David Eghlima and Hamid Eghlima v Winco Systems Pty Ltd - [2013] FWC 2351

[2013] FWC 2351

The attached document replaces the document previously issued with the above code on 9 May 2013.

The document has been edited to correct an error in the reference in the preamble to the relevant matter numbers. This reference has been changed from “(U2011/14390; U2011/14390)” to “(U2011/14390; U2011/14391)”.

Sean Howe

Associate to Deputy President Sams

Dated 15 May 2013

[2013] FWC 2351

FAIR WORK COMMISSION

DECISION

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

David Eghlima and Hamid Eghlima
v
Winco Systems Pty Ltd
(U2011/14390; U2011/14391)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 MAY 2013

Unfair dismissal applications - applications dismissed - costs sought on an indemnity basis - applications vexatious - made with no reasonable cause - no reasonable prospects of success - costs orders appropriate.

BACKGROUND

[1] On 21 December 2012, I published a decision and made associated orders dismissing the applications made, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), by Mr David Eghlima and Mr Hamid Eghlima (the ‘applicants’) for remedies for unfair dismissal; See: David Eghlima and Hamid Eghlima v Winco Systems Pty Ltd [2012] FWA 10836 (the ‘jurisdictional decision’). Shortly stated, I upheld the jurisdictional objection of Winco Systems Pty Ltd (the ‘respondent’) that the applicants had resigned. Consequently, there had been no dismissal at the initiative of the employer and, accordingly, Fair Work Australia (FWA) (as it then was) had no jurisdiction to determine the applications (ss 385(a) and 386(1)). During the course of proceedings, Mr R Moore, Counsel for the respondent, foreshadowed the making of a costs application in the event that FWA dismissed the applications (see para [132] of the jurisdictional decision).

[2] That submission was made good on 4 January 2013, when the respondent’s solicitors made separate costs applications against each of the applicants for some, or all of the respondent’s costs. The costs applications were made pursuant to ss 402 and 611 of the Act, which may be conveniently set out at this juncture as follows:

‘402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.

...

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 ofthe 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.

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: [2013] FWC 2351
Decision Date: 9 MAY 2013

CaseChat Overview and Summary

David Eghlima and Hamid Eghlima brought an action against Winco Systems Pty Ltd in the Federal Circuit Court, seeking to have their dismissals from employment deemed unfair. The defendants, Winco Systems Pty Ltd, contested the claims, and the case revolved around whether the dismissals were unjust and whether the applicants had grounds to seek costs on an indemnity basis. The court was tasked with determining the validity of the applicants' claims and whether the pursuit of costs on an indemnity basis was justified.

The court examined the evidence and submissions to decide whether the dismissals were indeed unfair. It also considered whether the applicants' pursuit of costs on an indemnity basis was reasonable and whether there were prospects of success for the applicants. The court found that the applicants had not established a case of unfair dismissal, and that the pursuit of costs on an indemnity basis was vexatious and without reasonable cause. There were no reasonable prospects of success for the applicants, and the applications were dismissed.

Given the findings, the court ruled that orders for costs on an indemnity basis were appropriate. The applicants had pursued their claims without reasonable cause, and the proceedings were deemed vexatious. The court ordered that the respondents were entitled to costs on an indemnity basis. This decision underscores the importance of substantiating claims and the consequences of pursuing litigation without reasonable grounds.

Orders