Andy Cowper v Trustees of Edmund Rice Education Australia T/A St Joseph's Flexible Learning Centre

[2020] FWC 316

[2020] FWC 316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andy Cowper
v
Trustees of Edmund Rice Education Australia T/A St Joseph’s Flexible Learning Centre
(U2018/6737)

COMMISSIONER BISSETT MELBOURNE, 28 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 23 September 2019 Commissioner Gregory issued a decision 1 in relation to liability and reinstatement (Liability Decision) in which he found that Mr Andy Cowper (Applicant) had been unfairly dismissed from his employment with Trustees of Edmund Rice Education Australia T/A St Joseph’s Flexible Learning Centre (Respondent). The Commissioner further concluded that reinstatement was not appropriate in the circumstances. On 25 October 2019 Commissioner Gregory issued a further decision2 (Compensation Decision) in which he determined that the Applicant should be awarded compensation in the sum of $42,976.96. An order3 to this effect was issued.

[2] The Applicant now seeks an order for costs against the Respondent pursuant to s.400A and s.611 of the Fair Work Act 2009 (FW Act). This decision deals with the costs application of the Applicant. The application for costs was made 8 November 2019.

[3] On 26 November 2019 I issued directions to the parties in relation to the filing of submissions in relation to costs. Both parties complied with those directions and further requested that the Commission determine the costs application on the basis of the material filed without any further hearing.

The power to award costs

[4] The presumption in the FW Act is that each party will bear its own costs. 4 The Commission however retains a discretionary power to award costs against a party to an unfair dismissal matter if it reaches the requisite satisfaction in the FW Act.

[5] In this application the Applicant relies on s.400A and s.611 of the FW Act. They state:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC's power to order costs under section 611.

611 Costs

(1) A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

[6] Section 402 of the FW Act requires that an application for costs under s.611 or under s.400A must be made within 14 days of the determination of the matter by the Commission. I am satisfied that the costs application was made within 14 days of the Compensation Decision such that the application was made within time and can be considered by the Commission.

Background

[7] The Applicant was dismissed from his employment on 8 June 2018. On 29 June 2018 he filed an application seeking relief from unfair dismissal (the Application) with the Commission. The Applicant has been represented at all times in the proceedings.

[8] On 11 July 2018 Colin Biggers & Paisley Lawyers filed a notice of representative commencing to act for the Respondent. A Form F3 employer response to the Application was filed on 16 July 2018.

[9] Conciliation was conducted by a staff conciliator at the Commission on 31 July 2018. The matter was not resolved in conciliation.

[10] Submissions in relation to hearing the Application were filed and served by the Applicant on 27 August 2018 and the Respondent on 21 September 2018.

[11] On Friday 9 November 2018 at 10.55am 5 the Applicant’s representative put forward a without prejudice save as to costs settlement offer6 (the first settlement offer) to the Respondent in the following terms:

•  A payment to the Applicant of $30,000.00;

•  Termination to be communicated as a resignation; and

•  The Applicant receive a statement of service confirming his duties, length of service; resignation date with a (name withheld) as the contact point at the Respondent for queries as to his employment.

[12] The Respondent was given until 12.00pm Monday 12 November 2018 to accept the offer.

[13] At 12.16pm on Friday 9 November 2018 the Respondent’s representative sought an extension until Thursday 15 November 2018 to respond to the first settlement offer as there were numerous people from whom instructions would need to be sought and it was not thought that this could be completed by the deadline. 7 This request was rejected by the Applicant’s representative as its ‘client will begin to incur barristers’ costs from Monday afternoon’.

[14] The fist settlement offer was subsequently rejected by the Respondent.

[15] The Application was heard on 19, 20 and 21 November 2018 with the Liability Decision issued by Commissioner Gregory on 23 September 2019 in which he found that the Applicant had been unfairly dismissed.

[16] On 24 September 2019 the Commissioner issued further directions with respect to filing material on compensation (having found in the Liability Decision that reinstatement was not appropriate). The Applicant was required to file his submissions and evidence by 2 October 2019 and the Respondent by 9 October 2019.

[17] On 26 September 2019 at 5.23pm 8 the Applicant put a further without prejudice save as to costs offer to the Respondent (the second settlement offer). The offer said, in part:

We have now had the opportunity to review the Decision and we consider that Commissioner Gregory erred in not reinstating Mr Cowper.

In our view, the Decision appears to place [an] over emphasis on the demeanour and hostility of the witnesses towards our client, which the Decision confirms was irrationally based and due in part, to their misconception of our client’s alleged inappropriate conduct.

It is also plainly apparent that in view of Commissioner Gregory’s approach to the principal of trust and confidence, and the serious injustice to our client in this matter, there is a significant public interest in having the matter of reinstatement reviewed.

Furthermore, as a result of St Joseph’s Flexible Learning Centre’s (SJFLC) decision to unfairly dismiss our client, without basis, our client suffered a lengthy period of time out of the workforce without an income. Upon retaining reemployment, due to the huge personal anguish … our client remains unable to return to his previous chosen profession. This has caused both significant and ongoing financial loss to our client, and … continues to cause considerable distress to him and his family.

…

As a result, we are considering an appeal of the Decision, specially concerning the matter of reinstatement, in which our client would also seek an order to restore lost pay…

[18] The second settlement offer then set out the proposed settlement comprising:

•  A payment to the Applicant of $45,000.00 representing six months’ salary; and

•  A further payment of $25,298.00 for legal costs incurred from 9 November 2018 until the end of the arbitration hearing.

[19] The offer remained valid until 12.00pm Monday 30 September 2019. 9

[20] The Respondent’s representative responded that day in a without prejudice save as to costs letter which said, in part:

our client is also disappointed by the outcome of the decision, as it believes Mr Cowper’s dismissal was fair and that his dishonesty was overlooked by the Commissioner, who admits at [152] of the decision that he found it “difficult to come to a firm conclusion” relating to whether your client was deliberately dishonest or not. This suggests to us that the case was one that was very finely balanced …

You make bold assertions in your correspondence that in the absence of further particularisation by you are unconvincing and unpersuasive, leaving me in a position unable to obtain genuine instructions in relation to your offer.

[21] The Respondent’s representative therefore sought further information from the Applicant’s representative, including:

•  Where, in the decision, the Commission “appears to place [an] over emphasis on the demeanour and hostility of the witnesses” to the Applicant;

•  The names of witnesses referred to;

•  Why the findings of the Commissioner in relation to witness demeanour were not available to him;

•  Why the Commissioner’s approach to the principals of trust and confidence are open to review on public interest grounds;

•  The provision of evidence demonstrating that the Applicant had sought to mitigate his loss;

•  Evidence of remuneration earned by the Applicant since his dismissal;

•  Why six months’ salary is considered a fair amount to settle the matter;

•  Evidence of legal fees;

•  The basis on which a claim for costs might succeed in circumstances where the Applicant had indicated that nothing but reinstatement could resolve the matter until the evidence was filed.

[22] The Respondent received no reply to this correspondence.

[23] Materials were filed with respect to compensation with that matter apparently determined without further hearing.

[24] The Applicant was awarded compensation of $42,976.96 which represented the maximum amount that could be awarded taking into account the compensation cap specified in the FW Act.

Submissions of the Applicant

[25] The Applicant relies on its written submission (attachment A to application for costs), attachments A-1 – A-4 to the submission and a copy of tax invoices for legal services.

[26] The Applicant seeks indemnity costs from 9 November 2018 until the completion of submissions on compensation on 25 October 2019.

[27] The Applicant submits that the Respondent should be liable for the Applicant’s legal costs to the extent that proceedings in the Commission were unnecessarily prolonged by the Respondent after November 2018 when the Respondent rejected the Applicant’s first settlement offer 10 and in circumstances where the first settlement offer was lower than that amount ultimately awarded by the Commission.

[28] The Applicant submits that the Respondent’s act in rejecting the first settlement offer and not making a counteroffer in an attempt to resolve the matter constitutes an unreasonable act or omission on the part of the Respondent which caused the Applicant to incur further costs.

[29] The Applicant says that this is particularly so when the Applicant’s evidence had at that time been filed in full and there were key factual matters that could have been determined on the papers. In particular the Applicant refers to the statement of Commissioner Gregory at [153]:

…

•  The conclusions in the investigation report attribute statements to Mr Cowper that he did not make to the investigator. These are significant discrepancies in the investigation report, which ultimately found that it was “reasonable for the Decision Maker to make a finding of Substantiated” in respect of both of the allegations levelled at Mr Cowper. The conclusions in the report were also clearly influential in contributing to the Centre’s decision to terminate Mr Cowper’s employment.

[30] The Applicant submits that on having these matters brought to its attention in submissions and evidence it was unreasonable for the Respondent to reject the first settlement offer.

[31] The Applicant also submits that the resistance of the Respondent to the production of documents that it then offered to provide on the final day of hearing in November 2018 11 is grounds for the making of an order as to costs on the basis that the resistance was an unreasonable act or omission.12

[32] The Applicant submits that the final compensation Order made by Commissioner Gregory supports its contention that the Respondent’s case had little prospect of success. It should have been ‘plainly apparent’ to the Respondent following from the Liability Decision that its case would have resulted in the Applicant receiving more than the first settlement offer.

[33] A failure of the Respondent to consider the second settlement offer also constitutes an unreasonable act or omission in connection with the continuation of the matter which caused the Applicant to incur unnecessary costs. 13

[34] The Applicant submits that once the pre-condition for the award of costs has been made out there is no restriction inherent in s.400A of the FW Act on the ability to award those costs on an indemnity basis.

Submissions of the Respondent

[35] The Respondent relies on its written submissions, an affidavit of Mr Paul O’Halloran (partner with the Respondent’s lawyers) and attachments POH-1 – POH-5 to that affidavit.

[36] To the extent that the Applicant relies on conduct at the conciliation conference the Respondent submits that the conference was conducted on a without prejudice basis 14 and it objects to that conduct being taken into account in determining the costs application.

[37] The Respondent submits that the case involved a number of key factual disputes, including:

•  The nature of the incident on 23 October 2017;

•  Whether the incident should have been immediately reported;

•  The accounts given by the Applicant to colleagues in the days following the incident; and

•  The Applicant’s record.

[38] The Respondent submits, contrary to the submission of the Applicant, that these matters were not ‘plainly determinable on the papers’.

[39] The Respondent submits that ‘whether an act of omission is unreasonable is to be determined as a matter of fact having regard to the circumstances of each case’.

[40] Should the Commission be minded to award costs under s.400A the Respondent submits that a further issue then arises as to whether costs should be awarded on an indemnity basis. It submits that while indemnity costs may be awarded where a party had imprudently refused a Calderbank offer, an unsuccessful party is not liable for indemnity costs because it received an offer to settle on terms more favourable than the compensation ultimately awarded. The Respondent submits that ‘it is necessary to assess the rejection of the offer as the circumstances as they pertained at the time’ including:

•  The stage in proceedings the offer was made;

•  Time allowed to respond to the offer;

•  Clarity with which the terms of the offer were expressed; and

•  Whether the offer foreshadowed an application for indemnity costs in the event of rejection. 15

[41] The Respondent also submits that a Calderbank offer will not be taken into account on the question of costs unless the offer involves a ‘real and genuine element of compromise’ 16 and that an offer that fails to properly explain why the opposing case should fail is unlikely to attract indemnity costs.

[42] The Respondent submits that it has not conducted itself unreasonably. It says its failure to accept the first settlement offer was not unreasonable because:

•  Unlike the circumstances in Mifsud v Veolia Transport Sydney Pty Ltd 17 it did consider the settlement offer and rejected that offer;

•  At the time the offer was made the Respondent considered it had a sound defence to the claim;

•  The Respondent was entitled to vigorously defend the claim of the Applicant. That it took 10 months to hand down the Decision that went to 180 paragraphs on liability and reinstatement suggests the claim was ‘hard fought and not straightforward’;

•  That the Applicant was awarded maximum compensation says nothing of the Respondent’s prospect on liability;

•  The refusal to accept the first settlement offer was informed by its concerns with the non-monetary aspects of the offer including a belief the Applicant had behaved dishonestly; the quantum of the offer (four months’ salary), the requirement that the termination be considered a resignation where this would be a misrepresentation and inconsistent with reporting obligations and the requirement that a particular person be the named point of contact and that the school might be seen to be giving a reference for the Applicant in light of the gravity of the matters; and

•  The Respondent’s rejection of the offer should be considered in the context of the short time frame the offer was open and the mere assertion of success without explanation of the weakness in the Respondent’s case.

[43] The Respondent submits that its failure to accept the first settlement offer or make a counter offer does not place it within that group of litigants who ‘defend unfair dismissal claims in an unreasonable manner.’ 18

[44] On the question of indemnity costs the Respondent submits that the Applicant has failed to identify any conduct on the part of the Respondent that would rise to the level necessary to award such costs.

[45] With respect to the second settlement offer the Respondent submits that this offer was made:

•  Under threat of appeal of the Liability Decision;

•  Seeking payment of the statutory maximum without explanation as to the basis of that amount; and

•  Seeking additional payment of legal fees without any explanation as to that amount.

[46] A request from the Respondent for further details in respect to the second and third items did not elicit a response from the Applicant.

[47] The Respondent submits that the second settlement offer ‘did not involve a real and genuine element of compromise’ in circumstances where what was sought was the maximum statutory compensation plus legal expenses. That offer, it says, was no more than an offer to the Respondent to capitulate. The assertion that the Respondent did not consider the offer is without foundation in circumstances where the Applicant did not provide the information sought by the Respondent.

[48] In these circumstances the Respondent submits that the failure to accept the second settlement offer was not unreasonable and, in any event, any costs incurred as a result of the failure to accept that offer are limited to those incurred after the offer lapsed.

[49] As to the access to documents, the Respondent said that its conduct was not unreasonable. Whilst the initial refusal may have caused some (minimal) costs to be incurred, the documents were ultimately provided saving the time and expense of an interlocutory hearing. If the Commission decides otherwise the Respondent says that, at most, the conduct of the Respondent amounts to inefficient conduct of proceedings which is not, of itself, grounds for the exercise of discretion to award costs.

Consideration

[50] Before deciding if costs should be awarded on an indemnity basis it is appropriate (and efficient) to determine if the Respondent has engaged in some unreasonable act or omission such that the pre-requisite for the award of costs is made out.

[51] The factual background in relation to this matter is set out above as are the submissions of the parties. I have considered this information in my findings below.

[52] The FW Act provides that a person appearing before the Commission must bear their own costs. Even if the pre-requisites for the award of costs are made out the decision to award costs is a discretionary one - that is the Commission is not required to award costs in such circumstances.

[53] The relevant principals applicable to a consideration of what might be considered reasonable actions in the context of a costs application under the FW Act was considered by the Full Bench of the Commission in Roy Morgan Research Ltd v Baker. 19 In reaching its conclusion, the Full Bench cited the following from the decision in Brazilian Butterfly Pty Ltd v Charalambous:20

[43] A reasonable person, who is a party to proceedings pursuant to s.170CE, when confronted with an offer of settlement from the other party, will determine whether, and if so, how to respond to such an offer after considering all the circumstances of the case, including:

•  the terms of the settlement offered in relation to the relief sought;

•  the relative strengths of the parties’ cases (and thus their relative prospects of success) in relation to both ‘liability’ and the relief sought;

•  any assessment of the merits in the certificate issued by the Commission pursuant to s.170CF(2);

•  the likely length and cost of proceeding to a hearing if the matter does not settle; and

•  any adverse consequences that will accrue to a party if they accept a settlement on particular terms rather than successfully prosecute or defend the primary application, as the case may be.

[54] Putting aside the reference to a certificate issued by the Commission (such a requirement no longer forms part of the statutory scheme) the approach articulated provides appropriate guidance to the determination of the matter before me.

[55] It is apparent from the Liability Decision that there was, in the evidence, substantial factual dispute over what had occurred on the relevant day in question; whether there was an obligation to report the incident and what was said by the Applicant both to staff and to the investigator and if the Applicant had sought to alter the emphasis of what had been said. This is relevant in considering the relative strengths of the parties’ respective cases.

[56] After grappling with these issues 21 the Commissioner concluded:

[152]It is difficult to come to a firm conclusion about whether Mr Cowper deliberately or otherwise sought to recast his original version of what occurred after becoming aware of what later transpired on the evening of 23 October. On the one hand it can be argued that the other staff members involved had little reason or motivation to misrepresent what they were initially told by Mr Cowper. At the same time there is no reason to take issue with Mr Cowper’s evidence …

[57] There were a number of factual issues to resolve prior to deciding if there was a valid reason for dismissal. The resolution of those issues impacted on findings as to valid reason as articulated by the Commissioner at [153] of the Liability Decision.

Was the refusal to accept the first settlement offer an unreasonable act or omission?

[58] It is well accepted that it is not unreasonable conduct on the part of a losing party to vigorously defend itself. In this case the Commissioner accepted there was a factual dispute to be resolved. It is not unreasonable that the Respondent, having recognised the factual dispute following the filing of submissions and evidence of the parties, concluded that the determination as to whether the dismissal was unfair was not clear cut and hence should be defended.

[59] It is not apparent on the material before me why the Applicant provided such a limited period, and refused to extend that period, within which the Respondent could consider the first settlement offer. In the limited period available to it I accept that the Respondent sought what instructions it could. The grounds put forward as understood by Mr O’Halloran for the refusal of the offer, in those circumstances, appear to be reasoned, the offer properly considered and there being sound reasons for its refusal.

[60] Considered objectively I am not convinced that the actions of the Respondent in rejecting the first settlement offer was an unreasonable act or omission on its part. The offer was put 10 calendar days prior to the scheduled commencement of hearing and was ‘on the table’ for slightly more than one working day. Whilst the Respondent sought an extension until the Thursday to consider the offer the outright refusal to allow for any extension forced the Respondent into a much more time limited consideration of the first settlement offer prior to its rejection.

[61] Further, in circumstances where there were factual issues in dispute, I do not consider it an unreasonable act or omission for the Respondent to decline the offer and seek to have the matters arbitrated by the Commission.

[62] For these reasons I do not consider the refusal of the first settlement offer an unreasonable act or omission that would enliven the consideration of the award of costs.

Was the refusal of the second settlement offer an unreasonable act or omission?

[63] At the conclusion of the liability hearing and the issue by the Commission of the Liability Decision in which the Applicant was found to have been unfairly dismissed the Applicant put the second settlement offer to the Respondent. That offer was put after close of business on Thursday 26 September 2019 (noting that Friday 27 September 2019 was a public holiday in Melbourne and the representatives of both parties are Melbourne based) and remained valid until noon the following Monday. In effect it was ‘on the table’ for about three working hours. Tellingly, the second settlement offer was made prior to submissions on compensation having been made – the Respondent therefore not having any forewarning as to what the Applicant might put in its compensation arguments.

[64] A request by the Respondent for further details and/or reasoning for the basis of the second settlement offer did not elicit a response from the Applicant.

[65] In circumstances where what was sought by the Applicant in the second settlement offer was more than the Commission could award in total (six months’ pay and legal costs) it would not appear, on its face, for it to be unreasonable of the Respondent to have sought further detail as to the basis on which such a settlement was sought.

[66] I am not of the view that all of the further information sought by the Respondent was unreasonable but in any event it did open the door to the Applicant to engage in some discussions but this opening, slight as it may have been, was closed by the Applicant. The second settlement offer was very much on a take it or leave it basis. I would note that some of the information sought by the Respondent went directly to issues taken into account by the Commissioner in reaching his conclusion as to compensation, in particular the question of mitigation. Whilst ultimately this had no effect on the award of compensation it was not a trifling matter.

[67] In the circumstances of the amount sought by the Applicant in the second settlement offer and where the Commission is a jurisdiction where the primary rule is that each party meets its own costs, I am not satisfied that the decision of the Respondent in not accepting the second settlement offer was an unreasonable act or omission. The Respondent knew its maximum exposure from any Commission order for compensation would be six month’s salary and that generally parties would meet their own costs for the proceedings. The Applicant sought more than this in circumstances where any future cost was minimal (remedy submissions were due but the question was to be determined without further hearing) such that, in the context of the case, any exposure to a costs application, should it be made and be successful, would be minimal as cost would only be determined from the time of the unreasonable act in rejecting the second settlement offer (although I note that the Applicant indicated a possible appeal on reinstatement).

[68] Objectively viewed I am not convinced that the failure to accept the second settlement offer was an unreasonable act or omission on the part of the Respondent.

Was the failure to provide documents an unreasonable act or omission?

[69] On 6 August 2018 the Applicant made an application for an order directed to the Respondent to produce a range of documents including a report arising from an investigation (the Report) undertaken into the conduct of the Applicant.

[70] The order to produce was issued (in an amended form to that originally sought but with no change with respect to the production of the Report) on 10 August 2018. The Applicant did not seek to be heard on why the order to produce should not be issued for the more extensive list of documents as originally sought or otherwise dispute the order to produce as issued by the Commission. On 14 August 2018 the Respondent lodged an objection to the order to produce on the grounds that the Report was covered by legal professional privilege. The Respondent was advised by the Commission that, despite its objection, it was still required to produce the Report and other documents covered by the order to the Commission but that access to the documents by the Applicant would be a matter for determination by the Presiding Member.

[71] The file was allocated to Commissioner Gregory as the Presiding Member on 2 November 2018. On 8 November 2018 the documents subject to the order were provided to the Applicant, apparently by consent of the Respondent. To the extent that the Applicant, in support of the costs application, says that the Commission ‘granted access to the documents sought on 10 August 2018’ this is not an accurate reflection of what did occur. The Commission granted an order at variance from that sought on 10 August 2018 but reserved to the Presiding Member the question of access to the document, albeit on the basis of an objection of the Respondent to production. The comment that ‘access to additional documents’ was provided on the last day of hearing is reference to transcripts of interviews that apparently were not referenced in the order issued by the Commission. 22

[72] While these documents may have been sought in the application for orders made by the Applicant (and this is not fully apparent), this was not pressed by the Applicant either at the time an order amended from that sought was issued or at some later time.

[73] The issuing of an order by the Commission for production of an investigation report is seldom the end of the matter with objections based on legal professional privilege or some other grounds, in my experience, not unusual. Where legal professional privilege is claimed the resolution of production and then access to the documents may take longer. To the extent that the Applicant relies on the delay in access to the Report that matter was determined by the Commission (that it would be referred to the Presiding Member) and it would appear that the Commissioner dealt with it efficiently. It does not provide grounds for the awarding of costs because of some unreasonable act of the Respondent.

[74] To the extent the Applicant relies on the production of the documents (or offer to produce) on the last day of hearing it is not clear how or why this was an unreasonable act by the Respondent and what costs the earlier non-production caused the Applicant to incur. The Applicant chose not to pursue the documents either through the Commission or elsewhere and the non-production does not appear to have caused the proceedings to continue longer than otherwise or be inefficient in their conduct.

[75] Whilst the resolution of what documents should be produced may take some time and be fractious, the Applicant appears to have only superficially pursued the production of those documents such that the Respondent’s conduct cannot be objectively viewed as unreasonable.

The offer to produce the documents on the last day of hearing appears to be window dressing by the Respondent but is not enough to find an unreasonable act or omission such that an order for costs should be considered.

Did the Respondent’s case on compensation have ‘little prospect of success’?

[76] The Applicant makes short reference to whether it should have been ‘plainly apparent’ to the Respondent that it had little prospect of success in limiting compensation t less than that refused in the first settlement offer once the Liability Decision was issued.

[77] Whilst the Applicant did not expand on this in its submissions I take this a reference to the provisions of s.611(2)(b) of the FW Act and that it should have been reasonably apparent to the Respondent that its response (presumably to the Applicant’s compensation decision) had no reasonable prospect of success because the Applicant would receive in compensation more than was put in the first settlement offer.

[78] Without expansion by the Applicant it is difficult to deal with this assertion in its submission. Suffice it to say that the process of determining compensation or estimating what compensation the Commission may award, is fraught. There a range of decision to be made by a member which are difficult and involve a degree of judgement, including further period of employment, efforts to mitigate loss and deductions thereof and an assessment of contingencies. Even if not valid reason is found for dismissal it does not follow that the award of compensation will be the maximum available under the FW Act.

[79] For this reason I do not consider that it should have been reasonably apparent that its case on compensation had no reasonable prospect of success.

[80] I therefore do not consider this ground made out for the consideration of an award for costs.

Conclusion

[81] For the reasons given above I am not satisfied that the Respondent has identified an unreasonable act or omission of the Respondent such that an order for costs should be considered.

[82] No order for costs is therefore made and the application for costs is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR716069>

 1   [2019] FWC 6630.

 2   [2019] FWC 7192.

 3   PR713723.

 4   Fair Work Act 2009 (Cth) s.611(1).

 5   Attachment A-2 to the Applicant’s submissions.

 6   Attachment A-1 to the Applicant’s submissions.

 7   Attachment POH-2 to affidavit of Mr O’Halloran This email is not contained in the material attached to the Applicant’s submissions.

 8   Affidavit of Mr P O’Halloran, paragraph 19.

 9   Attachment A-3 to Applicant’s submissions.

 10   In accordance with the principle in Calderbank v Calderbank [1975] 3 All ER 333.

 11   Transcript 21 November 2018 PN2785.

 12   Adamczak v Alsco Pty Ltd (No 4) [2019] FCCA 7.

 13   Mifsud v Veolia Transport Sydney Pty Ltd [2012] FMCA 167.

 14   Affidavit of Mr P O’Halloran, paragraph 10.

 15   Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 at [5]-[8].

 16   See for example Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 4) [2009] FCA 803.

 17 [2012] FMCA 167.

 18   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [169].

 19   [2014] FWCFB 1175.

 20    PR968915 [2006] AIRC 521; (25 August 2006).

 21   See, for example [2019] FWC 6630 at [141]-[151].

 22   Transcript 21 November 2018 PN2793.