DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Stuckey
v
Prosegur Australia Pty Limited
(U2019/11055)

and

Prosegur Australia Pty Limited
v
Campbell Law
(U2020/3190)

COMMISSIONER PLATT

ADELAIDE, 13 JULY 2020

Application for costs pursuant to ss.400A, 401 and 611 of the Fair Work Act 2009 –– unreasonable act – vexatious – no reasonable prospects of success – costs awarded against Applicant and Legal Representative.

[1] This is an application by Prosegur Australia Pty Limited (Prosegur) seeking an order for costs against Mr Anthony Stuckey pursuant to ss.400A and 611 of the Fair Work Act 2009 (the Act), and against his legal representative, Campbell Law, pursuant to s.401 of the Act.

[2] The application is made following the dismissal of an earlier application made pursuant to s.394 of the Act by Mr Anthony Stuckey. 1 The reasons for that decision are recorded in Anthony Stuckey v Prosegur Australia Pty Limited.²

[3] Directions were issued for the filing of submissions and replies by all parties. The following documents were received:

• Form F6 Application for Costs which included details of costs incurred dated 16 March 2020

• Submissions by Prosegur in respect of Mr Stuckey dated 3 April 2020

• Submissions by Prosegur in respect of Campbell Law dated 3 April 2020

• Reply submissions by Prosegur in respect of Mr Stuckey dated 30 April 2020

• Mr Stuckey’s submissions contained in emails dated 27 and 29 April 2020 (including attachments)

• Campbell Law’s submissions dated 24 April 2020

[4] A hearing was conducted via telephone conference on 4 May 2020. Prosegur was represented by Ms Simone Caylock of counsel, Mr Stuckey represented himself and Campbell Law was represented by Mr Tim Campbell of counsel. Leave was granted pursuant to s.596(2)(a) of the Act based on complexity and efficiency.

[5] On 4 May 2020, Mr Stuckey gave the following evidence about the interaction between the substantive matter and the South Australian Employment Tribunal (SAET) underpayment of wages claim:

“MS CAYLOCK: The offer was that you withdraw your claim and Prosegur would not make a cross-application like it's making now against you. That was the offer?---Yes, but if you offered no money, how did I know what the offer was?

The offer was that if you discontinued your claim Prosegur would agree not to make an application that you pay the costs that it had incurred up to that date, which is the application it's making now?---Okay. I remember that because there was no figure attached to that whole correspondence.

Do you remember your solicitors on your behalf replied, saying the only basis that you would settle your claim is if you were paid all of your outstanding - basically the wage underpayment claim that you had in the South Australian employment tribunal?---Okay, yes, I remember that, yes.”

[6] And shortly thereafter:

“MS CAYLOCK: Yes, thank you, Commissioner. Mr Stuckey, in response to that letter you did not have your solicitors advise the company that…

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: [2020] FWC 3586
Decision Date: 13 JULY 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Anthony Stuckey initiated proceedings against Prosegur Australia Pty Limited concerning an employment dispute. The dispute primarily focused on the nature and circumstances of Stuckey's termination from his position with Prosegur. The Court was tasked with deciding whether Prosegur's actions in terminating Stuckey's employment were lawful and reasonable under the Fair Work Act 2009.

The legal issues before the Court involved whether Prosegur's conduct in terminating Stuckey's employment constituted an unreasonable act, whether the application for costs was vexatious, and whether Stuckey's application had no reasonable prospects of success. These questions necessitated an examination of the procedural fairness afforded to Stuckey, the substantive fairness of the termination, and the overall conduct of the litigation.

The Court found that Prosegur's actions in terminating Stuckey's employment were not unreasonable, and the termination was both procedurally and substantively fair. Moreover, the Court concluded that Stuckey's application for costs was vexatious and lacked reasonable prospects of success. Consequently, the Court awarded costs against Stuckey and his legal representative pursuant to sections 400A, 401, and 611 of the Fair Work Act 2009. The decision underscored the importance of fair litigation practices and the consequences of pursuing unfounded claims.

Orders