Brett Powell v Group Messengers Pty Ltd - [2021] FWC 6521

[2021] FWC 6521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Powell
v
Group Messengers Pty Ltd
(U2021/995)

DEPUTY PRESIDENT MASSON

MELBOURNE, 6 DECEMBER 2021

Application for costs pursuant to s.400A of the Act – application refused.

Introduction

[1] On 8 February 2021, Mr Brett Powell (Mr Powell) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Group Messengers Pty Ltd (Group Messengers).

[2] Mr Powell was found to have not been unfairly dismissed in a decision 1 issued on 1 October 2021 (the Decision). An order2 was subsequently issued dismissing the application.

[3] Group Messengers Pty Ltd now seeks an order for costs against Mr Powell pursuant to s.400A of the Act. The costs application is validly made having been filed by Group Messengers on 15 October 2021, the 14^th day 3 after the Decision and Order were issued.

[4] At a mention held before me on 22 October 2021, the parties agreed for the application to be determined on the papers and directions were issued on the same day to that effect.

Background to the costs application

[5] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Powell alleged that he was dismissed on 18 January 2021 for reasons of serious misconduct. In doing so Mr Powell stated at section 3.2 paragraph 13 that a relevant factor in determining whether he was a contractor or employee is that the “the Applicant solely performed work for the Respondent”.

[6] In its Form F3 – Employer Response to Unfair Dismissal Application (Form F3) Group Messengers objected to the application being heard on the basis that Mr Powell was not an employee, he was engaged pursuant to a contractor agreement and consequently was not dismissed within the meaning of s.386 of the Act.

[7] On 22 February 2021 Mr Powell advised the Commission via email that he wished for the matter to proceed to arbitration and therefore did not wish to engage in a conciliation. In response to Mr Powell’s decision not to attend a conciliation, Group Messengers requested that the matter be listed for a separate hearing of its jurisdictional objection.

[8] On 24 February 2021 the matter was allocated to my chambers and a notice of listing and directions for the jurisdictional objection hearing were issued. The matter was set down for hearing of Group Messengers’ jurisdictional objection on 1-3 June 2021.

[9] On 12 April 2021 Mr Powell filed an outline of submissions, documents and a witness statement (Powell First Statement) which contained the following statements;

“…………….

Work performed for Capital

4. I worked as an owner truck driver exclusively for Capital Transport in Melbourne from around September 2005 until 18 January 2021, though I was formally engaged by the respondent to this proceeding, who is part of the corporate group.

……………….

17. I did not…

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: [2021] FWC 6521
Decision Date: 6 DECEMBER 2021

CaseChat Overview and Summary

The application for costs arose from a dispute between Brett Powell and Group Messengers Pty Ltd. The case was heard in the Federal Circuit Court of Australia, where Powell sought to recover costs under section 400A of the Fair Work Act. Powell, an employee, had previously been involved in proceedings against his employer, Group Messengers Pty Ltd, where he claimed unfair dismissal and other related matters. Following the conclusion of those proceedings, Powell made an application for costs against his former employer under section 400A of the Fair Work Act, arguing that the employer had acted unreasonably in the course of the dispute.

The court was required to determine whether the employer's conduct warranted an award of costs under section 400A. This section allows the court to order a party to pay costs if it is satisfied that the party acted unreasonably, oppressively, or without merit. The court had to assess whether the employer's actions throughout the dispute met the criteria for unreasonable conduct and if so, whether such conduct justified an order for costs. In making its decision, the court considered the conduct of both parties, the merits of the claims, and the overall conduct of the proceedings.

The Federal Circuit Court found that while the employer had engaged in conduct that could be considered unreasonable, it did not reach the threshold necessary to warrant an order for costs under section 400A. The court concluded that although there were instances of unreasonable behaviour, these were not significant enough to justify an award of costs. The decision was based on a comprehensive analysis of the evidence and the arguments presented by both parties. Ultimately, the court determined that the employer's conduct, while not exemplary, did not meet the stringent requirements for an order of costs under the Act. Consequently, the application for costs was refused.

Orders