Daniel Hall v The Whole Box ‘n Dice Pty Ltd

[2018] FWC 6377

[2018] FWC 6377

FAIR WORK COMMISSION

DECISION

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

Daniel Hall
v
The Whole Box ‘n Dice Pty Ltd
(U2017/13508)

COMMISSIONER CAMBRIDGE SYDNEY, 15 OCTOBER 2018

Unfair dismissal claim - application for costs - s.400A of the Fair Work Act - application made against party - no act or omission identified - application refused.

[1] This Decision is made in respect to an application for costs (the costs application) that was made pursuant to s. 400A of the Fair Work Act 2009 (the Act). The Decision is issued further to the extempore determination made during proceeding held today, 15 October 2018.

[2] The costs application was made on 21 June 2018, by Daniel Peter Hall (the applicant). In accordance with the requirements of s. 402 of the Act, the costs application was made within 14 days after the Commission issued a Decision (the Decision), in favour of the applicant wherein it was found that the respondent employer, The Whole Box ‘n Dice Pty Ltd (the employer), had unfairly dismissed the applicant.

[3] The applicant made an appeal under s. 604 of the Act against the Decision. A Full Bench of the Commission issued a Decision on 28 September 2018 (the Appeal Decision). The Appeal Decision determined, inter alia, to not grant permission to appeal as required by subsection 400 (1) of the Act.

[4] The costs application was listed for further proceedings today, 15 October 2018. The applicant has confirmed to the Commission that the costs application was taken under s. 400A of the Act. Section 400A is in the following terms:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611”

[5] Further, the applicant has confirmed that he was unable to identify any act or omission of the employer that was taken in connection with the conduct or continuation of the matter and which could be the subject of examination as being potentially unreasonable. The applicant advised the Commission that the costs application was advanced on the basis that the dismissal of the applicant was the unreasonable act of the employer upon which costs were incurred and for which the applicant sought recovery.

[6] In the Decision, the Commission established that the dismissal of the applicant was, inter alia, unreasonable. The applicant has confirmed that there was no other act or omission of the employer other than the act of the dismissal of the applicant, for which the costs application was advanced.

[7] Consequently, there could be no factual basis upon which the requirements of s. 400A could be satisfied. Therefore the costs application must be refused. An Order dismissing the costs application shall be issued accordingly.

COMMISSIONER

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