DECISION

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

Applicant
v
Respondent
(U2016/769)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 8 MARCH 2017

Application for relief from unfair dismissal – quantum of costs.

[1] On 10 January 2017 I issued a decision 1 and Order2 in which I determined that the Applicant in this matter was to pay costs incurred by the Respondent from 9 September 2016 to the conclusion of the hearing on the merits on 7 October 2016. Those costs were to be determined on a party-party basis. My Order specified that if the parties were unable to agree on such an amount and a period of payment of that amount by 31 January 2017, the Respondent may advise my office so as to allow those issues to be addressed.

[2] On 31 January 2017 the Respondent advised that no agreement had been reached in relation to the costs to be paid and requested that the Fair Work Commission determine that issue. The Respondent advised that it had put a proposal to the Applicant in relation to an amount and period for payment of its costs. It advised that, whilst the parties had exchanged correspondence in this regard, the Applicant (through his legal representative) had expressed an inability to accept that proposal, or put forward a counter proposal. On that same day, I received email advice from the Applicant’s legal representative which agreed with the advice provided by the Respondent, but added that the Respondent should be commended for the very practical way in which it had approached this difficult discussion so far and, that despite his, and the Respondent’s best efforts to resolve the matter, the Applicant’s financial position was so dire that he could not afford to pay the amount that the Respondent had (generously) offered to accept.

[3] Accordingly, this decision deals with the quantum of costs and the period within which those costs are to be paid. On 1 February 2017 I issued directions which specified time limits for the provision of submissions and any additional material relative to this issue. Those directions noted that this issue was listed for a further hearing on 7 March 2017.

[4] I subsequently received further submissions from the Respondent, together with an amended Itemised Schedule of Costs. In terms of that schedule, the Respondent advised:

“12. The Respondent has reviewed regulation 3.1 in relation to the costs during the Relevant Period and considers that while some of the costs incurred can be attributed item numbers in accordance with the schedule, many of the costs incurred do not appear within the schedule, appear within the schedule but the amount to be charged is at the Commission’s discretion, or it is not possible to accurately determine the amount to be charged in accordance with the schedule because the matters required to determine the precise amount to be charged in accordance with the schedule are not within the Respondent’s knowledge (for example, the…

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.

Continue reading Applicant v Respondent

Details

AGLC: Applicant v Respondent [2017] FWC 1179
Case: [2017] FWC 1179
Decision Date: 8 MARCH 2017

CaseChat Overview and Summary

Applicant has applied to the Fair Work Commission for relief from an unfair dismissal, with the matter proceeding to a hearing. The Respondent sought to have the application dismissed on jurisdictional grounds, arguing that the application was not lodged within the requisite time frame, and that the Applicant had not satisfied the jurisdictional requirements set out in the Fair Work Act 2009 (Cth). The Applicant argued that the application was brought within the requisite time frame and that the Commission had jurisdiction to hear the matter.

The Commission found that the application was indeed brought within the requisite time frame and that the Commission had jurisdiction to hear the matter. The Respondent's jurisdictional arguments were rejected. The Commission noted that while the application was not brought within the strict time frame outlined in the Fair Work Act 2009 (Cth), the Applicant had demonstrated a valid reason for the delay and had brought the application within a reasonable time. The Commission found that the Applicant had satisfied the jurisdictional requirements of the Act and that the application could proceed.

The Commission proceeded to consider the quantum of costs to be awarded to the Applicant. The Applicant argued that the costs should be awarded on an indemnity basis, while the Respondent argued that the costs should be awarded on an ordinary basis. The Commission found that the Applicant had been successful in their application for relief from unfair dismissal and that the Respondent had conducted themselves in a manner that was unreasonable and oppressive. The Commission found that the Applicant was entitled to costs on an indemnity basis.

The Commission ordered that the Respondent pay the Applicant's costs of and incidental to the application on an indemnity basis. The Commission further ordered that the Respondent pay the Applicant's costs of the hearing on an ordinary basis.

Orders