Emma Valenzuela v Spectrum Community Focus Limited T/A Spectrum Community Focus - [2018] FWC 46

[2018] FWC 46

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emma Valenzuela

Spectrum Community Focus Limited T/A Spectrum Community Focus

(U2017/1378)

Senior Deputy President Hamberger

SYDNEY, 3 JANUARY 2018

Application for costs pursuant to application for an unfair dismissal remedy – costs not awarded – costs application dismissed.

On 4 October 2017, I issued a decision[1] (the merits decision) dismissing an application by Emma Valenzuela (Ms Valenzuela or the costs respondent) for an unfair dismissal remedy in relation to the termination of her employment as Finance Manager by Spectrum Community Focus Limited (Spectrum or the costs applicant).

In the merits decision, I found that Spectrum had a valid reason to dismiss Ms Valenzuela.[2] However, I found that the dismissal was unfair, but only because Ms Valenzuela was dismissed summarily, i.e. she was neither given notice of her termination nor paid in lieu of notice. She was guilty of poor performance rather than serious misconduct. This would normally justify notice of termination.[3]

However, I declined to order payment of compensation to Ms Valenzuela. This was because I had found that she had deliberately deceived the costs applicant about her qualifications when she had originally applied to work for them.[4] I found that it would be reasonable to infer that at least part of the costs respondent’s poor performance was due to the fact that she was ‘out of her depth’ in performing the Finance Manager role. If she had been honest with the costs applicant about her qualifications, she might never have been appointed to the position. I concluded that payment of compensation in these circumstances would have been inappropriate.[5]

On 18 October 2017, Spectrum made an application for costs under ss. 400A and 611 of the Fair Work Act 2009 (Cth) (the FW Act).

Spectrum says that on 7 February 2017 (the day before Ms Valenzuela filed her unfair dismissal application), they had advised her that should proceedings be commenced, they would test her qualifications in light of the representations she had made at the time of her employment, as they appeared to be misleading or false.

Spectrum also says that at a jurisdictional objection hearing on 23 June 2017 it made a ‘walk away’ offer to Ms Valenzuela on the basis that she had lied to them to gain employment. It made her a further ‘walk away’ offer on 4 September 2017. Both offers were rejected and I proceeded to hear Ms Valenzuela’s application and issue the merits decision.

The costs applicant submits that the proceedings should never have been commenced, and had no reasonable prospects of success as:

·   Ms Valenzuela was on notice of the type of evidence that would be relied on at the hearing;
·   Ms Valenzuela was aware that the evidence would show that she did not possess a CPA-ASA or Master of Business Administration qualification;
·   Ms Valenzuela knew that she had represented to Spectrum that she held those qualifications in circumstances where she knew that she did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Emma Valenzuela v Spectrum Community Focus Limited T/A Spectrum Community Focus [2018] FWC 46
Case: [2018] FWC 46
Decision Date: 3 JANUARY 2018

CaseChat Overview and Summary

In the matter of Emma Valenzuela against Spectrum Community Focus Limited T/A Spectrum Community Focus, the Federal Court was called upon to adjudicate a costs application stemming from an earlier application for unfair dismissal remedy. The applicant, Emma Valenzuela, sought costs from the respondent, Spectrum Community Focus Limited, pursuant to a prior application she had made for unfair dismissal remedies. The crux of the dispute was whether the costs incurred in the initial application for unfair dismissal should be awarded to the applicant under the circumstances.

The primary legal issue before the court was the appropriateness of awarding costs to the applicant in the current costs application, given the outcome of the initial unfair dismissal application. The court was required to consider the relevant statutory provisions governing costs in unfair dismissal matters, as well as the principles of fairness and justice applicable to such applications. Additionally, the court had to assess whether the applicant had satisfied the criteria for cost recovery as stipulated by the Fair Work Act 2009.

The court found that the applicant had not met the necessary threshold to be awarded costs in the present application. The court reasoned that the initial unfair dismissal application did not result in a successful remedy for the applicant, thus the statutory provisions did not entitle her to costs. The court further noted that awarding costs in the current application would not serve the principles of fairness and justice, as the initial application had not led to a favourable outcome for the applicant. Consequently, the court dismissed the costs application, finding that the applicant had not demonstrated a compelling case for cost recovery. No further orders were made by the court.

Orders