph (a)(ii) applies - make an order refusing the motion for dismissal, to the extent that the application is made on the ground referred to in paragraph 643(1)(a).

(3) The Commission is not required to hold a hearing in relation to the making of an order under subsection (1) or (2).”

[8] A brief background to this matter is that the Applicants were dismissed for serious misconduct and gross breach of fidelity and trust. They were both employed by the Respondent in relatively senior positions for approximately 3 years.

[9] It is not disputed that in April and May 2006, the Applicants formally registered the following internet domain names: www.rochfordaustralia.com, www.rochfordaustralia.com.au and www.billiecart.com.au. These core names are registered trademarks of the Respondent.

[10] Ms Taminiau stated that she and her sister planned to establish an online business. Ms Thompson stated she had a long term plan of creating a website and selling products online. Both Applicants denied that they acted in any secretive manner nor did they make any personal gain.

[11] At the conclusion of proceedings on 3 October I recorded my decision on transcript which, in part said:

“These days, it is popular with some people, to talk about enterprise workers. In this matter, the undisputed facts are that two highly regarded employees placed themselves in a conflict of interest position with their employer. What they did was enterprising but ultimately naïve. It created a complete breakdown in the employment relationship.”

[12] In granting the applications for orders to dismiss pursuant to s.646 of the Act, I accepted the Respondent’s submissions that the original applications for relief were lacking in substance.

[13] Section 646 of the Act is a relatively new provision having commenced operation on 27 March 2006. In my opinion, granting a motion to dismiss an application before conciliation is a serious matter. Prima facie, the parties have a right to be heard and the merits of an application for relief should be fully tested against a submission that the application is “frivolous, vexatious or lacking in substance”.

[14] The Respondent submitted that the meanings of the terms “frivolous” and “vexatious” were well known and referred to in Day v Victorian Railway Commissioners 1 where Dixon J stated that “a case must be very clear indeed” to justify summary dismissal and that “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”.

[15] In the same judgement, Dixon J also cited the following passage from the judgement of O’Connor J in Burton v Shire of Bairnsdale 2

“Prima facie every litigant has a right to have matters of law as well as fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed”

[16] In the circumstances of this matter, particularly having regard to the allegations of the Respondent and the admissions of the Applicants, there is no real question to be determined in any prospective proceedings before the Commission.

[17] The Applicants’ actions in using the Respondent’s trademarks for improper potential gain was a clear breach of good faith, fiduciary duty and an exercise of conflict of interest which cannot have any place in a direct employment relationship.

[18] At the conclusion of the proceedings on 3 October, I further stated that I was satisfied the applications were not arguable in fact or law. It is for these reasons that the Motions to Dismiss for Want of Jurisdiction pursuant to s.646 (1) of the Act were granted.

[19] Orders giving effect to this decision are attached as PR974255 and PR974256.

BY THE COMMISSION:

COMMISSIONER

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 1   (1949) 78 CLR 62 at 91-92

 2   (1908) 7 CLR 76 at 92