David Bevis v Dust Collection Services Pty Ltd

[2021] FWC 5634

[2021] FWC 5634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Bevis
v
Dust Collection Services Pty Ltd
(U2020/12080)

COMMISSIONER SIMPSON BRISBANE, 8 SEPTEMBER 2021

Application under s.400A for costs – application dismissed

[1] This matter involves an application for costs filed on 27 May 2021 by Dust Collection Services Pty Ltd (DCS) under s.400A of the Fair Work Act 2009 (the Act) against Mr David Bevis. I will briefly set out some background to matters surrounding this costs application.

[2] On 9 September 2020, Mr Bevis made an application under section 394 of the Act for the Fair Work Commission (the Commission) to deal with an application for unfair dismissal. The Respondent filed a Form F3 Response advising of its jurisdictional objection that Mr Bevis was not dismissed.

[3] The Respondent sought and was granted leave to be represented by a lawyer. After an initial hearing on 17 February 2021, having to be adjourned due to technical difficulties, and a failure of Mr Bevis to appear on the subsequent date of 25 February 2021, the matter was eventually listed and proceeded on 10 March 2021.

[4] At the commencement of the hearing, I heard submissions from the parties in relation to a s.399A application made by DCS. The strike out application was dismissed, and the hearing proceeded and concluded that day.

[5] On 20 May 2021 I issued a lengthy decision 1 dealing with a wide range of factual contests, and ultimately dismissed Mr Bevis’ application on the basis that the Respondent’s jurisdictional objection was upheld.

[6] On 27 May 2021, DCS filed a Form F6 application for costs.

[7] Mr Bevis filed an appeal of the decision to dismiss his unfair dismissal application and the application for costs was adjourned on a consent basis pending the outcome of the appeal.

[8] On 14 July 2021 a Full Bench of the Commission issued a decision 2 refusing Mr Bevis’ application for permission to appeal.

[9] The costs application was listed for directions on 6 August 2021. By this stage both parties were self-represented for the costs application and both parties agreed to the costs application being deal with by way of written submissions. DCS relied on the submissions set out in its application for costs.

[10] Directions were issued for Mr Bevis to file any material in response to the application for costs by Friday 20 August 2021, and for DCS to file any further material in reply by close of business Friday 27 August 2021.

DCS submissions in originating application

[11] As stated the costs application was made under s.400A being for a costs order against a party in unfair dismissal matters.

[12] The DCS application provided it was seeking costs for reasons including:

•  Mr Bevis made the unfair dismissal application without reasonable cause;

•  Mr Bevis’ application stated DCS had caused him serious mental stress, anxiety, high blood pressure, sleepless nights, and heightened alert to danger and the fear of height, which he claims started on 26 February 2020. Why did it take approximately 5 months to resign and call WHSQ. If he is so scared of heights, why did he choose to undertake training for a Working at Heights license after he resigned;

•  Mr Bevis’ application cost DCS significant time preparing and appearing at the Fair Work Commission;

•  Mr Bevis stated in his closing statement that he was glad that DCS had spent a considerable amount of money, defending an application that had no reasonable prospect of success.

Mr Bevis submissions

[13] Mr Bevis submitted that if DCS were awarded costs the Commission would be giving DCS the green light to disregard Workplace Health and Safety laws.

[14] Mr Bevis also submitted that he believed he was not in the right state of mind to conduct his case as he was on a Work Capacity certificate.

[15] Much of Mr Bevis’ submissions also sought to reagitate issues that were already dealt with in the decision at first instance, or to otherwise criticise the conduct and safety practices of representatives of DCS.

[16] Mr Bevis also relied on positive references from a range of persons that he copied into the body of his submissions.

DCS Reply submissions

[17] In reply DCS submitted as follows:

•  Mr Bevis does not address any justifications for not awarding costs;

•  Mr Bevis’s submission just repeated evidence given at the hearing;

•  The application for unfair dismissal remedy was dismissed and the appeal refused;

•  Mr Bevis stated that “I believe I was not in the right state of mind to negotiate my Defence against DCS”. Perhaps he should have asked for an adjournment or had legal representation;

•  Mr Bevis’s main purpose for the application was to harass, annoy and waste DCS’s time;

•  Mr Bevis’s application was without reasonable cause and had no reasonable prospect of success;

•  The cost application is only for DCS’s legal costs;

•  The application cost DCS significant time, preparing, traveling and appearing at the Commission, for which DCS has not sort costs as yet;

•  Mr Bevis stated in his closing statement that he was glad that DCS had spent a considerable amount of money.

CONSIDERATION

[18] Section 400A reads as follows:

“400A Costs orders against parties

(1) [Where FWC may order costs against a party]

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) [Power exercisable only on application by other party]

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) [Section does not limit FWC’s powers under s.611]

This section does not limit the FWC's power to order costs under section 611.”

[19] Whilst DCS has brought the application under s.400A its initial submission in its originating application appears more directed to a ground arising under s.611(2)(a).

[20] The grounds relied upon by DCS appear to be submissions to the effect that Mr Bevis was acting vexatiously, including the submission referring to a statement made in closing oral submissions by Mr Bevis to the effect that he was glad the proceedings cost DCS money, and also that the main purpose of Mr Bevis application was to harass, annoy and waste DCS’s time.

[21] Despite the costs application being made under s.400A, s.400A makes clear that it does not limit the Commission’s powers under s.611. In any event I am not satisfied on the basis of the submissions of DCS that Mr Bevis made the application vexatiously or without reasonable cause.

[22] It was clear that Mr Bevis genuinely held, and still holds a strong subjective belief that he was forced to resign by a combination of his mistreatment by DCS and that his safety was placed in jeopardy by DCS, despite his unfair dismissal application being dismissed and his failure to obtain permission to appeal.

[23] The ultimate determination of the jurisdictional objection turned on dealing with a range of factual matters that were resolved after hearing evidence from witnesses. Further the nature of the jurisdictional question in this matter can be a complex issue and Mr Bevis was always self-represented.

[24] On the material filed by Mr Bevis before the hearing, part of his case relied on conduct of the Respondent after he resigned and had given notice, and DCS appropriately made the submission as part of its case during the unfair dismissal proceedings that conduct of DCS after Mr Bevis had already resigned could not have contributed to him resigning.

[25] I indicated to Mr Bevis in the course of the hearing that the Respondent’s submission on this point was well made, however it was by no means the totality of Mr Bevis’ case. As is evident from the decision there were a range of events that Mr Bevis relied on that occurred prior to his resignation that formed part of his case.

[26] It was clear that Mr Bevis felt a strong animosity toward the Respondent and its representatives, and it is likely this sense of animosity combined with his coming to a realisation part way through the hearing that the Commission would not give weight to events that occurred after his resignation, probably caused him to make the comment in closing submissions to the effect that he was glad that the proceedings had caused DCS to incur costs.

[27] Considering the comments in their proper context however, they do not detract from Mr Bevis’ genuine belief that he was unfairly dismissed, and I am not satisfied the comments are a basis to be satisfied that Mr Bevis was acting vexatiously. I am also not satisfied the application was made without proper cause given the wide range of factual issues relating to events prior to Mr Bevis resigning that needed to be resolved in order to determine the matter.

[28] In its reply submissions DCS also responded to Mr Bevis’ relying on his claim that he was mentally incapacitated at the time of the hearing as a basis to refuse the costs application. Mr Bevis unsuccessfully relied on this issue as a ground for permission to appeal which was rejected by the Full Bench.

[29] For the same reasons given by the Full Bench for dismissing the argument of incapacity as a basis to be granted permission to appeal, I am also not persuaded it is a basis of itself to refuse the costs application.

[30] DCS has not articulated in its submission’s specific grounds for costs in connection with an unreasonable act or omission of Mr Bevis in connection with the conduct or continuation of the matter.

[31] It is notable however that the s.399A application filed by DCS on 3 March 2021, at a time when DCS was legally represented, raised matters as part of its s.399A application that could form a basis to seeks costs under s.400A.

[32] These grounds included Mr Bevis’ failure to comply with the Commission’s amended directions of 6 November 2020, unreasonable failure to attend a Microsoft Teams hearing on 17 February 2021, and unreasonable failure to attend an in person hearing on 25 February 2021.

[33] Whilst these issues have not been specifically reagitated as part of this costs application, for completeness, and given DCS is self-represented in this costs application I will address them.

[34] In relation to the criticism of Mr Bevis for not filing witness statements and submissions in accordance with the Commissions directions issued on 6 November 2020, Mr Bevis had in October 2020 already filed comprehensive material addressing issues he wished to press as part of his case. It is true that material was not filed as directed by the Commission in November 2020, however Mr Bevis was self-represented, and it seems reasonably clear that occurred because Mr Bevis understood he had already filed material.

[35] It is also true that the material filed by Mr Bevis was not in a conventional form of submissions and witness statements, and in some respects was disjointed and difficult to follow, however this is not uncommon in cases where parties are self-represented in the Commission, and in the particular circumstances of this case does not constitute an unreasonable act or omission.

[36] In relation to the criticism of Mr Bevis concerning the Microsoft Teams hearing of 17 February 2021 that was adjourned on the basis of technical difficulties, Mr Bevis made himself available to participate in the Microsoft Teams hearing and a connection was made with Mr Bevis on that day to participate however for technological reasons the connection was not strong enough to allow Mr Bevis to participate in a meaningful way. I am not satisfied that technological failure constitutes an unreasonable act or omission on the part of Mr Bevis.

[37] The matter was relisted for an in person hearing the following week on 25 February 2021. Mr Bevis did not attend the hearing and claimed that he did not receive the notice of listing sent to him on 17 February. The listing was sent to Mr Bevis at the same email address that Mr Bevis provided on his Form F2 application which was an email address Mr Bevis had sent and received other material from in the course of the proceedings.

[38] On the morning of 25 February 2021 prior to the scheduled commencement of the hearing at 10am my associate contacted Mr Bevis by telephone to confirm his attendance at the hearing. Mr Bevis indicated he was in Caloundra and would be unable to make it to the hearing in Brisbane in time. Mr Bevis sent an email to chambers at 9.13am repeating his claim that he did not receive the new hearing date, and as he was in Caloundra would be now be unable to make it to the hearing in time.

[39] I made a decision on the basis of this information to again adjourn the hearing and DCS and its representative were advised. Unfortunately, this advice was not received in time to prevent Mr Forbes and Mr Kraak travelling into the Brisbane CBD on 25 February 2021 from Burpengary before learning that the hearing had been vacated.

[40] I accept that Mr Bevis should have been aware that a hearing was scheduled for 10am on 25 February 2021, however I am also inclined to accept that his representation that he was unaware of the scheduled hearing was the truth. Mr Bevis gave every impression that he was intent on prosecuting his case, and whilst it has not been accepted that his medical capacity around the relevant time was a basis to grant him permission to appeal, it is still the case that he was under stress at the relevant time and this may have explained his failure to be diligent in monitoring the email sent to him from chambers with the notice of listing for 25 February 2021.

[41] The Commission is afforded some discretion under s.400A in determining whether to award costs. Whilst on the facts it is open for the Commission to award costs in connection with the failure of Mr Bevis to attend for the hearing at 10am on 25 February 2021 because the adjournment was caused by an unreasonable act on his part by failing to attend that morning, in the particular circumstances of this case I am not prepared to exercise the discretion to award costs against Mr Bevis on that basis as I accept his explanation was genuine, and for the other reasons set out in the preceding paragraph.

[42] There was nothing else in the submissions of DCS that would persuade me to award costs against Mr Bevis. The application for costs is dismissed.

COMMISSIONER

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 1   [2021] FWC 2813.

 2   [2021] FWCFB 4150.