Annette McNeill v Toyota Motor Corporation Limited

[2020] FWC 2342

[2020] FWC 2342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Annette McNeill
v
Toyota Motor Corporation Limited
(U2019/9600)

COMMISSIONER BISSETT MELBOURNE, 13 MAY 2020

Application for an unfair dismissal remedy.

[1] Ms Annette McNeill (costs Respondent) was employed by Toyota Motor Corporation Limited (costs Applicant) until 9 August 2019 when she was dismissed from her employment. The application was subject to conciliation before a staff conciliator where it did not settle. It was subsequently listed for arbitration and directions were issued to the parties to file their respective materials.

[2] While the Form F2 Unfair dismissal application named the employer as ‘Toyota Motor Corporation Limited’, the costs Applicant refers to themselves as Toyota Motor Corporation Australia Limited (TMCA) and will be referred to as TMCA throughout this decision.

[3] Following from the matters set out below in the “background” TMCA made an application to the Commission on 16 March 2020 for an order in relation to costs it says it incurred between 13 January 2020 and 2 March 2020.

[4] The Commission issued directions in relation to the costs application that required TMCA to file and serve submissions and evidence on which it intended to rely by 27 March 2020 and Ms McNeill to file any submissions in reply by 10 April 2020. The costs application was listed for hearing by telephone on 27 April 2020.

[5] TMCA filed submissions and evidence in accordance with the directions. Ms McNeill failed to file any material. My chambers followed up Ms McNeill’s submissions but, although stating by email on 15 April 2020 that she would call chambers, she failed to file any material or make contact with the Commission. Ms McNeill was advised that if she did not provide any submissions the matter may be determined without any further input from her.

[6] On the weekend prior to the hearing (by telephone) of the costs application, Ms McNeill contacted my chambers by email and confirmed that the phone number we indicated we would contact on for the hearing was her correct phone number. She did not otherwise acknowledge any previous correspondence in relation to the costs application.

[7] Just prior to the hearing of the costs application my chambers attempted to call Ms McNeill. She did not answer the telephone. Three messages were left for her to contact chambers in relation to the hearing. She failed to do so and, as at the time of publication of this decision, has not contacted my chambers.

[8] Given her non-attendance at the hearing I arranged for transcript to be produced. I forwarded that transcript to Ms McNeill and gave her 7 days within which to file any submission she might wish to make. Ms McNeill did not make any submissions.

[9] The hearing proceeded without Ms McNeill. At the commencement of proceedings I granted TMCA permission to be represented by a lawyer.

[10] Given her failure to file any submissions or evidence rebutting that filed for TMCA, I have accepted the evidentiary material set out in the second affidavit of Mr Stuart Pill of Clayton Utz lawyers filed on 27 March 2020.

BACKGROUND

[11] The application of Ms McNeill for relief from unfair dismissal was listed before me for further conciliation on Tuesday 7 January 2020 where it again did not settle.

[12] Following that conciliation TMCA put an offer to settle to Ms McNeill. After some toing and froing a settlement was agreed. At 10.01 pm of 7 January 2020 Mr Stuart Pill, lawyer for TMCA, emailed Ms McNeill and advised that certain terms she wished to have included in the settlement were agreed. The completed terms on the which the matter settled were fully outlined in that email along with a statement that these would be reflected in a deed of release.

[13] On 9 January 2020, following a phone call and follow up emails from Mr Pill, Ms McNeill emailed Mr Pill in which she said:

Hi Stuart,

Apologies for the delayed reply, please proceed with preparation of the deed of release.

Regards

Annette

[14] On 9 January 2020 Mr Pill emailed my chambers and advised that “…the parties have reached agreement to settle the matter. A deed of release is being prepared to reflect and implement that agreement. Pursuant to the agreed settlement, a notice of discontinuance will be filed in due course…”

[15] On receipt of this correspondence a notice of listing cancelling the hearing of the unfair dismissal application was issued.

[16] Following some exchanges as to the content of the deed of release and Ms McNeill’s compliance in relation to return of a laptop, an updated deed of release was sent to Ms McNeill on 13 January 2020. That deed included the substantive agreed terms and did not alter the content of the deed other that as generally sought by Ms McNeill.

[17] From 15 January 2020 to 10 February 2020 Mr Pill and Ms Olivia Pels from TMCA attempted to contact Ms McNeill without success in relation to the return of the signed deed of release. My chambers also sought to contact Ms McNeill requesting she file a notice of discontinuance in relation to the matter.

[18] On 24 February 2020 my chambers wrote to Ms McNeill and indicated that I was considering whether I should dismiss her application for relief from unfair dismissal on my own motion and issued directions for the filing of submissions and evidence from both parties in relation to this consideration by 4.00pm Monday 2 March 2020. The basis of this correspondence was advice from TMCA (and no contrary advice from Ms McNeill) that the matter was settled.

[19] On 26 February 2020 Mr Pill again emailed Ms McNeill and indicated that she had yet to sign the deed of release, that she had not responded to any emails or telephone calls and she had not responded to correspondence from the Commission. Mr Pill sought an acknowledgement to his email and the return of the signed deed of release. That email indicated that if this did not occur and if TMCA was required to prepare materials in response to the Commission’s directions TMCA would seek costs from Ms McNeill.

[20] Not having received any response from Ms McNeill, Mr Pill, on instructions from TMCA, finalised submissions to be filed in accordance with the directions of the Commission. These submissions, he says, were substantially completed on Saturday 29 February 2020.

[21] On 2 March 2020 at 12.20pm Ms McNeill responded to Mr Pill that she “thought [she] had signed and sent already will do it now”.

[22] At 3.14pm on 2 March 2020 Ms McNeill emailed Mr Pill and the Commission and indicated she was “at a medical appointment” and that she would “not be able to lodge the form 50 by 4pm but will do so later.”

[23] At 3.55pm that day, not having received the signed deed of release, TMCA filed its submissions with the Commission in accordance with the directions issued on 24 February 2020.

[24] At 6.42pm on 2 March 2020 Ms McNeill forwarded to Mr Pill a copy of the signed deed of release and her letter of resignation from TMCA. At 11.56pm Ms McNeill filed her notice of discontinuance.

APPLICATION FOR COSTS

[25] TMCA seek costs from Ms McNeill pursuant to s.400A or the FW Act or, alternatively, under s.611.

Section 400A application

[26] Section 400A of the FW Act states:

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.

[27] TMCA submits that, in this case, I can be satisfied that Ms McNeill engaged in unreasonable acts or omissions that caused it to incur costs between 13 January 2020 and 2 March 2020. The actions of Ms McNeill relied on by TMCA include:

•  Ms McNeill’s repeated failure between 13 January 2020 and 2 March 2020 to acknowledge and/or respond to attempts by TMCA to contact her in relation to executing the deed of release;

•  Ms McNeill’s failure to acknowledge or respond to the Commission’s various attempts to contact her in relation to her unfair dismissal application;

•  Ms McNeill’s failure to sign and return the deed of release at an earlier time than 2 March 2020;

•  Ms McNeill’s failure to respond the email and phone calls of 26 and 28 February 2020 until 3.5 hours prior to the time for filing submissions.

[28] As a result of Ms McNeill’s conduct TMCA submits that it incurred costs “that were otherwise unnecessary” in preparing an outline of submissions and preparing the first affidavit of Mr Pill. 1

Section 611(2)(b) application

[29] Section 611(2)(b) of the FW Act states:

Costs

(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:

…

(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.

…

[30] In the alternative TMCA submits that it is entitled to costs incurred in relation to the unfair dismissal application between 13 January 2020 and 2 March 2020 on the basis that it should have been reasonably apparent to Ms McNeill that her application had no reasonable prospects of success in circumstances where:

•  She had entered into a binding settlement agreement although it had not yet been signed;

•  TMCA’s legal representatives had advised the Commission that a settlement agreement had been reached;

•  Upon receipt of the advice from TMCA the Commission invited Ms McNeill to file a notice of discontinuance; and

•  The Commission again sought a notice of discontinuance of on 29 January 2020.

CONSIDERATION

[31] The costs application by TMCA relates to Ms McNeill’s conduct in relation to her application for relief from unfair dismissal following the conciliation on 7 January 2020. The costs application does not relate to any conduct of Ms McNeill after 2 March 2020, that is, in relation to the costs application itself.

[32] Ms McNeill’s conduct in the unfair dismissal proceedings from the 7 January 2020 conciliation has been inexplicable. She participated in conciliation, received an offer to settle her application from TMCA, sought and gained an improvements in that offer, negotiated amendments to the proposed deed of release and then did no more.

[33] Not only did she do no more after 13 January 2020 when the final deed of release was sent to her, she ignored at least 8 attempts by TMCA and the Commission to contact her in relation to signing the deed of release and the finalisation of her matter before the Commission, including:

•  15 January 2020 email from Mr Pill;

•  20 January 2020 email from Mr Pill;

•  22 January 2020 telephone call from Mr Pill;

•  On or about 28 January 2020 telephone call from Ms Pels of TMCA;

•  29 January 2020 email from the Commission;

•  10 February 2020 email from the Commission seeking update;

•  26 February 2020 email from Mr Pill; and

•  28 February 2020 telephone call from Mr Pill.

[34] In addition Ms McNeill failed to comply with a direction from the Commission that she file submissions and evidence in relation to my consideration as to whether I should dismiss her application.

[35] What was being asked of Ms McNeill after 13 January 2020 was not complex. She had agreed the terms of settlement with TMCA, she had seen the terms of the deed well before 13 January 2020 and had sought and gained some changes. Clearly by 13 January 2020 she had read the terms.

[36] Ms McNeill has provided no reason as to her failure to respond to any of the requests made of her to sign and return the deed of release or update the Commission on the matter. The requests made of her were respectful, polite and were not framed in any way to suggest any undue pressure on her to comply without being given an opportunity to consider what was being asked of her. At no time did she reply and suggest she needed more time.

[37] I am satisfied that Ms McNeill’s actions in this respect were unreasonable and inexplicable.

[38] By her actions over a 7 week period Ms McNeill put TMCA in a position where it was required to file with the Commission submissions as to why it considered I should dismiss her unfair dismissal application. It was, in my view, reasonable that TMCA not seek an adjournment of the filing requirements of 2 March 2020 given the abject failure of Ms McNeill to respond to any correspondence. Ms McNeill’s email of 2 March 2020 that she “thought she had signed and sent” the deed of release is not believable, particularly in circumstances where there was a payment due to her contingent on signing. She had no excuse for not having completed the deed. In any event her email was too little and too late to stop TMCA incurring costs.

[39] Ms McNeill was on notice by email from Mr Pill on 26 February 2020 that, should she not sign and return he deed of release TMCA “would have no choice but to seek costs” in relation to filing submissions on 2 March 2020.

[40] Ms McNeill has also failed to engage in the costs application before the Commission. As outlined above she has not filed submissions, not responded to correspondence from the Commission, not done what she said she would do (call the Commission) – in fact she engaged in exactly the conduct of that which TMCA complain – such that, even if she has a reason for not having responded to TMCA or the Commission between 13 January 2020 and 2 March 2020, she has steadfastly refused to put anything before the Commission.

[41] In these circumstances I am satisfied that Ms McNeill engaged in unreasonable acts that caused TMCA to incur costs.

Should I award costs?

[42] Even though I have found that Ms McNeill engaged in unreasonable acts it does not automatically follow that I should award costs.

[43] TMCA submits that the circumstances of this case including the total disregard Ms McNeill has had of the Commission and TMCA’s attempts to finalise the matter are those envisaged by the legislation and warrant the making of a costs order.

[44] Further, TMCA says that the costs it seeks are less than was awarded in the settlement with Ms McNeill such that it should not create great hardship to her to pay the amount sought.

The Fair Work Amendment Bill 2012 Explanatory Memorandum says of s.400A of the FW Act:

169. …the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

170.     The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

171.     However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

[45] In this case I am satisfied that Ms McNeill’s conduct in refusing to engage with TMCA in the finalisation of the deed of release that was in the terms sought by her was clearly unreasonable. Further, I am satisfied that Ms McNeill’s failure to respond to correspondence from the Commission that could have brought proceedings to an end was clearly unreasonable. Ms McNeill’s actions directly caused TMCA to have to file submissions in accordance with the directions issued by my chambers. Ms McNeill has not sought to defend the claims in relation to her conduct although has been provided with multiple opportunities to do so.

[46] Ms McNeill could have finalised this matter on 13 January 2020 or shortly thereafter when she received the terms of settlement in writing in the form she sought by signing and returning the settlement agreement. She consistently failed to do so and failed to reply to any contact by TMCA or the Commission. As I said above, her conduct in this regard is inexplicable.

[47] I am satisfied in this case that the conduct of Ms McNeill is such that costs should be awarded against her.

[48] An order 2 for costs of the amount sought by TMCA of $5,290.64 will be issued with this decision.

COMMISSIONER

Appearances:

Applicant did not appear.

S. Pill of Clayton Utz for the Respondent.

Hearing details:

2020.
Melbourne by telephone.
April 27.

Printed by authority of the Commonwealth Government Printer

<PR718813>

 1   The first affidavit of Mr Pill was filed in relation to the directions of the Commission of 26 February 2020. That affidavit is annexure TMP-20 to the second affidavit of Mr Pill filed in the costs application.

 2   PR718814.