Danny Page v Independent Pub Group T/A Liquor Lads

[2013] FWC 9345

[2013] FWC 9345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danny Page
v
Independent Pub Group T/A Liquor Lads
(U2013/10734)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 NOVEMBER 2013

Application for costs by Independent Pub Group T/A Liquor Lads.

[1] This decision deals with a costs application made by Independent Pub Group Pty Ltd (IPG) pursuant to ss.400A and 611(2) of the Fair Work Act 2009 (the FW Act). That application followed a decision 1 I issued on 16 October 2013 in which I dismissed Mr Page's unfair dismissal application.

[2] Relative to this costs matter, both parties remain represented in the same manner. Both parties have provided written submissions with respect to the costs matter. Neither party has requested that the matter should be the subject of a hearing and I have not found it necessary to convene such a hearing.

[3] The costs application is made on the grounds that, pursuant to s.611(2) on the grounds that Mr Page made his application vexatiously or without reasonable cause or that it should have been reasonably apparent to Mr Page that his application had no reasonable prospect of success.

[4] In terms of s.400A IPG asserts that Mr Page's refusal to settle his application in the telephone conciliation process on the basis of an offer of two week’s pay, was an unreasonable act in connection with the conduct or continuation of the matter.

[5] Mr Page's position is that there is no clear evidence of unreasonable conduct, that Mr Page was, at the time of the lodgement of the application and when the settlement offer was made, self represented and had a sustainable basis for his application. Mr Page argues that the employer position that there was no termination of employment at the initiative of the employer was only articulated when the matter was being listed for arbitration and that the late lodgement of a witness statement made out by Mr Kaderes demonstrated that the matter was arguable. Mr Page asserted that the settlement offer was put on a without prejudice basis in the conciliation process and should not be used to support the costs application. In any event, Mr Page argued that he put a counter proposal and that the two week's pay offer was not a compelling offer.

[6] In my decision of 16 October 2013 I concluded that, whilst Mr Page's employment ended on 30 May 2013, he was not dismissed by IPG on that day. Further, that having considered the legislation and the approach generally applied to whether there was a termination of employment at the initiative of the employer, Mr Page was not forced to resign. As a consequence, Mr Page was not dismissed in accordance with s.386 of the FW Act and the application was dismissed.

Findings

[7] Section 611 states:

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[8] This section was considered by a Full Bench in Baker v Salva Resources Pty Ltd 2 in the following terms:

“[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and



• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”




(references removed)

[9] In Mr Page's circumstances I have taken into account that, at the time he lodged the application and participated in the conciliation process, he was self represented. Further, the advice purportedly given to Mr Page by his former work colleague, Mr Lewis which indicated knowledge of a dismissal, and the text messages from another colleague, Mr Kaderes, supported his application. I have concluded that Mr Page's appreciation of the events of 30 May 2013 were affected by his emotions and by the events of the previous few weeks. Of particular significance in this respect is the letter given to him on 17 May 2013 which referred to possible termination of employment. I have also taken into account the evidence of Mr Mitchell, to the effect that before the events of 30 May 2013 he anticipated that Mr Page may have agreed to relinquish his management role and return to a bottle-shop sales function. I have concluded that Mr Page may have misunderstood Mr Mitchell's disposition in this respect. Additionally, I have noted that IPG provided Mr Page with a separation certificate that confirmed the termination of his employment and hence reinforced Mr Page's position in this respect. Finally, I have noted that it was not until just prior to the hearing of this matter that IPG provided evidence from Mr Kaderes and evidence to confirm its position that there was no termination at the initiative of the employer.

[10] Consequently, I consider that the costs application, in as much as it is made under s.611 must fail.

[11] Before considering the operation of s.400A I note that after the conciliation process Mr Page gained professional representation from Mr Knox. Section 401A provides the capacity for pursuit of costs against representatives in certain circumstances. No application has been made on this basis and I will not further address Mr Knox's role in the matter other than to express some surprise that the matter proceeded in the way it did.

[12] Section 400A states:

“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.”

[13] The phrase "unreasonable act or omission" was an element of the former costs provisions of s.170CJ of the Workplace Relations Act 1996. As such it was the subject of substantial consideration. I have drawn some guidance from those considerations. The approach followed in Brazilian Butterfly Pty Ltd v Charalambous 3 and Deane v Paper Australia Pty Ltd4 are relevant in this respect.

[14] I have also considered the IPG position that Mr Page's rejection of the two week settlement offer was such an unreasonable act or omission. There is nothing to indicate that offer was such that it could be considered in a later costs application. Again, the conclusions reached in other matters under the former Workplace Relations Act 1996 demonstrate that the Commission has generally only relied on without prejudice discussions between unrepresented parties in the conciliation process in order to consider whether a party's behaviour was an unreasonable act or omission in limited and qualified situations. 5 I note that the provisions of s.170CJ of the Workplace Relations Act 1996 specifically addressed the conciliation function in a manner not addressed in s.400A.

[15] In this situation where the parties were not represented and the settlement offers were not put on a qualified basis, I am not persuaded that account should be had to Mr Page's rejection of that two week offer.

[16] Notwithstanding this, even if I had taken that offer into account I am not persuaded that Mr Page's actions in electing to pursue his application constituted an unreasonable act or omission for the purposes of s.400A. At that time I am not persuaded that IPG had established the basis for its issuing of an Employment Separation Certificate confirming Mr Page was dismissed. I am not persuaded that IPG had effectively established that it had not dismissed Mr Page or that his understanding of the views of colleagues Mr Lewis and Mr Kaderes was flawed.

[17] Finally, I note that after both parties obtained representation, those representatives could have pursued settlement options. They were given the opportunity to do so through a further conciliation before a Member of the Commission and did not collectively take up this offer. No information about the role of the party’s representatives is before me and hence the imposition of costs against Mr Page would not take into account issues of that nature which may have profoundly impacted on the nature of the proceedings before me.

Conclusion

[18] For the reasons I have set out in this decision, the IPG costs application is refused. The application is dismissed. An Order to that effect (PR545075) is issued separately.

<Price code A, PR545074>

 1   [2013] FWC 8121

 2   [2011] FWAFB 4014

 3   PR968915

 4   PR932454

 5   .See TL Smith v Department of Foreign Affairs and Trade [2008] AIRC 495 and Meacher v Natural Resources Conservation League of Victoria PR974394

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