Australian Concert and Entertainment Security Pty Ltd Trading as ACES Group v Michael Alkan

[2025] FWC 1696

[2025] FWC 1696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.401 – Costs orders against lawyers and paid agents

Australian Concert And Entertainment Security Pty Ltd Trading AS ACES Group

v

Michael Alkan

(U2024/5756)

DEPUTY PRESIDENT SLEVIN SYDNEY, 19 JUNE 2025

Application for an unfair dismissal remedy - Costs

1. This decision deals with an application by Australian Concert and Entertainment Security Pty Ltd (ACES) under s.401 of the Fair Work Act2009 for an order for costs against Mr Michael Alkan, the principal of HR Experts. ACES asserts that Mr Alkan, who represented Mr Sabir Ejaz in an application for an unfair dismissal remedy, caused it to incur costs due to Mr Alkan’s unreasonable acts or omissions in connection with the conduct or continuation of the matter.

1. For the reasons that follow, I find that while representing Mr Ejaz Mr Alkan caused ACES to incur costs because of his unreasonable acts or omissions in connection with the conduct or continuation of Mr Ejaz’s unfair dismissal claim and propose to order Mr Alkan to pay ACES $28,952.20 on account of those costs. Mr Alkan will be given an opportunity to make submissions on the quantum of the costs order.

Background

The application

1. ACES application for costs was the subject of a hearing on 10 February 2025. ACES relied on a witness statement of Ms Nazli Hocaoglu, ACE’s Legal Officer. Mr Alkan relied on his own witness statement giving his response to the material filed by ACES. The witness statements annexed contemporaneous correspondence and other documents. Mr Alkan was cross examined. During the hearing Mr Alkan provided a copy of his telephone records which show the times and dates he spoke with Mr Ejaz. Mr Alkan’s evidence was that his communications with Mr Ejaz were primarily by telephone given that English was not Mr Ejaz’s first language. The facts associated with the application are largely uncontested. Differing opinions were expressed as to how those facts should be regarded. The following background is derived from those documents.

1. Mr Sabir Ejaz was dismissed from his employment as a security guard with ACES on 30 April 2024. The dismissal followed an incident at Royal Prince Alfred Hospital (RPA) where Mr Ejaz allegedly disobeyed the direction of the RPA Security Supervisor and pushed a police officer.

1. Mr Alkan’s phone records show phone calls with Mr Ejaz on 9 May 2024, 13 May 2024 and 21 May 2024.

1. On 21 May 2024 an application was lodged on Mr Ejaz’s behalf seeking an unfair dismissal pursuant to s. 394 of the Fair Work Act 2009 (FW Act). The form indicated that Mr Ejaz was represented by a paid agent, HR Experts. The application was opposed by ACES Group. Mr Alkan is the principal of HR Experts.

1. On 27 May 2024 a notice of listing was issued by the Commission for a conciliation conference before a Fair Work Commission conciliator at 9.15 am on Monday 24 June 2024. The notice included the following advice to the parties:

Adjournment requests

Adjournment requests must be made in writing. We only grant adjournment requests if there are substantial grounds. For example, because of illness or serious injury. You can read the reasons we may agree to adjournment on our website.

1. The notice provided a hyperlink to the following information on the Commission’s website:

19.An adjournment request may be granted where the request is substantiated by documentary evidence. Examples where a request may be granted include:

owhere illness of the applicant or a significant person in the respondent’s business or a witness would prevent them from attending a proceeding. A medical certificate must be provided by the requesting party to substantiate the request

ounavailability of a representative that started acting for a party before the application was listed for hearing

odeath or serious injury of a family member of an applicant, a significant person in the respondent’s business or a witness, or

owhere the applicant, a significant person in the respondent’s business, a witness or a representative will be interstate or overseas and the travel was booked before the application was listed for hearing. The Commission may ask for proof that the booking was made prior to the matter being listed for hearing.

20.The other party will be asked to comment on the adjournment request prior to a decision being made by the Commission.

The first settlement offer

1. Mr Alkan’s phone records show that Mr Alkan spoke to Mr Ejaz for 21 Minutes on 3 June 2024 at 1.21 pm.

1. At 2.02 pm on 3 June 2024 Mr Alkan sent an email to ACES in the following terms:

As you are aware, the Applicant in this matter is represented and the Respondent is assisted by yourself a HR professional who no doubt has access to external specialist legal representation or advice as needed. Given these circumstances, we reasonably form the view that if a settlement cannot be reached by the parties directly then it is unlikely a conciliation will be of any utility.

Therefore, it is our intention to bypass the voluntary conciliation conference scheduled for 24 June 2024 in the absence of a settlement beforehand.
For the reasons stated within the unfair dismissal application, we say the Respondent ought to have concerns with regard to defending this matter. Naturally, I trust we may have a difference of opinion.

Irrespective of the above, we acknowledge and recognise the benefits of settling these matters.

With that said, I am instructed to put forward a settlement offer on the following terms:

(1) The parties mutually agree to release, each from the other, all claims relating to the
Applicant’s employment and/or termination including, but not limited to, the unfair dismissal
proceedings save for workers compensation, workers injury damage and superannuation claims

(2) Both parties agree not to disparage the other party;

(3) Both parties mutually covenant and agree not to divulge to any person or body any
information regarding this matter or its resolution;

(4) The Respondent will provide to the Applicant a statement of service referencing resignation
as the reason for the employment separation with the Respondent;

(5) The Respondent will pay to the Applicant an amount equivalent to 20 weeks’ pay plus prorate long service leave of 6 weeks which will be apportioned as follows:

(a) An amount (inclusive of GST) payable to HR Experts for professional costs incurred by the  Applicant; and
(b) The remaining amount (taxed as an ETP) payable to the Applicant.

(6) Payment will be made to the Applicant within seven (7) days of the deed of release being

executed by the Applicant.

(7) The Applicant will file or lodge a notice of discontinuance within seven (7) days of all payments being received. Lastly, I confirm HR Experts will provide the Respondent an invoice addressed to the Applicant or Respondent in connection with point 5(a) alongside the executed deed of release for payment by the Respondent within seven (7) days of receipt. This offer is made for the purpose of seeking an early resolution and to avoid the cost and inconvenience of a litigation.

Our client reserves the right to produce this offer to the court, tribunal, commission and or other in support of an application for an order against you to pay for its costs of the proceedings.

Failure to accept will result in our client pursuing the Respondent, without further notice to you. ln event, our client will seek costs from the Respondent on the grounds his offer is a reasonable one, and it would be unreasonable for Respondent to refuse it.

This offer remains open until 2:00pm on Wednesday, 12 June 2024 after which it will close and cannot be accepted. Before time you can notify your acceptance in writing addressed to Michael Alkan (undersigned). If you wish to discuss any issues arising from the above, or otherwise in relation to this matter, please contact the writer on [phone] 0415978030 or via email: [email protected]. We look forward to your response.

1. Mr Alkan said that he sent this email on instructions from Mr Ejaz and provided an email from Mr Ejaz. The email provided is dated 3 June 2024 and was sent at 11.30 pm that included the following:

Please include the following in the settlement offer.
1. As discussed minimum 20 weeks compo.
2. As discussed minimum 6 weeks L.S.
3. Reinstate job.

4. Average pay past 6 years need to workout

If above not aggreed then I will go for a full hearing process. No negotiations. I believe I did nothing wrong and it was harsh dismissal without looking into the facts.

1. There were no further telephone conversations between Mr Ejaz and Mr Alkan in the afternoon of 3 June 2024. I note that there are significant differences between the settlement offer made at 2.02 pm in the email sent to ACES and the email containing the instructions sent at 11.30 pm. The most significant being Mr Ejaz’s instruction that any offer seek his reinstatement.

1. The email went on to a make an offer of settlement that required, among other things, ACES to pay Mr Ejaz an amount equivalent to 26 weeks’ pay in compensation which would be apportioned into a payment to HR Experts for professional costs and the remaining amount to Mr Ejaz less applicable tax.

1. On June 4 2024, ACES responded to Mr Alkan in the following terms:

ACES Group rejects the offer made below in its entirety. We note that we are prepared to participate in the conciliation listed for 24 June 2024.

1. On 6 June 2024 Mr Alkan responded as follows:

Thank you for your below email.

We note, within your below email you state the Respondent is prepared to participate in conciliation. Given the Respondent’s commitment to conciliate, we welcome and invite the Respondent to put forward a counter settlement offer. In the absence of a counter settlement offer by 12 June 2024, my client will consider the actions of the Respondent as contradictory to their preparedness to engage in conciliation and as a result we will bypass the conciliation in line with my email dated 3 June 2024. At which point my client will begin preparing his formal evidence. As you aware, the onus is on the Respondent to prove to the Commission’s satisfaction that they had a valid and sound reason for the Applicant’s termination on the evidence before the Commission. At this point in time, we have not been provided with any evidence which would be of concern to my client and the strength of his case.

We look forward to your reply and hope that the parties can resolve this matter prior to the conciliation listed for 24 June 2024.

‘Bypassing’ conciliation

1. Mr Alkan’s phone records show that he spoke with Mr Ejaz for 18 Minutes on 18 June 2024 at 11.26 am. Mr Alkan said that he was given instructions on that day to not attend the conciliation that was scheduled for 24 June 2024.

1. It was not until 21 June 2024, the Friday before the conference set down for 24 June 2024 that Mr Ackland attempted to send an email to the Commission and to the Respondent on Friday 21 June 2024 at 12.32 pm. It was in the following terms:

Dear FWC (UDT),

I advise that the parties have engaged in early communication regarding this matter, the Applicant has formed the view that this matter is unlikely to settle at the conciliation conference scheduled for 24 June 2024 as a result of our communication thus far.

The Applicant has advised that he does not wish to participate in the voluntary conciliation process and requests that the matter proceed to the arbitration process.

Note the Respondent has been copied into this email correspondence.

Kind Regards

Michael Alkan | Principal Consultant

1. The email was not received by ACES, nor was it received in the Commission. Mr Alkan accepts that the email was not received.

1. On Sunday 23 June 2024, Mr Alkan sent an email to Mr Ejaz in the following terms:

Dear Sabir,

Please see below email I sent to the Commission on Friday at about midday. Ordinarily,
I would have received a reply from the Commission on the same day advising that the conciliation has been effectively bypassed. It appears the Commission has not had an opportunity to review my email on Friday, therefore, if you receive a call tomorrow at about 9.15am it is best you ignore that call. The Commission will contact me and I will advise them of the situation accordingly.

Thanks Michael

[20]      The conciliation had not been vacated. At 9:00am on 24 June 2024 Ms Hocaoglu joined the scheduled conciliation conference through Microsoft Teams. The Commission opened the Teams meeting at approximately 9:15am. Neither Mr Alkan nor Mr Ejaz attended. Mr Alkan says he spoke to someone at the Commission around 9.00 am and was told that his email of 21 June 2024 had not been received and the conciliation had not been vacated. The person he spoke to was not the conciliator. He resent the email to the Commission and ACES at 9.06 am. That was his explanation for not attending the conciliation.

Preparation for hearing

1. Mr Alkan called Ms Hocaoglu on 3 July 2024 when he rang to discuss Mr Ejaz’s case. In that conversation Mr Alkan proposed a timetable for hearing and discussed the witnesses to be called. As the incident that led to the dismissal involved a police officer and the incident occurred in a hospital, Mr Alkan also referred to the need for him to seek orders to obtain police bodycam and CCTV footage.

1. On 4 July 2024 Prandium Legal filed in the proceedings a notice that it was acting for ACES and that it would seek permission for Prandium legal to represent it in all future conferences and hearings.

2. A directions hearing was held on 8 July 2024 and directions issued for the filing of material in Mr Ejaz’s matter and the hearing was set down for 8 August 2024.

1. On 9 July 2024 Mr Alkan provided Mr Ejaz with a number of documents, including a witness statement, submissions and other documents seeking approval for filing in the Commission.

2. Mr Ejaz responded to the email with suggestions for changes to the documents. Mr Alkan spoke with Mr Ejaz on 10 July 2024 at 11.19 am for 32 minutes. The documents were filed on 11 July 2024.

ACES settlement offer

1. Also on 10 July 2024, at 5.15 pm, Prandium wrote to Mr Alkan on behalf of ACES. The correspondence read:

   Dear Mr Alkan

   U2024/5756 Ejaz v Australian Concert and Entertainment Security Pty Ltd T/A ACES Group

   1. We refer to the abovementioned proceeding. As you are aware, we act for Australian Concert
   and Entertainment Security Pty Ltd T/A ACES Group (our client).

   2. It is evident from the F2 and F3 forms filed that your client’s application for unfair dismissal has no reasonable prospects of success. Our client had a lawful reason to terminate your client’s
   employment due to his conduct, and his termination would not be considered harsh, unjust or
   unreasonable. Your client’s claim is therefore doomed to fail. Nonetheless, in an attempt to avoid
   incurring additional costs, we are instructed that our client is willing to resolve the proceedings
   on the following terms (Offer):

   a. Your client is to discontinue his application;
   b. Each party is to bear its own costs;
   c. The Offer is in settlement of the whole of Your client’s unfair dismissal claim against our
   client; and
   d. The Offer is made without prejudice save as to costs, and on a strictly without admissions basis.

   3. The Offer remains open for acceptance by return correspondence until 5pm, 12 July 2024 after which it will lapse.

4. The Offer is made in accordance with the principles enunciated in Calderbank v Calderbank [1975] 3 All ER 333. If your client does not accept this offer and our client obtains a more favourable result in the proceedings, our client will rely on this letter in an application that your

client pay our client’s costs of the proceedings as provided for in section 611 of the Fair Work Act 2009 (CTH).

1. There is no record of Mr Alkan forwarding the email which contained the offer to Mr Ejaz. An order was made for Mr Alkan to provide any such email; none was provided. Mr Alkan was questioned about whether he forwarded the email. He could not recall if he did provide it to Mr Ejaz. I find that he did not.

1. On 11 July 2024 Mr Alkan spoke with Mr Ejaz at 11.09 am for 3 minutes. At 11.15 am Mr Alkan responded to the offer as follows:

My client is outraged by the Respondent’s letter and settlement offer and frankly speaking I share my client’s outrage.

I address your letter dated 10 July 2024 in bullet point form below:

·the Fair Work Act is a no cost jurisdiction with minimal exceptions;

·statistically about 90% of cost applications are rejected by the Commission;

·costs cannot be awarded in circumstances where (at the time) the Commission has not granted permission represent;

·it is unclear whether granted limited permission to represent, that being for the day of the directions hearing only or for the entirety of the claim;

·the Respondent has not put forward any reasonable settlement offer which the Applicant has unreasonably rejected (despite this being a no cost jurisdiction);

·the Applicant has more than reasonable prospects of success, noting the onus is on the Respondent to establish that the misconduct actually occurred, that said, Respondent has not furnished the Applicant with any evidence which would be a cause of concern to the strength of my client’s claim; and

·my client relies on the material filed today (11 July 2024).

I am instructed to reject the Respondent’s settlement offer dated 10 July 2024 and further instructed to repeat my client’s settlement offer dated 3 June 2024 (see attached), this settlement offer remains open for acceptance until 16 July 2024 COB. Please do reach out to me should you see utility in holding a brief without prejudice conversation between us (the representatives) in an attempt to resolve this matter before the parties become further invested.

Kind Regards
Michael Alkan | Principal P: (02) M: F: (02) E: [email protected]

Events leading up to hearing

1. ACES was due to file its material in response on 25 July 2024. The mother of one of ACES witnesses died that morning. ACES wrote to Mr Alkan seeking consent to an extension of time for the filing of the person’s witness statement. Mr Alkan responded ‘we’ are unable to consent to an extension. It is not clear who he was referring to. There was no evidence of any communication with Mr Ejaz about the request. Later that day Prandium filed an outline of submissions on behalf of ACES along with a notice to produce directed to the NSW Police and a notice to attend directed at an employee of Prince Alfred Hospital. It also sought an extension for the filing of the witness statement mentioned earlier. The extension was granted, and the Directions were amended to allow Mr Ejaz to file material in reply to the statement.

1. On 26 July 2024, Mr Alkan filed a series of applications for orders on behalf of Mr Ejaz including that the Respondent provide contact details for persons who witnessed the incident leading to Mr Ejaz’s dismissal, that RPA provide records and CCTV footage of the incident that led to the dismissal, and for the police to provide records and the bodycam footage of the incident.

2. On 26 July 2024 Mr Alkan sent a settlement offer to Prandium Lawyers indicating Mr Ejaz was willing to settle the matter based on a payment of 16 weeks’ pay.

1. The matter was listed for case management hearing on 31 July 2024. In the days following the hearing a number of notices to attend and notices to produce were issued. They required attendance at the hearing of three persons and the production of material. Orders were issued at the request of the respondent for two persons to attend, a police officer and an employee of  RPA, and an order was issued on behalf of the applicant that another person attend, another employee of RPA. An order was also issued at the applicant’s request requiring NSW Police to provide a copy of the body camera footage of the police officer who attended the incident at RPA which led to Mr Ejaz’s dismissal.

1. On 31 July 2024 ACES, in an email at 11.48 am, rejected Mr Ejaz’s offer to settle sent on 26 July 2024 and offered to settle on the basis that the matter be discontinued, ACES provide Mr Ejaz a statement of service and the parties pay their own costs. The offer was rejected in an email on the same day at 12.20 pm. Mr Alkan was on the phone with Mr Ejaz at the time the offer was received and took instructions to reject it during that call.

2. The notice to NSW Police resulted in several exchanges involving NSW Police, the parties, and the Commission. In that correspondence NSW Police raised concerned about the confidentiality of the bodycam footage and the logistics of providing the footage. The order issued on 5 August 2024. It required the footage to be produced to the Commission the day before the hearing. Arrangements were put in place for the parties to have access to the material prior to the hearing commencing at 10.00 am on 8 August 2024.

1. On 5 August 2024, the day the order to NSW Police issued, Mr Alkan spoke to Mr Ejaz 3 times; at 12.58 pm for 22 minutes, at 2.36 pm for 12 minutes, and 4.04 pm for 32 minutes. In an email at 2.53 pm Mr Alkan sent an email to the Commission requesting that the hearing be adjourned ostensibly to enable more time for the parties to consider the bodycam footage. The request was denied.

1. Mr Alkan had further phone conversations with Mr Ejaz on 6 August 2024: one at 1.59 pm for 8 minutes and another at 2.36 pm for 16 minutes.

1. On 7 August 2024 Mr Alkan spoke to Mr Ejaz at 9.07 am for 25 minutes.

2. Mr Alkan was also in contact with the NSW Police on 6 and 7 August 2024 about the production of the bodycam video footage. In that exchange  NSW Police pressed the need for the footage to be kept confidential and only be used in the proceedings. In an email at 10.15 on 7 August 2024 Mr Alkan stressed the importance of the footage to Mr Ejaz’s case describing it as crucial.

1. An adjournment request was made by Mr Alkan at 2.11 pm on 7 August 2024. It was in the following terms:

   Dear Associate,

   Further to my emails yesterday regarding the body camera footage, please find below email correspondence from the NSW Police, which now confirms their intention to restrict the use of the body camera footage to the day of the hearing.

   For the reasons previously stated, as well as those outlined in my email below, the Applicant respectfully requests an adjournment of the hearing scheduled for tomorrow. Granting an adjournment at this time will allow both parties to provide sufficient notice to the various witnesses.

   Thank you for your consideration.

   Kind Regards

   Michael Alkan | Principal Consultant

1. In an email to NSW Police, at 3.21 pm on 7 August 2024, Mr Alkan asked whether the bodycam footage had been produced to the Commission and requested that the NSW Police upload the footage to a secure cloud server to allow remote access. The NSW Police declined Mr Alkan’s request.

1. Mr Alkan was informed by email at 3.44 pm that his request for an adjournment was refused. The email also informed the parties that the NSW Police had provided a DVD and Event Report in response to the order to produce, and that the material would be available for the parties to inspect prior to the hearing the following morning.

1. Mr Alkan spoke to Mr Ejaz at 4.15 pm on 7 August 2024 for an hour and 12 minutes, and again at 5.57 pm for 37 minutes.

Discontinuing the application

1. At 6.39 pm Mr Ejaz sent an email to Mr Alkan in the following terms:

Hi Michael,

As discussed please discontinue the claim.

Thanks
Kind Regards
Sabir Ejaz.

1. At 7.23 pm Mr Alkan responded to Mr Ejaz in an email which read:

Dear Sabir,

Thank you for your email.

I confirm that we discussed the following points:

• The Police email states: “the videos capture a person (not the applicant) experiencing a mental health crisis.” You have reasonably interpreted this to mean that the body camera footage tomorrow will not be beneficial or detrimental to your case. This is further reinforced by the fact that you mentioned when you approached the Police Officer to offer assistance, the officer was kneeling down and restraining the patient. You believe that the Police body camera footage will at best show the bottom half of your body as you were standing at the time of approach.
• Based on Mr. Cassar’s incident report, we have reasonably assumed that Mr. Cassar will not provide testimony in your favour.
• Since the Employer is calling upon the Police Officer, we have reasonably assumed the Police Officer will not provide testimony in your favour.
• You have formed the view, for other various reasons, that the Police Officer will support Mr. Cassar’s anticipated testimony.
• While costs can be awarded in limited circumstances, I have advised that the risk of this is low. However, this risk may increase (yet still remain low) if you are found to be vexatious or dishonest. For clarity, I have informed you that about 90% of costs applications are rejected by the Fair Work Commission.
• An adverse decision or finding by the Fair Work Commission may, although unknown, trigger NSW Police to press charges against you. I have further advised that the thresholds for pressing charges in such instances are significantly different.

In light of the above, you have instructed me to discontinue this matter. I wish you the best of luck in your future endeavours.

Kind Regards
Michael Alkan | Principal Consultant

1. At 7.33 pm on 7 August 2024 Mr Alkan emailed the Commission a notice of discontinuance. The text of the email annexing the notice read:

   Dear Associate

   I have been instructed to discontinue this matter. Please find attached a notice of discontinuance.

   The Respondent’s representatives have been copied into this email correspondence. Additionally, I will inform Ms. Rana, a witness called by the Applicant, that her attendance is no longer required.

   Kind Regards

   Michael Alkan | Principal Consultant

2. Ms Rana was required to attend in accordance with an order issued by the Commission at Mr Alkan’s request.

1. Mr Ejaz sent Mr Alkan a further email at 6.35 am on 8 August 2024. It read:

   Good morning Michael,

   If you have not advised to the commission and to the other parties then I want to run the matter.

   1. I was thinking a lot last night and found that I did not pushed the police officer and if my hand has touched him then it was with the to get his attention and it can’t be a assault or push.

   2. Concerning Cassar, if he has said once or twice I obeyed his instructions and went back to my position and hence he can not say I disobeyed him.

   3. Rana I believe you told me that you were going to have her details and I don’t know if you have spoken to her or not.

   I believe I did not do anything wrong and therefore I should go for hearing.

   Actually I sent you email this morning 5am but found out my recharge was expired and did not deliver. It was detailed email which did not go through.

   Thanks
   Kind Regards

   Sabir Ejaz.

2. Mr Alkan spoke to Mr Ejaz on the phone at 7.36 am on 8 August 2024 for 58 minutes and again at 9.53 am for 6 minutes.

1. The hearing was not vacated and proceeded at 10.00 am on 8 August 2024. There was no appearance by or on behalf of Mr Ejaz. ACES foreshadowed that it would make a costs application against both Mr Ejaz and HR Experts. In the event ACES has only sought an order against HR Experts.

Subsequent events

1. On Friday 9 August 2024 Mr Ejaz wrote to the Commission in the following terms:

I am the applicant for the above matter. My enquiry is about this matter is as follows,

1.  Could you please tell me what time and date you received notice of discontinue the matter from my solicitor for what reason and what he said in his email. I need time and reason given to the Commission.

2.  How many individuals were present from the Respondent side.

3.  If any order was given by the court.

It would be greatly appreciated if you could please provide the above information in detail. I have asked my solicitor but he has not provided me any details and I am not happy from my solicitor.

1. The email gave rise to concern that the notice of discontinuance may not have been valid as described by the Full Bench Howell v Elite Elevators Pty Ltd [2023] FWCFB 265 dealing with similar circumstances. The matter was listed for hearing on that question for 14 August 2024. A notice to produce was also issued seeking all communications between Mr Ejaz and Mr Alkan. Mr Alkan objected to that notice and sought that it be set aside. The circumstances giving rise to the notice are set out in my reasons for dismissing Mr Alkan’s application to set the notice aside ([2024] FWC 2158). The Notice was subsequently set aside as Mr Alkan made partial production. There was ultimately no hearing on whether the notice of discontinuance was invalid. 

1. Arising from these events there was an exchange of emails in which Mr Alkan insisted that Mr Ejaz cease making statements about the way he had represented Mr Ejaz in the proceedings. These communications included a threat from Mr Alkan that he would commence defamation proceedings.  On the evening of 14 August 2024 Mr Ejaz wrote the following email to Mr Alkan:

Dear Michael,

Again you are not understanding from the point of view from my side. I have read the decision made by the FWC. In that decision I noted that,

1. Footage was available before the hearing and arrangements were made to view the footage, therefore I was wondering what arrangements were made because you have not told me about the arrangements.

2. As you have advised me days before that when we go to the hearing we will view the footage and then make decision if we want to go ahead with the hearing or not, this communication was in my head and I was expecting that we will attend the hearing.

3. You indicated that police footage was available but we don’t have access to it and we have not viewed yet and there is not enough time to view the footage. Assuming the footage and viewing the footage are completely two different things and correct decision can’t be made.

4. Concerning court arrangements to view the footage you have not told me such arrangements, so how I do know the arrangements have been made.

5. Also before the hearing day on 8 April 2024,1 sent you an email around 6am, to attend the hearing which was replacing the old email of 7th April 2024 of discontinue the matter.

6. From the decision I understand that my email to attend the hearing was not sent to the commission because Again you have not informed me that if you have sent or not sent my email dated 8th April 2024 around 6am.

7. Also I understand from the FWC decision that the Respondent arrived there again I am not sure if you have informed them about the discontinue notice or not. Respondent made cost claim because we did not attend the hearing and we were not there. I did not received any clear cut information from you about it, that if you have informed them about the notice of discontinue.

8. I believe if the arrangements were made to view the footage by the FWC then you should have told me about it and we must go and view the footage but you did not go because you said discontinue notice was filed but ignored my email dated 8th April 2024 around 6am to go to the hearing.

9. Please understand that from your side I was put in a confused situation and did not know exactly what was happening except bits and pieces or little information about the on going situation.

10. If you have simply followed my instruction to go to the hearing then we would not be in this situation what we are now and it has happened due to the lack of comprehensive and full detailed communication. Bits and pieces of information are not good enough to understand the exact situation.

11. If you remember that I asked you why we are not going to the hearing and see the footage and then make decision and I don’t know why you didn’t follow my instruction to go to the court, I am still confused and shocked. I paid you money for the hearing not put me off from the hearing.

12. Concerning “defamatory communication” I don’t know about it what is this means and why you are telling me this that I am doing defamatory communication.

13. I only make my enquiry about the exact situation to understand and trying to understand what is going on and I am becoming more confused and angry when you are cutting me off telling me that you are no longer representing me after taking the amount of $4950 for the hearing.

14 .I am communicating with the FWC because you are not communicating with me but accusing me that I am doing something wrong.

15.I am sorry if you have felt that way but I have no intention to harm your reputation in anyway.

16. Please tell me finally if you will represent me or not because I am still confused about it. If you are not representing me then are you going to refund the amount of $4950 you have charged me for the hearing. So I can use this amount to pay someone for the purpose of hearing.

17. Please don’t take ill feelings I understand how you are feeling but definitely I don’t have any bad intention against you at all.

18. You have to put yourself in my shoes to understand how do I feel about all this on going situation.

19. At the end with your blessings I request you don’t take my communication as a “defamatory” because I don’t know what does it mean secondly my communication was simply to clarify the situation and to understand the situation for myself and not to harm you.

With great respect and with no ill feelings I thank you for your kind attention and the work you have done so far.

Thankyou very much

Kind Regards

1. This email provides some account of the discussions between Mr Alkan and Mr Ejaz about the discontinuance. The date of the hearing in the email is incorrect. The references to 8 April 2024 should be 8 August 2024. I note that Mr Ejaz did not give evidence and was not questioned about its contents and will give it weight accordingly.

Principles

1. Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are a number of provisions in the FW Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. Section 401 is one of those sections. It provides:

401 Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for an unfair dismissal remedy has been made under section 394; and

(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and

(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under this section 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.

1. The expression “unreasonable act or omission” in the context of costs has been used in predecessor legislation to the Act. Section 824(2) of the Workplace Relations Act 1996 (the WR Act) provided for costs to be awarded by a court where a party had caused another party to incur costs by an unreasonable act or omission. The Full Court of the Federal Court of Australia considered the expression as used in s824(2) and said:

We turn now to s 824(2) of the WR Act. This provision carves out another exception to the usual rule in s 824(1) that costs orders are not to be made in respect of proceedings in a matter arising under the WR Act. The exception applies when two criteria are satisfied. The first criterion is that one party must have engaged in “an unreasonable act or omission”. As the reasoning of Tracey J in Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392 and Siopis J in McAleer v The University of Western Australia (No 2) (2007) 161 IR 151 demonstrates, whether a party has conducted itself or its litigation in such a way as to cross this threshold will depend on the particular circumstances of the case. The second criterion is that the act or omission of one party must have “caused another party to the proceeding to incur costs in connection with the proceeding”. Once both criteria are satisfied, then the Court “may” in its discretion order the party which has engaged in the unreasonable act or omission to pay some or all of the costs of the other party.

1. Other cases have said that whether an act is “unreasonable” is informed by its context and requires an evaluative assessment of all the circumstances. Bromberg J made the following observations about the expression “unreasonable act or omission” used in s570 of the Act in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at 171:

[163] The primary judge held that as Ms Celand had rejected a reasonable offer of settlement, she had engaged in an act or omission which was “unreasonable” within the meaning of s 570(2)(b) of the FW Act. It does not necessarily follow that the rejection of a reasonable offer amounts to an “unreasonable act or omission”. All relevant circumstances need to be taken into account and circumstances other than the reasonable character of the offer may dictate whether its rejection was or was not unreasonable.

[164] Secondly and relatedly, the word “reasonable” is not conducive of exact definition. As Stroud’s Judicial Dictionary of Words and Phrases (4th ed, Sweet & Maxwell Limited, 1974, at 2258) says in its definition for the word “reasonable” – “it would be unreasonable to expect an exact definition of the word ‘reasonable’”. The word “unreasonable” takes much of its colour from its context.

1. In the same case Charlesworth J observed:

[171] The question of whether the appellant’s conduct in allowing the offer to expire was an “unreasonable act” required an evaluative assessment of all of the circumstances. It turned on matters of judgment and degree. In my view, the conclusion that the appellant committed an unreasonable act was open to the primary judge to make in all of the circumstances. It was the subjective “satisfaction” of the primary judge as to the existence of an unreasonable act that enlivened the discretion to award costs. The formation by the primary judge of that state of satisfaction has not been shown to be affected by any error warranting appellate intervention. More specifically, it cannot be said that the primary judge misconstrued the test prescribed in s 570(2)(b) of the Act, and it is not enough to show that this Court might have evaluated the same facts in a different way and so arrived at a different result.

1. A number of cases have considered the type of circumstances that might be described as involving an unreasonable act or omission. The phrase was also used in s.170CJ(3) of the WR Act that provision was considered by a Full Bench of the Australian Industrial Relations Commission in Goffet v Recruitment National Pty Ltd [2009] AIRCFB 626 where the Full Bench said in relation to a failure to attend conciliation:

… The failure to initiate contact with the Commission and/or the Appellant prior to the scheduled start time for the conciliation to inform it or them of the non-attendance of the Respondent was unreasonable. If the act was intentional it would be an unreasonable act. If unintentional it would be an unreasonable omission. There is no evidence that the Respondent’s conduct in this regard was an intentional act. We are satisfied that the Respondent’s conduct in respect of the conciliation on 5 November 2009 was an unreasonable omission which caused the Appellant to incur costs.”

1. It has also been said that a failure to accept an offer of compromise can constitute an unreasonable act or omission for the purposes of section 570(2) of the Act: see Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 and McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 at [23]. Whether the refusal to accept an offer of compromise is reasonable will be determined by reference to the circumstances that existed at the time that the rejection occurred and the party seeking a costs order bears the onus of establishing that the refusal of the offer was unreasonable: see Health Services Union v Jackson (No 5) [2015] FCA 1467 at [46].

1. In a matter that has some resonance with the current proceedings, Clarke v FKP Group Ltd [2013] FMCA 145, the Federal Magistrates Court of Australia ordered costs be paid under s. 570(2)(b) which provides for costs in court proceedings where the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs where an applicant had rejected offers from the respondent to resolve the matter on the basis that the applicant walk away and pay no costs but later filed a notice of discontinuance immediately prior to hearing. In that case it was said:

   [11] Undoubtedly it is for that reason that it did not resolve at an early stage. Notwithstanding that fact, the applicant persisted in prosecuting it to a point where he ultimately filed a Notice of Discontinuance, which reinforces the view that the application had little or no merit. Furthermore, the applicant’s conduct in refusing reasonable offers of settlement which had been proffered in the interim , in my view, does also demonstrate the unreasonableness of his conduct and its effect in putting the respondent to the expense of having to prepare for trial.

2. ACES application is for costs to be paid by Mr Alkan as Mr Ejaz’s paid agent. Section 401 is directed at costs orders to be made against lawyers and paid agents. In In Mr Simon Lewis v SGA (1994) Pty Ltd [2020] FWC 2229 Deputy President Anderson made the following observation:

[92] Whilst the section does not displace the general statutory proposition that each party bear their own costs in proceedings before the Commission, it sits exclusively within the unfair dismissal provisions of the FW Act. That it was inserted by the legislature by amendment in 2012 after the FW Act (including Part 3-2 and section 611(1) had commenced) it represents a clear indication of legislative purpose that representatives be held accountable for unreasonable conduct in pursuit of unfair dismissal matters. The legislature referred to its 2012 amendments as being a “stronger deterrent”.

1. The Deputy President referred to the decision of the Full Bench in Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates[2014] FWCFB 1276 (Livingstones) where an order for costs was challenged on the basis that the first instance decision failed to treat the discretion in s401 as involving the exercise of two discretions. The Full Bench said at [94]:

[94] It does not assist to describe the provision as involving two distinct discretions. Ordinarily, one would expect that a finding of satisfaction as to the existence of the prescribed state of affairs would result in the discretion conferred by s.401(b) - what the appellant describes as the ‘second’ discretion – being exercised against the lawyer or paid agent. After all, the manifest purpose of the provision is to act as a disincentive to lawyers or paid agents granted permission to appear from causing costs to be incurred by other parties through unreasonable acts or omissions. However, such a finding does not inevitably result in the discretion being exercised against the lawyer or paid agent. There may be circumstances in a particular case that would render it unjust to make any award of costs notwithstanding such a finding. The issue is really one of adequacy of reasons. Argument before the Commissioner focussed on the requirement in s.401(b) that “the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter” rather than the discretion that arose once that condition was satisfied. It was understandable that the Commissioner’s reasons had the same focus. We are not persuaded that the Commissioner was obliged to give reasons beyond those that she did and address, as a separate part of her decision, why, having been satisfied that the required state of affairs existed, she had decided it was appropriate to make an order.

1. The Full Bench also referred to a decision of the High Court in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6; 186 CLR 622 where McHugh J described the exercise of the discretion to award costs where a case has not proceeded to trial as follows:

8. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant’s taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

9. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

1. In Livingstones the appeal succeeded and the matter, including the costs application, was remitted to another member of the Commission. The Full Bench provided the following guidance:

   [109] The member to whom the costs application is remitted, having heard from the parties, will have to apply s.401, s.400A and s.611 to determine whether or not costs should be ordered against one or both of the Employee and Representative. If the discretion to award costs is enlivened, the proper exercise of discretion will depend upon all the relevant circumstances of the case. However, if a representative has encouraged an employee to pursue an unfair dismissal application that manifestly had no reasonable prospects of success then it may be appropriate for the representative to bear the costs. On the other hand, if a representative has discouraged the proceeding because of poor prospects of success (even if nevertheless considering the case to be properly arguable), and the matter has proceeded at the insistence of the employee, it may be appropriate for the employee to bear the costs.

1. In submissions Mr Alkan said on a number of occasions that he was not a lawyer, and his conduct should be considered on the basis that he did not have the formal education of a lawyer. He described himself as having been a lay advocate who had practiced in industrial tribunals for over a decade who had learnt his skills in “the school of hard knocks”. Relevant to that submission a Full Bench of the Commission in Howell v Elite Elevators[2023] FWCFB 265 observed that there is no regulatory scheme governing the qualifications, conduct, ethics or financial dealings of paid agents. The Full Bench noted that where paid agents are involved the Commission in meeting its obligations to perform its functions and exercise its powers in a manner which is fair, just, open and transparent would not permit the Commission to allow paid agents to conduct themselves in a manner which is significantly inconsistent with the applicable professional obligations of lawyers in equivalent circumstances.

1. I consider the following matters to arise from the authorities referred to above:

   (a)The general rule under the Act is that parties before the Commission bear their own costs. Exceptions to that rule allow costs to be awarded by the Commission in limited circumstances.

   (b)Those exceptions include under s. 401 where, in unfair dismissal proceedings, where a lawyer or paid agent has caused costs to be incurred due to unreasonable acts or omissions. Whether a party has conducted itself or the litigation in such a way as to cross this threshold will depend on the particular circumstances of the case.

(c)Whether an act or omission is reasonable will be informed by its context and requires an evaluative assessment of all relevant circumstances. Unreasonable acts or omissions may include but are not limited to; rejecting offers of settlement, failing to attend proceedings, refusing offers of settlement, continuing proceedings which have little prospects of success, and discontinuing proceedings late.

(d)The act or omission must result in costs being incurred.

(e)Even if the criteria for a costs order are satisfied the Commission has discretion in deciding to make an order and the form of that order. In exercising the discretion, the Commission should be mindful of the purpose of s 401 which includes, but is not limited to, to act as a disincentive to lawyers or paid agents from causing costs to be incurred by other parties through unreasonable acts or omissions and to hold lawyers and paid representatives accountable for their acts and omissions.

(f)In the case of paid agents, who are not otherwise subject to professional standards, the Commission should exercise its functions in a manner that ensures that representatives conduct is consistent with the applicable professional obligations of lawyers in equivalent circumstances. ​

​

1. I will apply these matters in my consideration of the current application.

Consideration

1. ACES relies upon s401(1A)(b) contending that unreasonable acts or omissions by Mr Alkan caused it to incur costs in the matter.

1. ACES contends that Mr Alkan’s unreasonable acts or omissions were:

(a)A failure to attend a conciliation conference before a Commission Conciliator on 24 June 2024.

(b)A Failure to provide and/or advise Mr Ejaz in relation to an offer to resolve the unfair dismissal claim made on 10 July 2024.

(c)A failure to make proper enquiries concerning the facts underpinning Mr Ejaz’s unfair dismissal matter.

(d)A failure to provide Mr Ejaz with appropriate advice regarding the prospects of his claim.

(e) A failure to attend a listing hearing before the Commission on 8 August 2024.

1. I have already set out in some detail the key events and communications surrounding Mr Ejaz’s unfair dismissal claim. That material includes the communications, settlement offers, procedural developments, and adjournment requests leading up to the scheduled hearing on 8 August 2024.

Failure to attend conciliation

1. The application was filed on 21 May 2024. A notice for a conciliation conference in the Commission was sent on 27 May 2024. The conference was set for 24 June 2024. The parties were informed that the conference would proceed on that day unless adjourned. An adjournment application was required and would only be entertained if substantial grounds were provided. On 3 June 2024 Mr Alkan made an offer of settlement the financial aspects of which sought 20 weeks’ pay, six weeks’ pro rata long service leave and payment of Mr Alkan’s professional costs. The offer put by Mr Alkan was put on the basis that costs would be sought if the offer was rejected. The offer differed from written instructions received from Mr Ejaz, which were not provided until after the offer was made and included reinstatement. The request for reinstatement in Mr Ejaz’s written instruction was never made by Mr Alkan. The offer that was made included the statement that Mr Alkan was of the view that if the parties could not reach settlement, then it was unlikely that conciliation would be of utility and that there would be no attendance by Mr Ejaz at the conciliation on 24 June 2024. The offer was rejected on the following day with the ACES indicating it was prepared to participate in the conciliation listed for 24 June 2024. Mr Alkan responded on 6 June 2024 that he welcomed the offer to conciliate but insisted on a counteroffer being made prior to the conciliation conference and threatened not to attend the conciliation if no counteroffer was made. I note that the offer was made with very little communication with Mr Ejaz. There had been a 20 minute conversation with Mr Ejaz an hour before the email was sent. That was not long enough to explain the significance of the matters continued in the email. I find that Mr Alkan was the moving force behind that email and was responsible for its contents and the proposition that if there was no counteroffer then conciliation would be “bypassed”.

1. Mr Alkan’s email was unreasonable on three counts. First, Mr Alkan did not amend the offer to include the request for reinstatement in accordance with his written instructions. Representatives should always act on instructions. Second, Mr Alkan used attendance at the conciliation conference as a means of pressing for ACES to make a counteroffer. I consider the threat by an applicant’s representative not to participate in a conference listed in the Commission is unreasonable. A refusal to attend conciliation undermines the well-established processes in this Commission which give effect to the numerous exhortations in the Act for the Commission to perform its functions expeditiously and efficiently. These include the object in s381 of establishing procedures for dealing with unfair dismissals that are quick, flexible and informal. The staff conciliation process that operates in the Commission in unfair dismissal matters is important in achieving this object. The Commission’s conciliators have an excellent track record of settling unfair dismissal matters.  Third, it was not for Mr Alkan to decide that there would be no conciliation. A notice of the conference had been issued by the Commission. The terms of the notice were clear that the conference would go ahead unless an application was made on substantial grounds for it to be adjourned. At best it was open to Mr Alkan to seek an adjournment of the conference. It was not open to him to refuse to attend. The unreasonableness of the approach taken by Mr Alkan, who tells me that he has long experience running unfair dismissal matters, is exacerbated by the fact that he must because of that experience be aware of the importance of conciliation in resolving unfair dismissal matters.

1. There was no response from ACES at the end of the 12 June 2024 deadline. Mr Alkan spoke to Mr Ejaz on 18 June 2024 when he says he was given instructions that Mr Ejaz did not want to attend the conciliation conference. It was not until the afternoon of 21 June 2024 that Mr Alkan attempted to send an email to the Commission advising that there would be no attendance at the conciliation conference scheduled for 9.15 am the following Monday. The email wasn’t received. On Sunday 23 June 2024, Mr Alkan had an inkling that his email hadn’t been received and wrote to Mr Ejaz telling him that if the Commission called him the following day, he should ignore the call. Mr Ejaz then rang the Commission’s general number the following morning rather than attending the conciliation conference and advised he was not attending the conference. This course of action was also unreasonable. The decision not to attend the conference at all and “bypass conciliation” was unreasonable for the reasons referred to above. Participation in conciliation in the Commission is an important part of the Commission’s processes in resolving matters before it, especially unfair dismissal claims.

1. The late, albeit unsuccessful, attempt to advise parties on the business day before the conference of the intention not to attend was also unreasonable. This unreasonableness was made worse when Mr Alkan realised on Sunday that the Friday email had not been considered (because it was not received) and instead of attending the conference on Monday made a conscious decision not to attend anyway. He also advised Mr Ejaz on Sunday to ignore any calls from the Commission the following morning, and on the morning of the conference, simply phoned the Commission’s general number, not the conciliator, 15 minutes prior to the scheduled time for the conference and advised that there would be no attendance.

1. As the Full Bench of the AIRC said in Goffet v Recruitment National Pty Ltd [2009] AIRCFB 626 a failure to initiate contact with the Commission and/or the other party prior to the scheduled start time for the conciliation to inform of the non-attendance of the Respondent constitutes an unreasonable act or omission.

1. The non-attendance at the conference itself was also unreasonable. For the same reasons that the threat to not attend the conference was unreasonable. The failure to attend conciliation deprived both parties of the opportunity of having the claim resolved in a quick, flexible and informal manner. Mr Alkan’s decision that there would be no conciliation and the steps he took to ensure there was none, including advising Mr Ejaz not to respond to phone calls from the Commission, were all unreasonable for the reasons already given.

Failure to provide or advise Mr Ejaz of ACE’s offer of settlement on 10 July 2024.

1. On 3 July 2024 Mr Alkan called Ms Hocaoglu to discuss Mr Ejaz’s case. ​ He proposed a timetable for the hearing and discussed witnesses to be called. ​ He also mentioned seeking orders to obtain police bodycam and CCTV footage related to the incident. As it appeared the matter was destined for hearing ACES engaged solicitors. This occurred on 4 July 2024. A directions hearing was held on 8 July 2024 and a program set for the filing of material in preparation for a hearing on 8 August 2024. At 5.15 pm on 10 July 2024 ACE’s solicitors made an offer to settle the matter on the basis that Mr Ejaz discontinue the matter and each party bear their owns costs. The offer was made on the basis that if it were rejected it would be relied upon in any application for costs. The offer remained open until 12 July 2024. Mr Alkan could not remember if he forwarded the offer to Mr Ejaz. There was no record that he did, and I find that he did not.

1. Mr Alkan responded to the offer in an email at 11.15 am on 11 July 2024. The email rejecting the offer was in strident terms with Mr Alkan stating he and Mr Ejaz were outraged by the offer. It contained a number of assertions that were at best problematic. Those included that the Act is a no costs jurisdiction with minimal exceptions. That 90% of costs applications are rejected by the Commission. There appears to be no basis for that statement. That costs cannot be granted where permission to represented has not been granted. That is simply incorrect as even a cursory reading of s. 401(1) demonstrates (see also Lucas v Qantas Airways Limited[2023] FWCFB 147). There was a phone call between Mr Alkan and Mr Ejaz at 11.09 am on 11 July 2024. It lasted 3 minutes. Mr Alkan submitted that he was on the phone with Mr Ejaz when the offer was made and took instructions at that time. The timestamps on the emails and the phone records show that not to be the case. A later offer was made, on 31 July 2024 when that was the case, but the 10 July 2024 offer was rejected without adequate notice or advice to Mr Ejaz. I accept ACE’s submissions that Mr Alkan neither provided the offer to Mr Ejaz nor gave him advice about the offer before rejecting it. A 3 minute phone call was not sufficient to provide Mr Ejaz with adequate advice about the offer.

1. I find that the failure of Mr Alkan to provide Mr Ejaz with a copy of the 10 July 2024 offer and his failure to give adequate advice about the consequences of rejecting the offer was unreasonable. It is axiomatic that representatives should take a considered approach to offers of settlement made in proceedings, provide their clients with a copy of those offers, and give considered advice in relation to them.

Failure to make proper enquiries about Mr Ejaz’s case

1. ACES submits that there was police bodycam footage of the incident that gave rise to Mr Ejaz’s dismissal. Part of the reason for the dismissal was that Mr Ejaz had pushed a police officer. Mr Ejaz denied pushing the officer. Mr Alkan was aware of the footage having referred to it and suggested he would obtain a copy in a discussion with Ms Hocaoglu on 3 July 2024. Mr Alkan did not seek an order for production for the footage until 26 July 2024, two weeks after filing a witness statement of Mr Ejaz in which he denied pushing the officer. ACES submits that the footage shows that Mr Ejaz had pushed the police officer. It submits that Mr Alkan’s failure to properly investigate the incident by seeking the footage earlier meant that Mr Alkan was not able to advise Mr Ejaz of the prospects of his claim.

1. I do not accept this submission. The footage is not before me, and I am not able to assess the merits of Mr Ejaz’s prospects had the hearing gone ahead. While I consider the circumstances surrounding the timing and the way Mr Alkan went about securing the footage for the hearing form part of a course of conduct that I find was unreasonable, and I deal with this matter later, I do not consider that it was an unreasonable failure to make proper enquiries concerning Mr Ejaz’s case. I note that Mr Alkan correctly maintained that it was for the employer to establish the misconduct and that ACES did not take steps to acquire the footage at an early stage either. If it was unreasonable for Mr Alkan to fail to obtain the footage earlier, then it was also unreasonable for ACES not to do so.

Failure to provide appropriate advice regarding the prospects of the claim.

1. ACES submits that Mr Alkan failed to provide appropriate advice regarding the prospects of his claim. It argues this matter is related to the failure to properly investigate the claim by seeking the bodycam footage. ACES also points to the lack of written advice from Mr Alkan to Mr Ejaz about the prospects of winning the case. Mr Alkan explained that most of his communications with Mr Ejaz were by telephone and that he thought that appropriate because English was Mr Ejaz’s second language, and he communicated better with him over the phone. However, there is little in the evidence about the nature of the advice given and nothing to indicate that Mr Alkan provided Mr Ejaz with any advice of prospects other than in the communications with him on the evening before the hearing listed on 8 August 2024. I will deal with the issue below. It appears some advice was given as there was a softening in Mr Ejaz’s willingness to settle the matter. The initial offer made on his behalf on 3 June 2024 amounted to 26 weeks’ pay, this was maintained in the correspondence of 11 July 2024. On 26 July 2024, after the written material for ACES was filed and served the offer to settle came down to 16 weeks’ pay. It was rejected. ACES repeated its offer to settle on no payment, but the parties bear their own costs. I am not satisfied that Mr Alkan failed to provide appropriate advice regarding the prospects of success. Indeed, I cannot say what advice was provided as Mr Alkan provided no evidence on what he told Mr Ejaz about the prospects of succeeding in his claim. In any event, I do not find this to be a significant factor in the current application. It appears from the correspondence that Mr Alkan’s view was that the onus was on ACES to prove the conduct and that may prove a challenge. I do not consider this matter to weigh heavily in my assessment of Mr Alkan’s conduct for the purpose of this application.

Failure to attend the listed hearing

1. A week before the hearing, Mr Alkan applied for and was granted an order that the police provide the bodycam footage that he had referred to in discussions with ACES on 3 July 2024 as important evidence. That footage was provided and made available for the parties to view on the morning of the hearing. Orders were also issued for the attendance of witnesses including the police officer involved in the incident.

1. In the week prior to the hearing, Mr Alkan also made two unsuccessful adjournment requests. The second was made the afternoon before the hearing. Thirty minutes after the second request was denied Mr Alkan rang Mr Ejaz and spoke with him for over an hour. There was a further conversation for 37 minutes before an exchange of emails. The first was a short email in which Mr Ejaz said, “As discussed please discontinue the claim”. Mr Alkan responded with an email confirming the contents of the discussions. The tenor of that email was that there had been discussion about what might be in the police bodycam footage with a conclusion that it would be neither beneficial nor detrimental to the case. How this conclusion could be reached is a mystery - neither Mr Ejaz nor Mr Alkan had seen it. Similarly, the discussion appears to have canvassed evidence to be given by the other witnesses who had been ordered to attend. One witness had provided an incident report earlier that Mr Alkan and Mr Ejaz had seen. The conclusion had been reached that the witness’s evidence would be unfavourable to Mr Ejaz. It was also assumed in the discussion that the police officer would not give favourable testimony.

1. It appears that it was these matters that formed the basis for deciding not to go ahead with the hearing the following day. Mr Alkan gave evidence but did not provide elaboration of the reasons for the discontinuance.

1. The email then records that Mr Alkan gave Mr Ejaz advice about the risk of a costs order being made. Mr Alkan advised that about 90% of costs applications are rejected by the Commission. The final factor discussed was advice from Mr Alkan that an adverse decision by the Commission in the proceedings may result in the NSW Police pressing charges against Mr Ejaz. There appears to be no basis whatsoever for this advice.

2. The baffling thing about the matters that led to the discontinuance between Mr Alkan and Mr Ejaz is that they dealt with nothing new. The circumstances of Mr Ejaz’s claim had not changed significantly since the application was filed. There had been an allegation that Mr Ejaz had pushed a police officer during an incident at the hospital. That conduct was the reason for the dismissal. Witness statements and submissions had been filed on the question of whether the conduct occurred and whether, if it did, it justified dismissal. The case was not out of the usual. There was an issue over proving the conduct. That was expected to be resolved ultimately by the production of the bodycam footage to the Commission. The footage would also provide the context of the incident that would assist in determining whether it justified dismissal. The matters discussed in the two lengthy conversations on the eve of the hearing were matters that ought to have been considered well before the evening before the hearing. Nothing had arisen since the matter was commenced that would lead to a reconsideration of the case at the last moment.

3. Early on the morning of the hearing Mr Ejaz wrote to Mr Alkan saying that he wanted the hearing to proceed. The email said that Mr Ejaz maintained that he did not push the officer, and that he did not do anything wrong, and his matter should go to hearing. This email was followed by a call from Mr Alkan to Mr Ejaz at 7.36 am for an hour. This later exchange suggests, and I find, that Mr Alkan had been the instigator of the discussion the night before and that Mr Ejaz had reluctantly taken advice to discontinue the matter. Other material that suggests this was the case is the fact that the lengthy phone conversations on the evening of 7 August 2024 were calls made by Mr Alkan to Mr Ejaz. The email from Mr Alkan to Mr Ejaz confirming his instructions also read as Mr Alkan setting out in brief terms what he had said to Mr Ejaz to garner his instructions to discontinue. Mr Alkan submitted that in discontinuing the matter he was simply acting on instructions. The contemporaneous material suggests otherwise. The context does too. Mr Alkan was representing Mr Ejaz, he traded under the business name HR Experts. Mr Ejaz no doubt was paying Mr Alkan believing he had some expertise and would provide sound advice. I find that on the evening of 7 August 2024, Mr Ejaz was given advice by Mr Alkan to instruct him to discontinue the proceedings, and he followed it. It is also apparent that Mr Alkan advised Mr Ejaz that as the matter was to be discontinued there would be no need for an appearance to be made on Mr Ejaz’s behalf at the hearing the following morning.

1. The Hearing proceeded on 8 August 2024. ACES was represented by Counsel and instructing solicitors. The witnesses in the proceeding also attended, including three witnesses required to do so under compulsion of an order of the Commission. There was no attendance on behalf of Mr Ejaz.

1. I have found that it was unreasonable for Mr Alkan to threaten to and then bypass conciliation, fail to provide Mr Alkan with a copy of the 10 July 2024 settlement offer, and to discontinue the claim so late in the proceedings. Mr Alkan relies on the fact that he was instructed to take those actions by Mr Ejaz. I have found that the threats to bypass conciliation and the non-attendance were done at Mr Alkan’s initiative. I consider that on the occasions that Mr Ejaz gave instructions to Mr Alkan he was acting on advice from Mr Alkan. Mr Alkan either engaged in unreasonable action in advising Mr Ejaz to provide those instructions or omitted to provide appropriate advice. The first two matters contributed to the claim not being settled at an early stage. While I form no view about whether Mr Ejaz’s matter would have succeeded at hearing, ACES was successful in the proceedings as Mr Ejaz withdrew his claim. That outcome was on the same terms as the walk away offer made on 10 July 2024. ACES had in the meantime, incurred considerable legal costs to defend the claim. I am satisfied the steps taken that hindered early settlement combined with the late discontinuance of the matter caused ACES to incur those legal costs. I am satisfied that Mr Alkan’s conduct was unreasonable as contemplated in s401(1)(b) and it caused ACES to incur the costs claimed.

1. As the Full Bench noted in Lucas v Qantas Airways Limited[2023] FWCFB 147 at [3], even if the Commission is satisfied that the prerequisites for a costs order are met it is not required to order costs. Whether costs are to be awarded at all, and the amount of any costs that are awarded, involves the exercise of discretion. In Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 8162 at [16] the Full Bench observed that while the circumstances in which costs can be awarded are circumscribed, they still involve the exercise of a discretionary power where the Commission. The Full Bench went on to observe that if the circumstances giving rise to the discretion are established, the Commission, in the broad exercise of that discretion, may make an order that a person bear some, or all, of the costs of another person in relation to the application, including on an indemnity basis.

2. ACES seeks an order for its total costs and disbursements in the amount of $41,329, which includes solicitors’ fees of $21,265.40 and counsel fees of $20,064. All of the solicitors’ fees were based on actual charged rates and are sought on an indemnity basis.

3. Section 403 deals with the quantum of costs that may be awarded. It limits the amount that can be awarded for certain legal services. It reads:

   403 Schedule of costs

   (1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

   (a) under section 611 in relation to a matter arising under this Part; or
   (b) under section 400A or 401;

   including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

   (2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 400A or 401, the FWC:

   (a) is not limited to the items of expenditure appearing in the schedule; but
   (b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

1. The relevant schedule is Schedule 3.1. The itemised list provided was cross referenced to corresponding amounts in the Schedule. It identified the amount allowed in the schedule as well as the actual sum charged. The schedule provides fixed amounts for most items, while some items may be awarded at the Commission's discretion. I have taken the approach that those amounts in the schedule of costs that may be awarded at my discretion will be awarded on an indemnity basis. Applying that approach to the Schedule of costs attached to the application, the solicitors’ fees are reduced to $8,888.20. Item 1301 of Schedule 3.1 provides that counsel’s fees may be claimed as a disbursement and the amount ordered may be an amount the Commission considers fair and reasonable according to the circumstances of the case and the seniority of counsel. I consider counsel’s fees as claimed in the schedule of $20,064 to be fair and reasonable.

1. Consequently, I propose to order that Mr Alkan pay ACES an amount of $28,952.20, being costs that he caused ACES to incur because of the unreasonable acts or omissions identified above.

1. Mr Alkan asked that if I decide to make an order he be heard on quantum. Any submission that Mr Alkan wishes to make on the quantum of the final costs order is to be filed and served on ACES by close of business Friday 27 June 2025. ACES will have until close of business on 3 July 2025 to make any submissions in reply. An order will issue following receipt of those submissions.  

DEPUTY PRESIDENT

Appearances:

Mr J McLean of Counsel and Ms N Town, Solicitor for the Applicant (Costs)
Mr M Alkan, the Respondent (Costs) on his own behalf.

Hearing details:

In Person.
Sydney
11 February 2025

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