Dushanthi Jayamaha v Amelie Housing
[2021] FWC 4919
•28 SEPTEMBER 2021
| [2021] FWC 4919 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dushanthi Jayamaha
v
Amelie Housing
(U2021/1458)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 28 SEPTEMBER 2021 |
Application for costs by employer respondent to unfair dismissal claim – costs orders sought (pursuant to s.400A and s.611 of the Fair Work Act 2009) against applicant who made an unfair dismissal claim – costs orders sought (pursuant to s.401 of the Fair Work Act 2009) against applicant’s representative – costs orders against applicant (employee) dismissed - Commission satisfied that applicant’s representative (Unfair Dismissals Australia) engaged in unreasonable act or omission in respect of the conduct of the matter – discretion to award costs against the applicant’s representative enlivened - costs order made against applicant’s representative.
Introduction
[1] On 22 February 2021, Ms Dushanthi Jayamaha, the First Costs Respondent (FCR), filed an application for an unfair dismissal remedy (UD Application) against Amelie Housing, the Costs Applicant (CA). The matter was heard on 28 April 2021.
[2] On 12 May 2021, I dismissed the UD Application on the ground that the FCR was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (Act) (see [2021] FWC 2848, published 25 May 2021 (UD Decision)).
[3] Post the publication of the UD Decision, the CA made an application for an order as to costs against the FCR pursuant to s.400A and s.611 of the Act. The CA also seeks an order as to costs against the FCR’s paid agent, Unfair Dismissals Australia Pty Ltd t/as Unfair Dismissals Australia (UDA) pursuant to s.401 of the Act.
[4] Following the receipt of submissions and evidence in accordance with Directions made, I held a hearing in Sydney to resolve this Costs Application. Mr Warwick Ryan, Partner,of Hicksons Lawyers, appeared for the CA. Ms Madison Beaumont, paid agent, of Unfair Dismissals Australia, appeared for both the FCR and UDA.
Relevant legislation
[5] The power to award costs under s 611 of the FW Act is limited. It reads:
“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).”
[6] Section 400A of the Act reads:
“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.”
[7] Section 401 of the Act reads:
“401 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for an unfair dismissal remedy has been made under section 394; and
(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and
(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.
(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under this section 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.”
Case law
s.611 generally
[8] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (Church), 1a Full Bench of this Commission identified that the starting point under the Act is that each party will bear its own costs:
“[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:
2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.
[27] In the context of s.570 and its legislative antecedents, courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act.”
[9] In Hansen v Calvary Health Care Adelaide Limited 2 a Full Bench of this Commission stated in relation to s.611 generally:
“[16] … the statutory scheme sets out the relatively circumscribed circumstances in which an order for costs might be found by the Commission to be appropriate in a particular case. It includes the exercise of discretionary power where the Commission is satisfied that one, or more of the circumstances set out in s 611(2), has been established. If such circumstances are established, the Commission, in the broad exercise of its discretion, may make an order that a person/s bear some, or all of the costs of another person, in relation to the application, including on an indemnity basis, or decline to make any order at all.”
[10] In Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko, 3 Deputy President Beaumont noted that:
“Section 611 contains no indication of the considerations which the Commission must take into account in deciding how to exercise its discretion. The discretion conferred is expressed in general, unqualified, terms.” 4
[11] Finally, as a Full Bench of this Commission observed in Compuworld Pty Ltd v On Ni Liu, 5 there is a considerable overlap between the concept of an application being “made … without reasonable cause” in s.611(2)(a), and whether it “should have been reasonably apparent” to an applicant that the application “had no reasonable prospect of success” under s.611(2)(b).6
s.611(2)(a)
[12] In Qantas Airways Limited v Mr Paul Carter, 7 a Full Bench of this Commission identified that it is clear from the terms of s.611 of the Act that the point at which the Commission must determine whether or not an application was made or responded to vexatiously, without reasonable cause, or had no reasonable prospect of success, is when the originating application or response was filed.8
[13] The relevant principles concerning the interpretation and application of s.611(2)(a) were comprehensively stated in Church, and are relevantly summarised as follows:
• An application is not made without reasonable cause simply because the application did not succeed.
• If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.
• An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, is manifestly groundless, or discloses a case where the tribunal is satisfied it cannot succeed. 9
s.611(2)(b)
[14] In relation to s.611(2)(b), a Full Bench of this Commission in Baker v Salva Resources Pty Ltd 10 stated:
“[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.”
[15] In Keep v Performance Automobiles Pty Ltd, 11 a Full Bench of this Commission stated:
“As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.
There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996:
‘unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available’.” 12
s.400A
[16] The Explanatory Memorandum to the Fair Work Bill 2012 is of assistance in understanding s.400A of the Act. It reads:
“168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.
169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.
171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.”
[17] Relevantly, a Full Bench of this Commission stated in Gugiatti v SolarisCare Foundation Ltd: 13
“s.400A is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.”
[and]
“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.” 14
s.401
[18] In Simon Lewis v SGA (1994) Pty Ltd, 15 Deputy President Anderson carefully analysed, in a typically thorough manner, the principles to be applied in respect of s.401 of Act:
“Section 401 of the FW Act deals with the circumstances in which costs orders may be made against lawyers and paid agents for unreasonable conduct in connection with a matter.
Whilst the section does not displace the general statutory proposition that each party bear their own costs in proceedings before the Commission, it sits exclusively within the unfair dismissal provisions of the FW Act. That it was inserted by the legislature by amendment in 2012 after the FW Act (including Part 3-2 and section 611(1) had commenced) it represents a clear indication of legislative purpose that representatives be held accountable for unreasonable conduct in pursuit of unfair dismissal matters. The legislature referred to its 2012 amendments as being a “stronger deterrent”.
In different but analogous circumstances, it has been said by the Federal Court that the power to make such an order must be exercised with care and discretion and only in clear cases.
Stamford advance its application against Unfair Dismissals Australia for costs incurred after a particular date with respect to its conduct of the matter (section 401(1A)(b)). The Commission’s task is to be approached having regard to the purpose and terms of that sub-section:
“After all, the manifest purpose of the provision is to act as a disincentive to lawyers or paid agents granted permission to appear from causing costs to be incurred by other parties through unreasonable acts or omissions. However, such a finding does not inevitably result in the discretion being exercised against the lawyer or paid agent. There may be circumstances in a particular case that would render it unjust to make any award of costs notwithstanding such a finding. The issue is really one of adequacy of reasons.”
Whether a representative has engaged in “an unreasonable act or omission” will depend on the particular circumstances of each case.
That lawyers or paid agents are only able to represent their clients before the Commission with permission (section 596 of the FW Act) is also a relevant contextual consideration. It has been observed by a full bench of the Commission:
“..because the section applies to the actions taken or not taken by a legal representative of a party it seems to us to follow that these actions or omissions by legally qualified and trained people should be measured against a higher standard than that which would apply to an unrepresented party, by virtue of the representative’s training and expertise.”” 16
(footnotes omitted)
Submissions of the parties
[19] Set out at Schedule 1 to this Decision are the relevant written and oral submissions that I have had regard to, and taken into account, in making my findings, conclusions, and ultimate determination in these proceedings.
[20] In my view, it is unnecessary for a decision-maker to dissect or otherwise take a myopic approach to the reasons and findings contained in a primary decision (in this case the UD Decision) when making a determination as to whether or not to award costs. A primary decision speaks for itself and is necessarily read in conjunction with a costs decision, even where the latter does not, or makes no point of, referencing the former.
[21] I have found the CA’s submissions somewhat difficult to follow. In this regard, the CA’s claims for costs are not supported by any draft orders, as against the FCR and/or UDA. Further, in its submissions the CA refers to and relies upon many of the same facts, conduct, and acts or omissions, which are said to enliven my discretion to award costs as against both the FCR and UDA. My reasons following, whilst separated, should also read together to the extent that there might be said to be any cross-over or double-up as to facts, conduct, and acts or omissions.
Consideration
[22] As best as I am able to understand it, the CA relies upon three aspects of the proceedings that it says enliven my discretion to award costs under ss. 400A, 401 and/or 611 of the Act, as follows:
(a) Costs Item 1 (against the FCR) – The act of the FCR making the UD Application, and/or her failure to discontinue the UD Application shortly thereafter (i.e. primarily going to the FCRs contention that she was “forced” to resign) (ss. 400A(1), and 611(2) of the Act); 17
(b) Costs Item 2 (against the FCR) – The failure of the FCR to:
(i) attend or otherwise engage with the conciliation process before the Commission;
(ii) accept an offer of settlement from the CA made on 15 March 2021; and
(iii) to provide particulars of the UD Application, and/or bring material evidence to the hearing (again, primarily going to the FCR’s contention that she was forced to resign (ss. 400A(1) of the Act); 18 and/or
(c) Costs Item 3 (against UDA) – UDA’s Conduct, as a representative of the FCR, in connection with the continuation or conduct of the UD Application (s.401(1A)(b) of the Act), leading up to and concerning both the conciliation and the hearing of the UD Application. 19
Costs Item 1 (against the FCR)
[23] The CA argues that the FCR should have been aware of the lack of substance of the UD Application (at the time of filing, or shortly thereafter):
(a) on the evidence and facts available to them prior to filing; and/or
(b) upon receipt of the Cost Applicant’s F3 response; and/or
(c) having regard to the various communications between the parties in the lead up to the hearing.
[24] However, I accept the arguments of the FCR that she had at least an arguable case, taking her limited evidence and contentions at their highest, at the time of the filing the UD Application (going to the question of “dismissal”, and the alleged unfairness of same). This is especially so given that a finding as to whether a person has been dismissed (pursuant to a forced resignation based upon a “course of conduct”) under s.386 of the Act requires consideration of all of the circumstances of the case by reference to legal principles that, whilst well settled, can produce a range of different outcomes, depending upon findings made flowing from evidentiary contests at a hearing.
[25] I also concur with the FCR’s submission that whilst there was no finding made in the UD Decision that the CA’s conduct (or course of conduct) forced the FCR to resign, more is required before a subsequent finding can be made under s.611 of the Act that the UD Application was made vexatiously, without reasonable cause, or in circumstances where it would have been reasonably apparent (to an Applicant) that their unfair dismissal claim had no reasonable prospects of success at the time it was filed. The criteria in s.611(2)(a) and (b) must be satisfied based upon an assessment of the relevant application as a whole, and cannot be satisfied on a piecemeal basis. 20
[26] Because I have not been persuaded that the UD Application was manifestly untenable, groundless, or wholly unarguable, I am not satisfied that it was made vexatiously or without reasonable cause, or that it should have been reasonably apparent to the FCR that the UD Application had no reasonable prospects of success at the time it was filed, or that it was an unreasonable act for the FCR to bring her claim. 21
[27] I further note that there is nothing to indicate that the FCR holds any real knowledge in matters of employment law, or experience in advocacy or practice and procedure before courts or tribunals. I accept that the FCR genuinely believed that she had been subject to a constructive dismissal, and was relying upon the advice and purported expertise of UDA to bring her UD Application.
[28] In view of the foregoing reasons, I reject the CA’s contention that my discretion has been enlivened (under either ss. 400A or 611 of the Act) to consider the CAs’ claim for costs against the FCR going to or arising from the matters raised concerning Costs Item 1.
Costs Item 2 (against the FCR)
[29] Much of the CA’s written submissions focused upon its view that costs should be awarded based upon:
(a) the FCR’s purported failure to provide notice of her inability to attend, or otherwise attend, the conciliation before the Commission; and
(b) the FCR’s failure to respond to an offer of settlement sent by the CA on 15 March 2021.
[30] The CA’s repetition of and focus on these elements, in my view, is displaced having regard to the events that happened. A review the Costs Respondents’ submissions, and the procedural history of the matter (including by reference to the Commission’s internal electronic records), identifies that:
(a) UDA (on behalf of the FCR) did give notice of the FCRs inability to attend the conciliation organised by the Commission;
(b) UDA (on behalf of the FCR) replied to all communications sent by the Commission requesting that the parties’ consent to a second conciliation conference, as well as providing unavailable dates to assist with the programming of this second conciliation; and
(c) the “offer of settlement” sent by the CA to the UDA on 15 March 2021 stated that the CA would be making no offer of payment to resolve the proceedings.
[31] It is not clear on the evidence, or via a perusal of the Commission’s electronic records, as to why a second conciliation conference was not arranged by the Commission, especially given that both parties consented to same. These circumstances do not provide a basis upon which my discretion would be enlivened to consider an order for costs to be made.
[32] There is no question that ‘walk away’ offers of compromise, stipulating that each party pay their own costs, can (and in many cases do) constitute a “real and genuine” offer of compromise. 22 However, much will come down to the time that such an offer is made, and the relevant circumstances of the proceedings in question. In the circumstances of this case, in my view, the ‘walk away’ offer to settle the UD Application by the CA, as at 15 March 2021, was not a proposal (or offer) giving rise to a finding as to an unreasonable act for its rejection.
[33] In view of the foregoing reasons, I reject the CA’s contention that my discretion has been enlivened (under s.400A of the Act) to consider the CAs’ claim for costs against the FCR going to or arising from the matters raised concerning Costs Item 2.
Costs Item 3 (against UDA)
[34] Section s.401 of the Act sets out circumstances in which the Commission can make a costs order against a party’s representative (lawyer or paid agent). UDA did not challenge the application of s.401 of the Act in this matter. On the evidence, I find that s.401 applies in that each of the requirements under s.401(1)(a) to (c) are satisfied, and that a valid application for costs orders against the UDA has been made by the CA under s.402 of the Act (cf s.401(2) of the Act).
[35] For costs to be awarded against a representative, the Commission must be satisfied that a costs respondent’s representative caused costs to be incurred (by a costs applicant) “because” the representative:
(a) encouraged their client to start, continue or respond to a matter, when it should have been reasonably apparent that their client had no reasonable prospect of success (s.401(1A)(a)); or
(b) engaged in an unreasonable act/s or omission/s in connection with the conduct or continuation of a matter (s.401(1A)(b)).
[36] I accept the submissions of UDA that the CA has provided no direct evidence for a finding to be made under s.401(1A)(a) of the Act. Further, I do not accept that the available evidence enables me to draw an inference that UDA encouraged the FCR to start or continue her UD Application.
[37] However, in my view, the CA has identified compelling reasons for me to be satisfied that UDA engaged in unreasonable acts or omissions in, or in connection with, the conduct of the hearing of the UD Application before the Commission on 28 April 2021. In terms of findings to support my requisite satisfaction in this regard, I find that:
(a) Evidence Act/Omission: the FCR’s purported witness statement, filed on 16 April 2021, as prepared and/or settled by the UDA:
(i) did not engage, or even attempt to engage, with the substance of the CA’s witness evidence; and
(ii) was not in a form able to be tendered at the hearing (notwithstanding that the Commission is not bound to apply the rules of evidence). In short, the FCR’s witness statement was not evidence. 23 Rather, it was a series of broad-brush contentions (or submissions) without evidentiary foundation. This was conceded by Mr Duffy of UDA on 28 April 2021 (who appeared on behalf of the FCR at the hearing). Indeed, Mr Duffy ultimately advised me at the hearing on 28 April 2021 that the only filed material to be relied upon by the Applicant, in terms of evidence, were four documents (a one-page resignation letter, a contract of employment, a one-page medical report, and a two-line email). Apart from the FCR’s resignation letter, the other documents relied upon can only be said to be evidence of factual context, i.e. as opposed to evidence relevant to the resolution of the contested issues of fact between the parties.
Whilst the Commission is not bound by the rules of evidence, it is bound to apply principles of natural justice and procedural fairness. Rules of evidence are essentially rules of procedural fairness. On any view, a decision-maker can hardly rely upon not being bound by the rules of evidence, and revert to admitting inadmissible evidence subject to questions of weight. If evidence is to be given little or no weight in respect of a substantive or contested issue in a proceeding, it cannot be said to be relevant or otherwise helpful to the disposal of the real issues, or the ultimate issue, in such proceedings. Allowing its tender becomes an exercise in futility and nonsense.
(b) Hearing Act/Omission: Mr Duffy’s representation of the FCR (at the hearing on 28 April 2021) was delinquent. In this regard, Mr Duffy did not:
(i) raise any objections to any of the CA’s seven witness statements; 24
(ii) make any oral opening submissions, as to the facts or the law, or otherwise; 25
(iii) seek to cross-examine any of the CA’s four witnesses; 26
(iv) advise the CA, or the Commission, prior to the hearing on 28 April 2021, that the CA’s witnesses would not be required for cross-examination (the CA’s witnesses thus attended the hearing for no purpose); 27
(v) object to any questions during the cross-examination of the FCR; 28
(vi) seek to re-examine his own client, the FCR, despite her being extensively cross-examined; 29 or
(vi) make any oral closing submissions, as to the facts or the law, or otherwise. 30
Whilst it might be readily acknowledged that representatives make forensic decisions as to whether or not opening submissions are to be made, witnesses are to be cross-examined, a witness is re-examined, or valid objections are made to evidence, a representative should never be a bystander or passenger in the conduct of their client’s case. In these proceedings, the CA tendered seven witness statements, totalling around 30 pages of direct witness evidence, plus a further 184 pages of documentary evidence. The notion that there was not one question to be asked of any of the CA’s witnesses in cross-examination, in circumstances where the FCR’s own evidence comprised of 4 documents (totalling 5 pages), beggars belief, especially given the substantial factual contests between the parties.
[38] UDA’s submissions in this Costs Application do not address the matters set out in paragraph [37] of this decision in any substantial way. At the hearing of the Costs Application, Ms Beaumont (employee of UDA, who appeared on behalf of both of the Costs Respondents) stated in oral submissions that the UD Application, at its various stages, had been dealt with by other employees of UDA, one of whom no longer worked for the business, and that she herself was not actually familiar with the actual evidence submitted at the hearing on 28 April 2021 (i.e. despite having the ability to review and consider same prior to the costs hearing).
[39] Ms Beaumont also submitted that Mr Duffy is “a new employee and unfamiliar with what was required, and punishing him for being youthful in this field and inexperienced should not be encouraged by the Commission”. Ms Beaumont continued to explain that “hearings are not our [UDA’s] primary field”.
[40] Contrary to Ms Beaumont’s submissions, in my view, a conclusion that the UDA is liable for the costs incurred in relation to the hearing of the UD Application on 28 April 2021 would not be “punishing” the “youthful” and “inexperienced” Mr Duffy. An award of costs is not a determination based upon punishment, pity or charity.
[41] By Ms Beaumont’s own admission, UDA is an organisation that essentially deigns itself to only represent its clients up to the conciliation stage of proceedings, and is not equipped to deal with the likely (or even potential) eventuality that some of these clients will require appropriate representation at an arbitrated hearing. Again, simply because UDA has a business model that is all bark, but no bite, is not, in my view, a relevant factor to be taken into account in assessing whether my discretion is enlivened under s.401 of the Act, and/or the manner in which such discretion should be exercised.
[42] In my view, the act of the filing of submissions and evidence so lacking in appropriate form and substance on 16 April 2021 (Evidence Act/Omission), and the failure to properly or adequately represent the FCR at the hearing on 28 April 2021 (Hearing Act/Omission), give rise to conduct (individually or combined) that meets the high standard of “relevant delinquency” 31 on the part of UDA so as to constitute an unreasonable act or omission that enlivens my discretion to make an order awarding costs under s.401(1A)(b) of the Act in favour of the CA.
Conclusions and exercise of discretion
[43] I am not satisfied that any of the jurisdictional preconditions to the making of a costs order under ss. 400A and 611(2) have been made out in relation to the FCR. I therefore dismiss the application for an order as to costs against the FCR.
[44] I am satisfied that costs should be awarded against UDA, as the representative of the FCR, under s.401(1A)(b) of the Act.
[45] The CA has filed a Table of Costs (contained at Schedule 2 to these reasons for decision) in accordance with Schedule 3.1 of the Fair Work Regulations 2009 (Cth) (Regulations) (cf. s.403, and Item 12 of Schedule 3 of the Act). Having regard to same, I am satisfied that the costs sought by the CA are limited to those prescribed by the Regulations. I am also satisfied that the costs sought by the CA are less than those costs actually incurred by it (i.e. the solicitor-client costs incurred by the CA are very much in excess of any scheduled costs amount).
[46] UDA has not appealed the UD Decision, nor has it been brave enough to seek to challenge my findings in the UD Decision in these costs proceedings. Of significance is the fact that UDA has not sought to lead any evidence of:
(a) the reasonableness of the conduct (acts or omissions) it has engaged in; and/or
(b) facts which were known to UDA about the FCR, or the instructions the FCR provided to UDA, that are unknown to me, or which, for forensic or other reasons, were not deployed at the hearing on 28 April 2021. In other words, facts which may provide some basis for UDA’s belief as to the viability of the approach taken, or conduct engaged in, being reasonable.
[47] In exercising my discretion to award costs in favour of the CA, and having regard to my findings and conclusions set out in paragraphs [34] to [42] of this decision, I have determined to limit the order as to costs payable by UDA to the CA to only those scaled costs incurred on and after 16 April 2021, 32 being a total amount of $4,669.
Orders
[48] In disposal of these costs proceedings, I make the following Orders (to be published in due course):
A. The application for costs by Amelie Housing against Ms Dushanthi Jayamaha is dismissed.
B. Pursuant to s.401(1A) of the Fair Work Act 2009, Unfair Dismissals Australia Pty Ltd t/as Unfair Dismissals Australia is to pay Amelie Housing (AH) the sum of $4,669 (in respect of costs incurred by the legal representative of AH) by way of electronic banking transfer into AH’s nominated bank account.
C. Order B must be complied with within 14 days of the date of these Orders.
DEPUTY PRESIDENT
Appearances:
Mr Warwick Ryan, Partner, Hicksons Lawyers, for Amelie Housing.
Ms Madison Beaumont, paid agent, Unfair Dismissals Australia, for Ms Dushanthi Jayamaha and Unfair Dismissals Australia.
Printed by authority of the Commonwealth Government Printer
<PR732696>
Schedule 1
Submissions of the CA
[1] The CA made the following submissions in relation to s.611 of the Act:
“Section 611(2)(a) without reasonable cause
1.5 In Walker v Mittagong Sands Pty Limited T/A Cowra Quartz Fair Work Australia (FWA), as the Commission was then, dealt with an application seeking costs under s 611(2)(a)-(b). First, relying on Henderson v Mainpoint Enterprises Australia Pty Ltd, it was noted that the difference between the costs provisions of the Industrial Relations Act 1988 (Cth) (IR Act) and the Workplace Relations Act 1996 (Cth) (WR Act) do not prevent referencing these Acts for interpretation of “without reasonable cause” in the FW Act.
1.6 FWA considered numerous authorities in respect of the test for without reasonable cause, including the following propositions.
(a) Where an applicant’s case was “entirely misconceived” as opposed to merely being unsuccessful, “it is likely that it can be said that the proceeding was instituted without reasonable cause such that a costs award is appropriate.”
(b) “the test of ‘without reasonable cause’ is similar to the test applied by a court on an application for the exercise of the summary power to stay or strike out proceedings,” per Re Christina Hatchett v Bowater Tutt Industries Pty Ltd (No 3) with reference to s 347 of the IR Act.
(c) The test to exercise summary dismissal (as relevant to the test of without reasonable cause) has been expressed as: “‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”
1.7 In Re Joseph Michael Kanan v Australian Postal and Telecommunications Union the Federal Court noted, also with reference to s 347 of the IR Act, that a proceeding is not considered to be commenced “‘without reasonable cause’ simply because it fails.” On considering the authorities the Court noted at [29]:
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where it appears that, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.” (emphasis added)
1.8 In the more recent case of Neil Keep v Performance Automobiles Pty Ltd the Full Bench summarised the approach to answering the question of whether there was reasonable cause:
“The proper construction of s 611(2)(a) was recently considered by a Full Bench in Church v Eastern Health (t/as Easter Health Great Health and Wellbeing (Church)). Church is authority for the following propositions:
(i) The power to order costs pursuant to s 611(2) should be exercised with caution and only in a clear case.
(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s 611(2)(a), simply because his or her argument proves unsuccessful.
(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.
(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.”
Section 611(2)(b) no reasonable prospect of success
1.9 The CA submits that it should have been reasonably apparent to the Costs Respondent that her application had no reasonable prospect of success.
1.10 The approach to considering a finding it should have been reasonably apparent that there were no prospects of success was summarised in Baker v Salva Resources Pty Ltdas:
• ‘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 groundlessor so lacking in merit or substance as to be not reasonably arguable.
1.11 Revisiting Walker v Mittagong Sands Pty Limited T/A Cowra Quartz, FWA considered the test in s 611(2)(b) and how it relates to sub-s (2)(a), concluding on review of the authorities:
(a) No reasonable prospect of success is “lower and wider” than without reasonable cause, which is similar to the test applied to summary dismissal;
(b) Where without reasonable cause is satisfied, it is likely no reasonable prospect of success is satisfied, however not necessarily the reverse;
(c) The FWC “is not to undertake an assessment of whether a certain and concluded determination could be made that the proceedings would necessarily fail.19 The test in para 611(2)(b) is not about whether there is no ‘real’ prospect of success and does not of necessity require that the proceedings were hopeless or bound to fail (by applying a test such as whether an application is manifestly untenable or groundless);”
(d) Full weight must be given to the expression reasonable prospect of success as a whole; and
(e) It is a matter of judgment in all the circumstances, whether an application had no reasonable prospect of success.
1.12 The CA submits that the Costs Respondent’s application under s 386(1)(b) was without reasonable cause, or it was reasonably apparent that the application had no reasonable prospect of success on the basis of the following:
(a) The application was entirely misconceived rather than merely unsuccessful;
(b) The application was so obviously untenable that it could not possibly succeed and manifestly groundless that there was no good cause of action.21 The Costs Respondent’s evidence (DJ Statement):
(i) Was only 9 paragraphs in length, and was not in a form that approached the evidentiary standard.
(ii) Included no conversations included in the statement were in the form of direct speech;
(iii) made general assertions, i.e ‘… I was wrongly blamed for making payments to incorrect bank accounts, despite this only occurring when the supplier did not provide their updated bank account details after they changed banks …’ without recounting what was alleged to have been said, by whom, nor when that was alleged to have happened
(iv) a letter of resignation dated 9 February 2021, which on its face refutes her assertion of constructive dismissal per the authorities Mohazab v Dick Smith Electronics Pty Ltd (No 2)22 and O’Meara v Stanley Works Pty Ltd;23
(v) was based on subjective reasons (lack of support and hostile environment) dating back to 2018 and 2020, with no material evidence or connection to the current circumstances; and
(vi) asserted that her reason for resignation, was ‘I did not feel that my relationship with my managers, Li Ming and Colleen Casey was one of mutual respect and support’; however, this did not meet the requisite standard (see (iv) above) for a constructive dismissal;
(vii) fell far short of the objective test regarding action of the employer with the intent or probable result of ending the employment relationship;
(viii) did not contain any evidence explaining why she persisted in her the role after 4 March 2019 if she was not happy with it;
(ix) did not include statements explains why she did not explore other options, i.e. a workers compensation application or complaint to Safework;
(c) Of the four matters asserted in the DJ Statement as a cumulative basis for termination, viz:
(i) the move from Parramatta office to the Lewisham office;
(ii) the indifference of the CA and its management staff to the Costs Respondent’s injury from April 2019;
(iii) the CA changed the Costs Respondent’s role without asking
(iv) that the two PiP’s were used to victimise her,
the Costs Respondent’s witnesses gave evidence that was directly inconsistent with those propositions [see specific references within the Cost Applicant’s submission’s – Evidence para’s 1-4] and yet the Costs Respondent chose not instruct her representative to cross-examine those witnesses. The Costs Respondent knew of such evidence at the point it was served upon her and yet did not withdraw.
(d) On the Costs Respondent’s own versions of events, the proceeding lacked reasonable cause; and
(e) On an objective basis it was reasonably apparent there was no reasonable prospect of success, when considering all the circumstances, and noting that the threshold of no reasonable prospect of success is lower than without reasonable cause and not requiring that the proceeding was hopeless or bound to fail.” 33
[2] In relation to s.400A of the Act, the CA relevantly submitted as follows:
“2.1 The FWC has the discretion to order costs against the Costs Respondent pursuant to s 400A of the FW Act if satisfied that the Costs Respondent caused those costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter.
2.2 In Somasundaram v Dept of Education & Training, North-Eastern Victoria Region the FWC referred to the Explanatory Memorandum to the FW Act when considering s 400A:
“170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.” (emphasis added)
2.3 In Veal v Sundance Marine Pty Ltd as trustee for Sundance Unit Trust T/A Sundance Marine (Sundance) the Full Bench of the FWC noted that the term “unreasonable act or omission” was a component of s 170CJ of the WR Act:
“Section 170CJ. Commission may order payment of costs
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.”
2.4 The Full Bench in Sundance referred to the decision in Goffett v Recruitment National Pty Ltd, (Goffett) where the Full Bench of the Industrial Relations Commission considered an application for costs under the then applicable s 658(3) of the WR Act:
“658 Commission may order payment of costs
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 643 caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.”
2.5 Sub-section (4) is written in the above terms however applies to representatives, as relevant to paragraph 3, below.
2.6 The Full Bench in Goffett noted that the Respondent did not provide notice it would not be attending conciliation until the Commissioner’s Associate telephoned at the time of the conciliation. Sundance relied on the Commission’s decision in Goffett at [35]:
“… That represents conduct in our view, which caused the Appellant and her representative an unnecessary attendance at the Commission for which we think she should have her costs. The failure to initiate contact with the Commission and/or the Appellant prior to the scheduled start time for the conciliation to inform it or them of the non-attendance of the Respondent was unreasonable. If the act was intentional it would be an unreasonable act. If unintentional it would be an unreasonable omission. There is no evidence that the Respondent’s conduct in this regard was an intentional act. We are satisfied that the Respondent’s conduct in respect of the conciliation on 5 November 2009 was an unreasonable omission which caused the Appellant to incur costs.” (emphasis added)
2.7 The Respondent’s unreasonable omission in respect of the conciliation resulted in an order for the Respondent to pay the Applicant’s legal costs on an indemnity basis for the appearance at the conciliation.
2.8 The Respondent failed to attend a further conciliation, which was aborted shortly prior to the scheduled time, which was also considered unreasonable. No costs were ordered as no costs were incurred.
2.9 The Commission considered the following acts or omissions as relevant to whether the Respondent’s conduct was unreasonable in connection with the conduct of the proceeding:
(a) An assertion regarding the number of employees without particulars or material facts;
(b) Leading the Appellant to believe the Respondent was interested in settling the matter, when the Respondent was gathering evidence for its claim;
(c) Not disclosing that a jurisdictional objection would be pressed; and
(d) Not complying with the timetable for filing, which deprived the Appellant to properly assess her position and “cannot be disputed” as conduct that caused the Appellant to incur costs.
2.10 The Commission went on to order further indemnity costs at [47]:
“The Respondent’s failure to take steps to inform the Appellant of its intentions immediately after the issue of the notice of listing was either a deliberate or reckless act that could not be regarded as anything other than unreasonable. Alternatively, to the extent that the failure might be regarded as an omission, it was equally unreasonable. That those unreasonable acts or omissions caused the Appellant to incur the costs in connection with the conduct of the proceeding is unquestionable. We are satisfied that the Respondent must be ordered to pay the Appellant’s costs of and incidental to the submissions and preparation for arbitration. We allow also the costs on an indemnity basis in respect of the costs application.” (emphasis added)
2.11 The test in Goffett is considered the test for an award of indemnity costs. The Commission relied on Oshlack v Richmond River Council and Australian Transport Insurance Pty Ltd v Graeme Phillips Rd Transport Insurance Pty Ltd:
(a) “in the particular circumstance of a case involving some relevant delinquency on the part of the unsuccessful party, an order is made not for party and party costs but for costs on a ‘solicitor and client’ basis or on an indemnity basis. The result is more fully or adequately to compensate the successful party to the disadvantage of what otherwise would have been the position of the unsuccessful party in the absence of such delinquency on its part,” (emphasis added); and
(b) “there is some special or unusual feature in the case to justify the court exercising its discretion in that way.”
2.12 The Commission concluded at [52], “It seems almost axiomatic that an unreasonable act or omission that causes a party to incur costs in a proceeding should be regarded as “some relevant delinquency”.”
2.13 The Costs Respondent’s conduct in the matter was an unreasonable act if intentional, or an unreasonable omission if unintentional on the basis of the conduct outlined at paragraph 1, and additionally that the Costs Respondent:
(a) Failed to provide notice the conciliation listed for their application on 11 March 2021 at 9:15 am would not be proceeding;
(b) Failed to provide a reason for not advising they could not proceed with the conciliation listed on 11 March 2021;
(c) Did not respond to the Cost Applicant’s representative’s letter of 15 March 2021 attempting to negotiate settlement;
(d) Were put on notice of the CA’s jurisdictional objection and that the application was considered frivolous by the letter of 15 March 2021; and
(e) Failed to provide proper particulars or material evidence in support of their assertions regarding constructive dismissal.
2.14 The Costs Respondent’s conduct outlined above caused the CA to incur costs for:
(a) Preparation and attendance at conciliation on 11 March 2021;
(b) Preparation of witness statements;
(c) Preparation of submissions;
(d) Attendance at the hearing on 28 April 2021; and
(e) Preparation of the Application for Costs and submissions.
2.15 Following Sundance and Goffett it is submitted that the FWC has the discretion to order indemnity costs due to the Costs Respondent’s unreasonable conduct causing the CA to incur costs, being circumstances involving “some relevant delinquency,” per the test for indemnity costs. 34
[3] In relation to s.401(1A) of the Act, the CA relevantly submitted as follows:
“3.3 In the current circumstances, s 401 applies because:
(a) The Costs Respondent’s Application was made pursuant s 394 of the Act;
(b) Both parties engaged a representative; and
(c) The CA was required to seek permission to be represented, which occurred by way of the Form F53 dated 14 April 2021 filed with the Commission.
3.4 The Costs Respondent’s representative was put on notice that the CA was incurring costs to respond to the application under section 394 by way of:
(a) The Form F3 Employer Response to Unfair Dismissal Application filed 8 March 2021 listing the CA’s representative as Hicksons Lawyers;
(b) Correspondence from the CA’s representative to the Costs Respondent’s representative by email dated 15 March 2021;
(c) Service of the witness statements of Li Ming, Bernie Murphy and Colleen Casey by the CA’s representative on the Costs Respondent’s representative by email on 1 April 2021;
(d) Service of the witness statement of Li Ming and submissions by the CA’s representative on the Costs Respondent’s representative by email on 6 April 2021; and
(e) Service of the witness statements of Li Ming, Bernie Murphy and Margaret Paheerathan and further submissions by the CA’s representative on the Costs Respondent’s representative by email on 26 April 2021.
3.5 The Costs Respondent’s representative caused the Cost Applicant to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter pursuant to s 401(1A).
3.6 In Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe (Khammaneechan), FWA, as the Commission was then, when interpreting s 401 of the FW Act prior to the 2013 amendments referred to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):
“1610. Subclause 401(1) allows FWA to make costs orders against lawyers and paid agents in two sets of circumstances. The first is where they have caused costs to be incurred by the other party to the matter because they encouraged a person to commence or continue a matter when it should have been reasonably apparent there were no reasonable prospects of success. The second circumstance is where they have caused costs to be incurred by the other party because of an unreasonable act or omission in conducting or continuing the matter.
1611. These provisions are designed to deter lawyers and paid agents from encouraging others to bring speculative unfair dismissal claims, particularly claims they know have no reasonable prospects of success, or to unreasonably encourage a party to defend a claim or make a jurisdictional argument where there is no prospect of the argument succeeding.” (emphasis added)
3.7 In Deeney v Patrick Projects Pty Ltd, the FWC when considering security for costs followed the approach to costs in Khammaneechan and further noted:
“However section 401(1A)(b) of the Act which was added in January 2013 concerns unreasonable acts or omissions of the representative in connection with the conduct or continuation of a case. This new provision could arguably apply in circumstances where there is evidence that a representative has failed to discourage a party continuing with a claim in for example a situation where there is information that demonstrates the case cannot succeed.” (emphasis added)
3.8 In Sundance the Full Bench of the FWC dealt with costs applications under ss 611 and 401 of the FW Act (as it was in 2013). The Full Bench noted that there is a “higher standard” that applies to the actions of representatives in relation to section 401:
“… it seems to us to follow that actions or omissions by legally qualified and trained people should be measured against a higher standard than that which would apply to an unrepresented party, by virtue of the representative’s training and expertise.”
3.9 The Full Bench in Sundance referred to the decision in Goffett, where the Full Bench considered costs under s 170CJ(3) of the WR Act where the Respondent’s failed to attend conciliation. Whilst s 170CJ(3) applies to the party, not the representative, the Full Bench in Sundance nonetheless considered the construction of “unreasonable act or omission” in s 170CJ(3) as applicable to the construction of the term in s 401(1) of the current Act.
3.10 The Full Bench applied the authority as it related to costs against representatives per the then s 401 FW Act:
“Section 401 Costs orders against lawyers and paid agents
401(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:
… (b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.” (emphasis added)
3.11 Whilst the FWC was not satisfied that the representatives undertook conduct that amounted to an unreasonable act or omission, it is relied on as authority of the principles of an unreasonable act or omission in relation to the current s 401(1A)(b), which is written in equivalent terms.
3.12 The Costs Respondent’s representative’s conduct is considered in act or omission in connection with the conduct or continuation of the matter on the basis of the following:
(a) Section 401 is designed to deter representatives from bringing speculative unfair dismissal claims, particularly where there are no reasonable prospects of success. On the Costs Respondent’s own evidence she did not have reasonable prospects of success in proving she was dismissed pursuant to s 386(1)(b) of the FW Act, where she:
(i) resigned without warning (or in response to the employer’s conduct);
(ii) for subjective reasons (lack of support and hostile environment) of a historical nature, which lacked connection to the current circumstances;
(iii) falling far short of the objective test regarding action of the employer with the intent or probable result of ending the employment relationship; and
(iv) the only evidence provided with her application was her letter of resignation dated 9 February 2021, which on its face refutes her assertion of constructive dismissal per the authorities Mohazab v Dick Smith Electronics Pty Ltd (No 2) and O’Meara v Stanley Works Pty Ltd.
(b) Circumstances where a representative fails to discourage a party from continuing a claim where information indicates the case cannot succeed may be considered an unreasonable act or omission. We infer that the Costs Respondent’s representative failed to discourage the Costs Respondent from pursuing a claim that could not succeed based on:
(i) the Costs Respondent’s own evidence in respect of s 386(1)(b) and her resignation;
(ii) the CA’s submissions and evidence regarding the jurisdictional objection; and
(iii) the failure of the Costs Respondent to file material evidence of constructive dismissal, or evidence to refute the CA’s evidence.
(c) There is a higher standard for the conduct of the Costs Respondent’s representative, as compared to the Costs Respondent, by virtue of their training and expertise. The Costs Respondent’s representative was responsible for advising the Costs Respondent as to the preparation of her case and prospects of success.
(d) The Costs Respondent’s representative’s conduct in the matter was an unreasonable act if intentional, or an unreasonable omission if unintentional on the basis that the representative:
(i) failed to provide notice they would not be attending the conciliation listed for their client’s application on 11 March 2021 at 9:15 am;
(ii) failed to provide a reason for not attending or advising they were not attending the conciliation listed on 11 March 2021;
(iii) did not respond to the Cost Applicant’s representative’s letter of 15 March 2021 attempting to negotiate settlement;
(iv) was put on notice of the CA’s jurisdictional objection and that the application was considered frivolous by the letter of 15 March 2021; and
(v) failed to provide proper particulars or material evidence in support of the Costs Respondent’s assertions regarding constructive dismissal.
3.13 The representative’s conduct outlined above caused the CA to incur costs for:
(a) Preparation and attendance at conciliation on 11 March 2021;
(b) Preparation of witness statements;
(c) Preparation of submissions;
(d) Attendance at the hearing on 28 April 2021; and
(e) Preparation of the Application for Costs and submissions.
3.14 Following Sundance and Goffett it is submitted that the FWC has the discretion to order indemnity costs due to the Costs Respondent’s representative’s unreasonable conduct causing the CA to incur costs, being circumstances involving “some relevant delinquency,” per the test for indemnity costs.” 35
[4] Mr Ryan, on behalf of the CA, also relevantly made the following oral submissions at the hearing:
“PN17 There was no evidence put forward by the Costs Respondent in relation to the question of the move…in her witness statement of April 2019 and certainly as the matter unfolded on the day, August 2019, there was simply no evidence and again that was 18 months…before the resignation by the Costs Respondent...
PN18 In relation to the event, as it were, that immediately led up to the termination, which was the PIP [Performance Improvement Plan], she made no effort to put on evidence to disclose why that particular measure was undertaken by the Respondent in a vindictive or premeditated way to lead her to cause her to resign. That was simply not a feature. That was not a feature of her evidence at all. Her case lacked evidence completely in relation to the required criteria that was necessary for her to be successful.
PN18 Furthermore, this was exacerbated during…the course of the matter presenting and unfolding…The CA put on no less than seven different witness statements to a total of 30 pages. The Costs Respondent put on a one-page statement which was essentially a series of assertions that did not descend into particulars in any way. They did not map out in date and place conversations which she’d had pertaining to the matters that I've referred to before. There’s simply no attempt by the Applicant to put on meaningful evidence to support her allegations in relation to the fact that she met the threshold for constructive dismissal. She simply put on a - you know, a one-page precis I guess of her case.
…
PN25 …, again there was no evidence put forward by the Costs Respondent of any conversations or complaints or issues pertaining to that past 4 March 2019. Again, nearly two years prior to the termination.
PN26 In relation to the application against the Respondent’s Representative, we say that indeed as set out in our submissions the standard - sorry, the standards which are held in the highest standards, they of all people knew that you actually have to have evidence to support a claim. You simply cannot put on an application based on simple assertions and they proceeded to do that, and even when met with significant evidence that was provided by us in the form of seven different witness statements to a total of 30 pages without annexures and significantly more with annexures, they didn't put on any evidence in reply to challenge that, and furthermore when we got to the hearing they did not cross-examine our witnesses in that regard.
PN27 Now that would have been a matter that would have been within their knowledge, certainly at the point when they were in receipt of our witness statements. So, we say that the response – the Costs Respondent’s Representatives had an obligation at the very least, at the point of receipt of our statements if they weren't going to cross-examine on it to withdraw from the proceedings. And if their client did not withdraw, they should have withdrawn from the proceedings rather than continue on. Because there was simply no prospect of success in the face of unchallenged evidence by the three - sorry, by the four different witnesses that the CA filed with the Fair Work Commission setting out in detail addressing the matters that were set out in the application in detail.
PN28 They would have known at that point that they were not going to cross-examine - they were not going to challenge that evidence and so therefore they should have either personally withdrawn from the proceedings or certainly be inviting the Applicant to withdraw from the proceedings in the face of that unchallenged evidence. I think that addresses - that concludes any further comments that I particularly want to make over and above the detailed submissions that we've provided to you.
…
PN64 …the statement…lies at the heart of this issue for us…My first comment in relation to it is it's in the form of what a junior representative would take as a file note from the first phone call from the Applicant. It is in no way a statement that should be put before the Commission, because it does not set out or meet any of the criteria. I appreciate that the Fair Work Commission is not a Court and has some discretion in relation to the acceptance of evidence but there was no attempt at any point in that document to set out in direct speech conversations that may or may not have happened at that point.
…
PN72 … they tendered - they put in evidence a document which was so insubstantial, that was so lacking in any form of - any semblance of information that would meet the evidentiary standard that the Commission was put in a position where they had no alternative but to dismiss the claim. So, you know, it's all very well for the Respondent to say that they didn't take a step in that regard, they absolutely did take a step. Their omissions in this case were profound. This was utterly unprofessional what they put forward to the Commission on this occasion and it occasioned enormous cost to our client.
…
PN76… I don't think the response of the Costs Respondent’s Representative really addresses that primary failing and to simply - at the end of the day they are a commercial operation. It’s not whether they have a junior employee dealing with a matter or not. If anything, that is more of an indictment on the way they're conducting themselves in these particular circumstances. It was an action that they took, and it was wholly inadequate, and it occasioned my client significant costs.”
Submissions of Costs Respondents
[5] The Costs Respondents made the following general submissions:
“1.1.3 The Costs Respondent and the Costs Respondent’s representative submit that at all material times:
a) The Costs Respondent made the Unfair Dismissal application (U2021/1458) with reasonable cause;
b) The FWC cannot be satisfied that the Costs Respondent made her application without a reasonable prospect of success;
c) The Costs Respondent did not cause costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter;
d) The Costs Respondent’s representative did not cause costs to be incurred because of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
1.1.4 The Costs Respondent and Costs Respondent’s representative seek for the Costs Application to be dismissed.
2.1.1 On, or shortly prior to, 9 March 2021, the Costs Respondent’s representative (‘Unfair Dismissals Australia’) became aware that they were unable to attend conciliation to deal with the Unfair Dismissal application U2021/1458 (‘Dismissal Application’).
2.1.2 Unfair Dismissals Australia informed the dismissal applicant that she could proceed on her own accord or seek an adjournment based on the availabilities of Unfair Dismissals Australia. The dismissal applicant instructed her representative to seek an adjournment of the conciliation so she could be represented at a rescheduled conciliation.
2.1.3 On 9 March 2021, the Costs Respondent’s representative requested that the conciliation to deal with the Dismissal Application be rescheduled.
2.1.4 Unfair Dismissals Australia notified the FWC by email that they were unable to attend conciliation due to the representative’s prior commitment to another conciliation scheduled with the FWC.
2.1.5 The Consultant named to represent the Applicant at conciliation was, at the time, the only consultant employed by Unfair Dismissals Australia. The Consultant was scheduled for conciliations in two separate matters at 9:15am on 11 March 2021, including the Dismissal Application.
2.1.6 In light of the request to reschedule, Unfair Dismissals Australia provided a further available date for the conciliation to take place. Attached is a copy of the email sent by Unfair Dismissals Australia to the FWC dated 9 March 2021 at 8:42am (Annexure 1).
2.1.7 The FWC notified the Costs Respondent’s representative that the request for an adjournment of the conciliation on 11 March 2021 was rejected.
2.1.8 On 12 March 2021, the FWC confirmed with Unfair Dismissals Australia and the dismissal applicant that the conciliation did not proceed on 11 March 2021. The FWC noted that it had written to the dismissal respondent requesting confirmation of their consent to a second conciliation. The FWC requested that the dismissal applicant provide unavailable dates for the second conciliation by close of business 15 March 2021. Attached is the email sent by the FWC to the dismissal applicant and Unfair Dismissals Australia dated 12 March 2021 at 12:44pm (Annexure 2).
2.1.9 On 12 March 2021, Unfair Dismissals Australia notified the FWC that the Applicant of the Dismissal Application consented to a second conciliation. Unfair Dismissals Australia provided a list of unavailable dates for the second conciliation. Attached is the email sent by Unfair Dismissals Australia to the FWC dated 12 March 2021 at 12:51pm (Annexure 3).
2.1.10 The CA has provided evidence of 15 March 2021, whereby Hicksons Lawyers wrote to Unfair Dismissals Australia noting that the dismissal respondent will not be making a payment offer. Hicksons Lawyers noted that their client was still willing to attend a conciliation.
2.1.11 Notwithstanding the correspondence referred to above, showing the intention of Unfair Dismissals Australia and the dismissal applicant to attempt to resolve the matter at a second conciliation, the parties were notified by FWC Chambers that the matter was progressing to a hearing. Attached is a copy of this email from the FWC dated 19 March (Annexure 4).
2.1.12 At all material times, the Costs Respondent consented to a second conciliation.
2.1.13 At all material times, the Costs Respondent’s representative followed appropriate procedure in notifying the FWC of their inability to attend the first conciliation. The Costs Respondent’s representative requested a rescheduling of the conciliation in reasonable circumstances and followed the directions of the FWC in providing dates of availability.
2.1.14 The Costs Respondent’s representative handle 300-400 matters through the FWC annually. The Costs Respondent’s representative attend conciliations held by the FWC at every opportunity to resolve matters, and do so over 90% of the time.” 36
[6] In relation to s.611 of the Act, the Costs Respondents made the following submissions:
“3.1.4 The Costs Respondent submits that the ‘high bar’ has not been met and the FWC cannot be satisfied that the Costs Respondent made an application without reasonable cause.
3.1.5 The CA alleges that it should have been reasonably apparent to the Costs Respondent that she had no reasonable prospects of success and, on the basis of such a finding, alleges that the Costs Respondent instituted proceedings without reasonable cause.
3.1.6 In Sun Health Foods Pty Ltd v Ms Suman Verma and Sun Health Foods Pty Ltd v Just Relations – Consultants (‘Sun Health Foods’), an application for a costs order in relation to Ms Verma’s application for an unfair dismissal remedy was dismissed. Ms Verma’s dismissal application required a finding as to whether the dismissal was at the initiative of her employer. Ms Verma and her representative argued that there were circumstances which led to the deterioration of the employer-employee relationship, and the very fact that the FWC did not find that the dismissal was at the employer’s initiative did not mean that the dismissal application was entirely unreasonable or without prospects of success.
3.1.7 In Sun Health Foods, Commissioner Wilson held:
‘It is not inconceivable based upon the assertions and facts as set out in her application, outline of submission and witness statement that her case could have been within the criteria set out in O’Meara v Stanley Works Pty Ltd and found to be a termination at the initiative of the employer. In the end, there was insufficient evidence that would assist her case, and no corroborating evidence before the Commission that would allow a finding to be made, on the balance of probabilities, that she had no effective or real choice but to resign. However, that is not to say that her case, at the time it was commenced, had no reasonable prospect of success because it was manifestly groundless or that it could not possibly succeed.’
3.1.8 In her dismissal application, the Costs Respondent submitted a course of conduct which showed the deterioration of her relationship with the CA. The Costs Respondent submitted that there were two major changes to her employment which were unreasonable in the circumstances and which left her with no real choice but to resign:
a) The dismissal applicant was forced to change work locations, despite her employer knowing that she was recovering from knee surgery and would have difficulty attending the new work location given the amount of steps near the new work office.
i) The dismissal applicant denied that her employer consulted her about travelling to and from work or that her employer offered to reimburse Uber costs for the dismissal applicant to attend the new work site.
ii) The dismissal applicant submitted that her employer reassured her that the location change was to only be for a one month trial.
iii) The dismissal applicant submitted that there was a subsequent expectation of the employer that the dismissal applicant would attend the new worksite permanently, notwithstanding that the dismissal applicant had notified her employer of her injury and that she would be unable to sustain attending the new work site.
b) The dismissal applicant’s position was changed by her employer without consultation, and she was subsequently performance-managed for alleged underperformance in her ‘new’ position without any notification of her new position description or KPIs.
i) The dismissal applicant submitted an email sent to her employer, evidencing her dissatisfaction with the new position.
ii) The dismissal applicant submitted a payslip dated 3 February 2021, six days prior to the end of her employment, showing her position title remained listed as ‘Assistant Accountant’, indicating the lack of clarity around her position.
3.1.9 Whether or not the course of conduct submitted by the Costs Respondent in her dismissal application constitutes a forced resignation under s386 of the FW Act is a question of both fact and law.
3.1.10 The fact that the commission did not find that the dismissal applicant was forced to resign, does not mean that the Dismissal Application was made vexatiously, without reasonable cause or without reasonable prospects of success.
3.1.11 The dismissal applicant submitted a course of conduct by the employer, being both the change of the employee’s work location and position in circumstances where the dismissal applicant reasonably believed she had no choice but to resign.
3.1.12 At the time the Dismissal Application was made, the dismissal applicant had reasonable prospects of success. Accordingly, the Costs Respondent submits that the order for costs against them be dismissed.” 37
[7] In relation to s.400A of the Act, the Costs Respondents made the following submissions:
“4.1.1 The CA alleges that the Costs Respondent caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter, being that:
a) The Costs Respondent allegedly proceeded with the Dismissal Application where it ought to have been apparent that the claim had no reasonable prospects of success; and
b) The Costs Respondent allegedly:
iii) Failed to provide notice the conciliation listed for their application on 11 March 2021 at 9:15 am would not be proceeding;
iv) Failed to provide a reason for not advising they could not proceed with the conciliation listed on 11 March 2021;
v) Did not respond to the Cost Applicant’s representative’s letter of 15 March 2021 attempting to negotiate settlement;
vi) Were put on notice of the CA’s jurisdictional objection and that the application was considered frivolous by the letter of 15 March 2021; and
vii) Failed to provide proper particulars or material evidence in support of their assertions regarding constructive dismissal.
4.1.2 The Costs Respondent relies on submissions made from paragraphs 3.1.1-3.1.12, rejecting the assertion that it ought to have been apparent that the Dismissal Application had no reasonable prospects of success.
4.1.3 The Costs Respondent refers to the submissions made from paragraphs 2.1.1 – 2.1.14 and the relevant annexures attached, namely that:
a) The Costs Respondent instructed her representative to request an adjournment of the conciliation scheduled for 11 March 2021, upon learning that her representative was unable to attend conciliation.
b) The Costs Respondent instructed her representative to provide availabilities for a rescheduled conciliation, and upon the FWC’s rejection of the adjournment, the Costs Respondent instructed her representative to notify the FWC of her consent to a second conciliation and of her representative’s availability to represent her at a second conciliation.
4.1.4 The Costs Respondent did not respond directly to the letter from the Cost Applicant’s representative dated 15 March as it was not viewed as a genuine attempt to negotiate settlement;
a) The letter stated that the dismissal respondent would not be making a payment offer and would be willing to attend a second conciliation; and,
b) The Costs Respondent was, at this time, awaiting confirmation from the FWC that the CA consented to a second conciliation. Given that the CA had indicated that they were willing to attend a second conciliation by letter, and that the FWC had notified the Costs Respondent that the FWC were awaiting confirmation from the CA as to such consent, the Costs Respondent did not respond to this letter as she was under a reasonable impression that a second conciliation to negotiate settlement was in the making.
c) On 19 March, the FWC informed the Costs Respondent that the matter was listed for hearing, indicating that the CA did not consent to a second conciliation.
4.1.5 The Costs Respondent rejects that, in light of the jurisdictional objection, the Dismissal Application was frivolous. The Costs Respondent relies on submissions made from paragraphs 3.1.1-3.1.12, noting the reasonable grounds upon which the Dismissal Application was made.
4.1.6 The Costs Respondent rejects that she failed to provide proper particulars or material evidence in support of her assertions regarding constructive dismissal. The Costs Respondent relied on:
a) A Statement of Evidence;
b) The Employment Contract outlining her position and work location;
c) Payslips which indicated her position title;
d) The resignation letter which outlines the reasons as to her resignation;
e) The operation report which evidenced that the Applicant was recovering from knee surgery when she was relocated to the new work location.
4.1.7 This evidence was provided in support of the grounds of the Dismissal Application, namely referred to at paragraph 3.1.8 above.
4.1.8 The Costs Respondent rejects that she engaged in unreasonable conduct causing the CA to incur costs, nor that her conduct involved a level of delinquency alleged by the CA.
4.1.9 At all material times, the Costs Respondent instructed her representative appropriately, followed the directions of the FWC with respect to further conciliation opportunities, and was reasonably placed to not respond to the letter dated 15 March.
4.1.10 The Costs Respondent maintains any costs order made against her should be dismissed.” 38
[8] In relation to s.401 of the Act, going to the issue of whether or not the UDA (as a paid agent), should also be ordered to pay the CA’s costs, the UDA made the following submissions:
“5.1.1 The CA alleges that the Costs Respondent’s representative failed to discourage its client from continuing a claim where information indicated that the case cannot succeed.
5.1.2 In Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café, it was held that ‘encouraging’ a person to start, continue or respond to a matter requires a ‘positive act’ on the part of the paid agent, not merely an absence of discouragement.
5.1.3 At no time did the Costs Respondent’s representative encourage the Costs Respondent to start, continue or respond to her matter.
5.1.4 Prior to the commencement of the Dismissal Application, and again upon receipt from the FWC that the Dismissal Application was listed for hearing, the Costs Respondent’s representative advised the Costs Respondent that her resignation formed a jurisdictional issue which is a high bar to pass.
5.1.5 Throughout the period of the dismissal claim, the Costs Respondent’s representative reminded the Costs Respondent of the inherent difficulties in dealing with jurisdictional issues, including purported forced resignation. The Dismissal Application and subsequent arbitration commenced on the basis of an informed decision of the inherent difficulty involved in dealing with jurisdictional issues. This ultimate decision was based on the course of conduct outlined from 3.1.8-3.1.12 above.
5.1.6 The Costs Respondent’s representative relies on the decision in Sun Health Foods, where it was held that a decision made against an employee with respect to forced resignation did not mean that the dismissal had manifestly no grounds of being held a dismissal at the initiative of the employer.
5.1.7 Notwithstanding the FWC’s findings with respect to the Costs Respondent’s resignation, on the facts of the matter, an employer unilaterally altering an employee’s contract to their detriment, particularly in an environment not conducive to the recovery of their injury, and unwarranted disciplinary action resulting from such unilateral changes, could, in some circumstances, be found to be a dismissal at the initiative of the employer. The Dismissal Application therefore cannot be regarded as completely unreasonable or without any prospects of success, and on the basis of informing the dismissal applicant as to the inherent difficulties of the jurisdictional objection, the Costs Respondent’s representative did not err in following instructions of the Costs Respondent to proceed.
5.1.8 In Rainshield Roofing Pty Ltd T/A Rainshield Roofing v Peter Paerau and Garry Dircks T/A Just Relations – Consultants (‘Rainshield Roofing’), Commissioner Wilson noted:
‘a conclusion that an application ‘had no reasonable prospects 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’.
5.1.9 In Rainshield Roofing, the representatives of the respective dismissal applicant had refused multiple offers of settlement to continue the case and orders for costs were granted.
5.1.10 The Costs Respondent’s representatives maintain that no offers of settlement were unreasonably refused with respect to the Dismissal Application, and with reference to the grounds of the Dismissal Application listed at paragraph 3.1.8, the Dismissal Application cannot be held to be manifestly untenable or groundless.
5.1.11 The CA alleges that the Costs Respondent’s representative unreasonably:
a) Failed to provide notice the conciliation listed for their application on 11 March 2021 at 9:15 am would not be proceeding;
b) Failed to provide a reason for not advising they could not proceed with the conciliation listed on 11 March 2021;
c) Did not respond to the Cost Applicant’s representative’s letter of 15 March 2021 attempting to negotiate settlement;
d) Were put on notice of the CA’s jurisdictional objection and that the application was considered frivolous by the letter of 15 March 2021; and
e) Failed to provide proper particulars or material evidence in support of their assertions regarding constructive dismissal.
5.1.12 We refer to submissions made at paragraphs 2.1.1 - 2.1.14, and again summarised at 4.1.3 - 4.1.4, outlining the circumstances in which the Costs Respondent’s representative became aware of their inability to attend conciliation on 11 March 2021, sought instructions from its client with respect to a second conciliation and complied with subsequent directions made by the FWC accordingly.
5.1.13 We refer to submissions made at paragraph 4.1.4 above, outlining the reasonable circumstances under which we were instructed to not respond to the letter from Hicksons Lawyers dated 15 March. Given we were awaiting confirmation from the CA as to their consent to a second conciliation, and later received notice that the matter was listed for hearing, it was reasonable in the circumstances to simply advise our client of the risks, costs and processes involved in arbitration, which was done so.
5.1.14 With respect to determining whether circumstances involve some relevant delinquency, Justice Sheppard said in Colgate-Palmolive Co v Cussons Pty Ltd:
‘... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion [to award indemnity costs]. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J- Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724(Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records)’
5.1.15 At all material times, the Costs Respondent’s representative’s conduct was absent of any misconduct which caused loss of time to the Commission, it complied with directions set by the Commissioner, it had no ulterior motive in commencing the proceedings, there was no undue prolongation, nor an unreasonable refusal of any offers made to the Costs Respondent.
5.1.16 The Costs Respondent’s representative categorically denies that it acted in any way that may be considered delinquent and seeks for the costs order against it to be dismissed.” 39
[9] Ms Beaumont, on behalf of the Costs Respondents, also relevantly made the following oral submissions at the hearing:
“PN51 The CA has failed to show any direct evidence that Unfair Dismissals Australia directly encouraged the Costs Respondent in this matter to lodge and continue with the application, as the jurisdictional issues were discussed at length.
PN52 In relation to the unreasonable act or omission of the representative in connection with the conduct or continuation of the matter, there was no unreasonable act of omission conducted. Unfair Dismissals Australia put the Commission on notice of any inability to attend the conciliation. Amanda Both who was the representative at the time was the only full-time employee and consultant handling claims, routinely - Unfair Dismissals Australia routinely handle matters where those applicants and respondents are unable to attend conciliations on particular days and provide notice of such, sometimes at the 11th hour but do not give rise to a myriad of costs applications.
PN53 Unfair Dismissals Australia provided the Commission with emails which are attached to the Costs Respondent’s response as Annexures, and these emails document our intentions to attend a second conciliation and that we favoured a settlement over hearing. However, a second conciliation was not scheduled by the Commission. At no time did the CA propose a settlement agreement to us. The only communication we received was indicative of a no offer of settlement and was nothing more than threatening. There was no good faith in attempt at negotiating the matter. The CA made it quite clear that they were either going to pay nothing or to arrange an attempt to retrieve costs and Unfair Dismissals were awaiting the confirmation from the Commission in relation to a second conciliation at this stage.
PN54 The CA has failed to provide evidence in relation to Unfair Dismissals Australia actively encouraging the Costs Respondent to lodge or continue with her claim. At all material times the Costs Respondent instructed her representative appropriately and followed the Directions of the Commission to further conciliation opportunities and was reasonably placed not to response to a letter from the CA dated 15 March, as it was not viewed as a genuine attempt to negotiate the settlement and the Costs Respondent was waiting for further clarification from the Commission in relation to a second conciliation in an attempt to settle the matter.
PN55 We maintain that any costs order made against the Costs Respondent should be dismissed and at all material times the Costs Respondent’s Representative’s conduct was absent of any misconduct which could result in the loss of time to the Commission. All directions of the Commission were complied with and there were no ulterior motives in commencing the proceedings and there were no undue (indistinct) or unreasonable refusal of any offers made to the Costs Respondent.
PN56 So to reiterate, Unfair Dismissals Australia complied with all Directions issued by the Commission and to that extent there was no misconduct or delinquency on our part that would give rise to any indemnity of costs being awarded.
…
PN58 … I didn’t handle the initial Hearing, and Amanda Both no longer works with the company, so I’m only relying upon the submissions that we’ve already filed and so I’m not too familiar with the actual evidence as such which was submitted in the initial hearing. But to my knowledge we submitted the appropriate evidence pertaining to the dismissal Applicant’s injury and the change of employment location and her duties, which reflected an accommodation of her injury recovery and that it merely wasn’t favoured by the Commission, not that her case was presented with or in absence of evidence.
…
PN74 …The individual which had written this witness statement or at least assisted in writing the witness statement was a new employee and unfamiliar with what was required but punishing him for being youthful in this field and inexperienced should not be encouraged by the Commission. Again, I've just had the statement sent to me. It is on the Fair Work Commission’s template; I'm not too sure exactly what Mr Ryan is referring to by it being invalid as it is a Commission template. I just want to clarify that as a company, Unfair Dismissals Australia do 400 conciliations a year. Hearings are not our primary field, I should say, so I just wanted to clarify that point.”
Schedule 2
1 [2014] FWCFB 810, 240 IR 377.
2 [2016] FWCFB 8162.
3 [[2021] FWC 4632.
4 Ibid, at [33].
5 [2021] FWCFB 1048.
6 Ibid, at [9]-[14].
7 [2013] FWCFB 1811, at [20].
8 See also Mitford Investments Pty Ltd ATF The JJG Trust T/A Integro Private Wealth v Rick Adaszko [[2021] FWC 4632, at [39], and Oz & Kosaroglu v Amity College Australia Limited [2021] FWC 5041, at [37]-[38].
9 [2014] FWCFB 810, 240 IR 377, at [23]-[33].
10 [2011] FWAFB 4014, 211 IR 374.
11 [2015] FWCFB 1956.
12 Ibid, at [18]-[19].
13 [2016] FWCFB 2478.
14 Ibid, at [43] and [61].
15 [2020] FWC 2229.
16 Ibid, at [91]-[96].
17 As set out in CA’s Submissions, 2 June 2021, at [1.12]. See also transcript references extracted in Schedule 1 to this Decision.
18 Ibid at [2.13]. See also transcript references extracted in Schedule 1 to this Decision.
19 Ibid at [3.5], and [3.12]. See also transcript references extracted in Schedule 1 to this Decision.
20 Ibid.
21 The fact that the Costs Respondents’ application was not successful does not constitute a sufficient basis, in and of itself, upon which costs may be awarded.
22 South Western Sydney Local Health District v Gould (No 2) [2018] NSWCA 160.
23 [2021] FWC 2848, at [8]. Transcript, 28 April 2021, at PN89-PN115.
24 Transcript, 28 April 2021, at PN137-PN172.
25 Ibid at PN7. The Commission’s own questioning of Mr Duffy about the FCR’s case is not an opening submission (see PN12-PN48). The written submissions made by the UDA (on behalf of the FCR) are not referrable to the FCR’s witness evidence (see “Applicant’s Outline of arguments: merits”, at p.5-6, Item [3(c)] (10 paragraphs); “Applicant’s Outline of arguments: objections”, at p.19-20, Item [5(c)] (two paragraphs). These ‘written’ submissions were the only submissions relied upon by Mr Duffy (on behalf of the FCR) at the hearing.
26 Ibid at PN133-PN134, PN140-PN142.
27 Ibid at PN138-PN141. It appears that Mr Duffy was seeking for the witnesses to attend the hearing merely to confirm their evidence on oath or affirmation, and then be excused (despite such evidence not being otherwise contested).
28 Ibid at PN197-PN262.
29 Ibid at PN264-PN265.
30 Ibid at PN268-PN269.
31 Goffett v Recruitment National Pty Ltd [2009] AIRCFB 626.
32 Items [72] to [96] of the Table of Costs contained at Schedule 2 of this Decision.
33 Submissions of CA dated 2 June 2021, 1-5.
34 Ibid 5-8.
35 Ibid 8-12.
36 Submissions of Costs Respondents dated 8 June 2021, 1-4.
37 Ibid 4-6.
38 Ibid 6-8.
39 Ibid 9-12.
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