DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alka Kumari
v
Metro Trains Melbourne
(U2016/9610)

COMMISSIONER WILSON

MELBOURNE, 17 MAY 2017

Application for costs orders against a party involved in an application for an Unfair Dismissal Remedy; costs order refused. Dispute regarding order for lost remuneration; lost remuneration assessed as earnings the employee would have received had she been at work, less deduction related to employee’s lack of cooperation with investigation.

INTRODUCTION

[1] Through a decision published by the Commission on 1 February 2017, Alka Kumari was found to have been unfairly dismissed by Metro Trains on 1 July 2016 and an order for reinstatement of Ms Kumari, maintenance of the continuity of her employment and continuous service and for the payment of lost remuneration was issued by the Commission. 1 Liberty to apply was granted to the parties for the purposes of settling the order for lost remuneration only.

[2] Subsequent to the issuing of the decision Ms Kumari returned to her former employment on 15 February 2017.

[3] The parties have been unable to agree the quantum of lost remuneration which should be provided to Ms Kumari. Separately Ms Kumari seeks an order for costs against Metro Trains in relation to her legal costs in the original hearing.

[4] A hearing in relation to the costs application and the dispute between the parties about the quantum of lost remuneration was held on Friday, 21 April 2017. This decision concerns both matters.

[5] For the reasons set out below, I dismiss the costs application and determine that lost remuneration should be assessed as earnings the employee would have received had she been at work, less a deduction related to Ms Kumari's lack of cooperation with the investigation conducted by Metro Trains.

BACKGROUND TO THE COSTS APPLICATION

[6] The hearing of the merits of the matter was conducted by me on 19 and 20 January 2017 and at that hearing Ms Kumari was represented by Maurice Blackburn, solicitors, and Joel Fetter, of Counsel. Metro Trains was represented by Jessica Gillam, its Employee Relations Consultant.

[7] Ms Kumari seeks an order for the payment of her costs of representation which she puts at $27,500.01.

[8] The costs application made by Ms Kumari was received in the Commission on 15 February 2017 in the specified form.

[9] However, likely labouring under a misapprehension, Ms Kumari, then represented by her husband Ashok Soeny, in response to a question on the relevant form “Under which section(s) of the Fair Work Act 2009 are you making this application?” ticked each of the four available boxes, two of which relate to costs against parties in general protections matters and unlawful termination matters, which plainly this application is not. As a result I proceed to determine this application on the basis that it relates to the other two indicated boxes, both of which relate to unfair dismissal matters, namely an application pursuant to s.400A (Costs against parties…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 2615
Decision Date: 17 MAY 2017

CaseChat Overview and Summary

The matter before the court involved an application for costs orders against a party involved in an application for an Unfair Dismissal Remedy. The applicant, Alka Kumari, had sought to recover lost remuneration from Metro Trains Melbourne. The case was heard in the Fair Work Commission, which has jurisdiction over unfair dismissal claims in Australia. Kumari had previously been awarded compensation for unfair dismissal, and the current dispute centred on the assessment of her lost remuneration, specifically whether it should include earnings she would have received had she been at work, less any deductions for her lack of cooperation with an investigation.

The legal issues the court had to decide were whether the lost remuneration should be calculated based on what Kumari would have earned had she continued to work, and if so, whether any deductions could be made for her lack of cooperation with the investigation. The primary consideration was whether it was reasonable for the employer to make deductions for the employee’s lack of cooperation, and if the employer's actions were justified under the circumstances.

The court found that the lost remuneration should indeed be assessed based on what Kumari would have earned had she been at work. However, it was reasonable for Metro Trains Melbourne to make deductions related to her lack of cooperation with the investigation. The court emphasised that while an employee's cooperation is important, it is not absolute, and the employer had a legitimate interest in investigating the circumstances of the dismissal. Consequently, the application for costs orders was refused. The court ruled that the assessment of lost remuneration should reflect the employee's potential earnings, adjusted for any justifiable deductions.

The final orders of the court were that the lost remuneration should be calculated as the earnings Kumari would have received had she been at work, less any reasonable deductions related to her lack of cooperation with the investigation. Metro Trains Melbourne was not required to pay additional costs to Kumari for the application.

Orders