Anthony Dunne v RePipe Pty Ltd

[2015] FWC 5293

[2015] FWC 5293 [Note: An appeal pursuant to s.604 (C2015/5877) was lodged against this decision - refer to Full Bench decision dated 6 October 2015 [[2015] FWCFB 6787] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Dunne
v
RePipe Pty Ltd
(U2014/1953)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 11 AUGUST 2015

Application for relief from unfair dismissal – costs application by RePipe Pty Ltd – dismissed.

[1] This matter involves a costs application made by Repipe Pty Ltd (Repipe) following a decision 1 issued on 21 May 2015. In that decision, I dismissed an unfair dismissal application made by Mr Dunne.

[2] Mr Dunne’s application was lodged on 2 June 2014. On 21 July 2014 Mr Dunne, through his then representative, Mr Kelemen, objected to consideration of the application by Commissioner Williams on the basis that Repipe was represented by a lawyer with the same surname. In that matter Mr Dunne was represented by Mr Kelemen, as agent. Commissioner Williams rejected that argument in a decision [2014] FWC 7018 issued on 8 October 2014. Notwithstanding this decision, the application was referred to me on 8 April 2015 and was the subject of a hearing, in Perth on 15 May 2015. In that hearing Mr Dunne represented himself and Repipe was represented by Mr Howlett, of counsel.

[3] Repipe has sought costs pursuant to ss.400A and 611 of the Fair Work Act 2009 (the FW Act). These sections 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.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[4] Both these sections require that, before the Fair Work Commission (FWC) can exercise the discretion to award costs, it must first determine whether the jurisdiction to do so is enlivened by a finding that Mr Dunne’s behaviour was, in terms of s.400A an unreasonable act or omission. In terms of s.611, the FWC must be satisfied that Mr Dunne’s making of the application was vexatious or without reasonable cause or that it should have been apparent to him that it had no reasonable prospect of success. It is only consequent on one or more findings of that nature that the FWC can then determine whether an award of costs is appropriate in all of the circumstances.

[5] In terms of s.611 I have applied the approach adopted in a recent decision in Jeffrey v IBM Australia Limited 2where the Full Bench stated:

“[23] In Keep v Performance Automobiles Pty Ltd, (Keep) the Full Bench summarised relevant principles as follows:

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing ([2014] FWCFB 810) (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed.’””

[6] And further, in terms of s.611(2)(b):

“[26] In Keep, the Full Bench summarised the relevant principles this way:

“[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.

[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’. [Wright v Australian Customs Service, PR926115, 23 December 2002] In Deane v Paper Australia Pty Ltd (PR932454, 6 June 2003) a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;

“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”. (Ibid at [8], also see Baker v Salva Resources Pty Ltd [2011] FWAFB 4014 at [10]; and Metecno Pty Ltd T/A Bondor v Cameron [2014] FWCFB 2128 at [16])”

[27] The extract from Baker v Salva Resources Pty Ltd referred to above is as follows:

“[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis rather than a subjective test; and



• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable.””

[7] The Repipe application is made on the grounds that Mr Dunne’s unreasonable acts or omissions included:

● his claims relating to payment of amounts he asserts he was owed
● his claim for four weeks pay in lieu of notice
● his dishonest assertions about the circumstances of his dismissal
● his failure to discontinue the application on receipt of the employer’s response to the application, or, the employer’s submissions and evidence, or when he was given the chance to do so at the hearing on15 May 2015
● his pursuit of an “alleged bias application” against Williams C
● his continued pursuit of the application after receiving advice from Williams C dated 21 July 2014 which referred to the possibility of costs
● his failure to disclose, until the hearing, that he obtained alternative employment a week after the termination of his employment
● his actions in reporting allegations of safety failings to the relevant authority, and his failure to facilitate Repipe’s access to the mobile phone it had provided to him as an employee.

[8] I have considered the costs application on the basis of written submissions provided by both parties together with submissions made in a hearing on 20 July 2015. In that hearing, Repipe was represented by Mr Howlett, of counsel, pursuant to a grant of permission made under s.596(2)(a). In concluding that Mr Howlett’s involvement in the matter would enable it to be dealt with more efficiently, I had particular regard to his un-opposed representation of Repipe in the determination of Mr Dunne’s application. Mr Dunne represented himself. Additionally, I have noted that Mr Dunne has provided further written submissions in response to the position put by Repipe.

[9] Ms Outram gave evidence in support of the costs application. This evidence was substantially directed at rebutting the additional evidence of Mr Dunne which returned, in part, to addressing the merits of the application. Mr Dunne’s evidence went to refuting various of the reasons for the termination of his employment. Whilst I note that Ms Dunne also gave evidence, I have not regarded this as critical to the costs application.

[10] The Repipe position was that Mr Dunne’s actions caused it substantial and unnecessary additional costs in terms of actions before and after he made the application. Repipe claimed a total award of costs amounting to $33,286.13. Those claimed costs included costs for the costs application.

[11] I have considered each of the Repipe grounds for the application on the material before me.

[12] I have noted that both parties referred to another unfair dismissal application made against Repipe by a Mr Sodden at around the same time as Mr Dunne made his application. At one stage it seems that both Mr Dunne and Mr Sodden were represented by the same representative. Because both parties devoted a substantial degree of attention on the allegations relating to Mr Dunne’s reporting of workplace safety issues and his alleged unreasonable behaviour relative to unlocking his mobile phone, I have dealt with those issues initially. Simply put, I am not persuaded that the allegations of unreasonable behaviour are such so as to represent a basis to enable consideration of an award of costs. The evidence before me does not enable a definitive conclusion about whether Mr Dunne’s actions were unreasonable or vexatious.

[13] Mr Dunne was represented by Mr Kelemen in the application to have Commissioner Williams disqualify himself from further considering the matter because he shared the same surname as the Repipe lawyer Ms Williams. There is no information that establishes that this action was initiated by Mr Dunne or whether that action was encouraged or initiated by Mr Kelemen. Accordingly, I am not prepared to conclude that Mr Dunne’s actions in pursuing that motion were unreasonable.

[14] Certain of the remaining grounds are more difficult to assess. Mr Dunne’s evidence to me in the hearing was that he initiated the application without representation and only subsequently engaged Mr Kelemen to represent him. Mr Dunne advised he did this in order to recover payment for the notice period he considered due to him. He stated:

“SDP O’Callaghan: Mr Dunne, I have one issue I wish to raise with you.

Mr Dunne: Yes.

SDP O’Callaghan: You lodged your application on the 2^nd of June.

Mr Dunne: Yes.

SDP O’Callaghan: Now, your employment was terminated on the 19^th of May.

Mr Dunne: That’s correct.

SDP O’Callaghan: Now, if I recall it correctly you gained another job about a week later.

Mr Dunne: That’s correct Your Honour.

SDP O’Callaghan: So tell me in your own words, why did you lodge the application?

Mr Dunne: I lodged the application after investigation with the Ombudsman when they informed me and I gained information from the Fair Work website that I was entitled to four weeks leave, or severance pay, whatever you want to call it, right, and I believe that the manner which I was dismissed was harsh and unfair because of Mr Garrick Soden, he was given a full written warning, he had a hearing which he was allowed to record and respond, which I wasn’t, so that gave me further support that there was a discrimination within the process within the company and I was harshly dismissed, right, I also at a personal level, feel that my reputation has been tarnished because I’ve been dismissed for a number of reasons which are untrue, right, I lodged my application to clear my name and receive my four weeks’ notice, that is the only reason I did it. You know, hindsight is a wonderful thing.” 3

[15] I have concluded that Mr Dunne considered that he thought the termination of his employment was unfair and that it tarnished his name such that he sought to clear his reputation. In these respects I consider that his application cannot be regarded as unreasonably made or pursued given his concerns about the manner of his dismissal. I acknowledge that because he found employment within one week, his application was of dubious value. Whilst Mr Dunne pursued an amount relative to underpayments he asserted were due to him, I consider that this aspect of his claim was an understandable and not unreasonable action as it related to his sense of wrongdoing. Whilst Mr Dunne asserted that he had not been paid his entitlements on termination of his employment, I have also noted that there was no disagreement between the parties that he has dyslexia and that Repipe had acknowledged this in the manner in which it required him to record his work. I have taken this into account in assessing his appreciation of what payments were made to him.

[16] In my decision of 27 May 2015 I found that the termination of Mr Dunne’s dismissal met the requirements of the Small Business Fair Dismissal Code. Because that Code provides for an abbreviated approach to the consideration of an unfair dismissal application, I am not able to conclude that this finding leads to a conclusion that Mr Dunne’s pursuit of the application therefore met the jurisdictional requirements of ss.400A or 611. In that decision I also found, in the alternative, that the termination of Mr Dunne’s employment was not unfair having had regard to s.387 of the FW Act. Had it not been for my findings relating to procedural deficiencies on the part of Repipe, I may well have concluded that Mr Dunne’s pursuit of the unfair dismissal application was vexatious and/or an unreasonable act. However, those procedural deficiencies meant that he had reasonable grounds on which to found reservations about his dismissal. It is significant that I note that an order for costs is not an automatic consequence of the dismissal of an application. My conclusion in this respect does not detract from my findings that Mr Dunne was not honest. However, my conclusion is influenced by reservations about the termination of employment process followed by Repipe.

[17] The final issue relevant to the costs application goes to the extent to which Mr Dunne waited until the hearing of the matter to disclose that he had obtained alternative employment within a week of the termination of his employment and did not take steps to settle the matter when he was given the opportunity to do so. In this respect I have noted that the application was heard nearly 12 months after the application was lodged. This delay reflected the application of alleged bias and programming difficulties. I have considered the extent to which this long delay did not assist in the timely resolution of the matter or in facilitating discussions between the parties. There is simply no information before me that enables any conclusion about what negotiations occurred between the parties. At the commencement of the proceedings on 15 May 2015 I invited the parties to discuss a resolution but I am not aware of the positions put in these respects. Information in this respect may have led to a conclusion that Mr Dunne’s actions were unreasonable but, absent that material, I am not positively persuaded that this is so.

[18] Having considered the overall circumstances of the termination of Mr Dunne’s dismissal, I am not persuaded, on balance, that his initiation of the application, or his continued pursuit of it, should be regarded as unreasonable acts. The application was not obviously untenable or manifestly groundless. My reservations about the termination of employment process applied to him must be weighed against my findings about his untruthfulness.

[19] Accordingly, I am not satisfied that the prerequisite requirements for consideration of an order for costs have been made out. In any event, the circumstances of this matter mitigate against the making of such an order. The Repipe costs application is dismissed on this basis.

Appearances (by telephone):

A Dunne on his own behalf.

D Howlett counsel for RePipe Pty Ltd.

Hearing details:

2015.

Perth:

July 20.

 1   [2015] FWC 3390

 2   [2015] FWCFB 5226

 3   Transcript Sound Recording, 20/7/2015, 3:40:01 pm – 3:41:34 pm

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