Felix Groza v Rand Transport (1986) Pty Ltd
[2018] FWC 7364
•14 DECEMBER 2018
| [2018] FWC 7364 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Felix Groza
v
Rand Transport (1986) Pty Ltd
(U2017/9934)
COMMISSIONER CRIBB | MELBOURNE, 14 DECEMBER 2018 |
Application for an unfair dismissal remedy – application for costs – costs not ordered.
[1] This an application by Rand Transport (1986) Pty Ltd (the Costs Applicant, the company, Rand) for an order for costs under section 611 and section 400A of the Fair Work Act 2009 (the Act). The application is in relation to an application for an unfair dismissal remedy (UD application) made by Mr Felix Groza (the Costs Respondent) under section 394 of the Act.
Background
[2] As indicated above, Mr Groza filed an unfair dismissal application, alleging that his dismissal was harsh, unjust and unreasonable, on 12 September 2017. Mr Groza’s employment was terminated by the company on 1 September 2017. A hearing of Mr Groza’s unfair dismissal application was held on 29 January 2018. At the end of the hearing, the parties were directed to file written closing submissions. Mr Groza’s submissions were to be filed by 20 February 2018.
[3] On 17 February 2018, the Commission received a letter from Mr Reichman who stated that he was acting for Mr Groza and that he had attached a Notice of Discontinuance to the letter. Mr Reichman also indicated that the Notice of Discontinuance was not filed pursuant to a settlement agreement with the company.
[4] The company lodged an application for costs on 1 March 2018 on the grounds, under section 611 of the Act, that:
• The unfair dismissal application, made by Mr Groza, was made vexatiously and without reasonable cause. 1
• It should have been reasonably apparent to Mr Groza that his application had no reasonable prospect of success. 2
[5] Further, in the alternative, the company stated that the application for costs was made under section 400A of the Act, on the basis that Mr Groza unreasonably refused to engage in settlement discussions at the commencement of the hearing. The company was seeking to recover the costs incurred in defending Mr Groza’s application. 3
[6] The company’s application for costs was heard on 4 September 2018. The company was represented by Ms K Dennis, solicitor, while Mr Groza represented himself.
Legislative framework
[7] In relation to this matter, sections 611 and 400A of the Act set out the grounds on which the Fair Work Commission (Commission) may exercise its discretion and award payment of a party’s costs.
[8] Section 611 is as follows:
“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).”
[9] Section 400A provides as follows:
“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.”
Submissions
[10] I will deal with each of the grounds of the company’s application for costs in turn.
Was the application made vexatiously? (section 611(2)(a))
Rand
[11] It was submitted that Mr Groza instituted his application vexatiously to harass, embarrass and/or discredit the company and/or its employees. The company contended that the UD application lacked a legitimate and genuine basis for challenging the dismissal. This was on the grounds that Mr Groza’s core allegations were fanciful and based solely on his subjective belief and that Mr Groza was utterly dissatisfied with the company. 4
[12] In this regard, Rand highlighted Mr Groza’s evidence that he was dismissed so that the company could employ more aliens. 5
[13] Further, it was argued that Mr Groza failed to provide any evidence supporting his view as to the reason for his dismissal. In addition, the company highlighted Mr Groza’s comment that, referring to a person as an alien, could not be offensive to them. 6
[14] In terms of Mr Groza’s evident dissatisfaction with the company, it was submitted that this was not a legitimate basis to make an unfair dismissal application. The company argued that Mr Groza’s feelings towards Rand, together with the lack of evidence supporting his ‘alien’ argument, resulted in Mr Groza’s real motivation in filing an application being a vexatious one. 7
[15] During the hearing, it was stated by the company that Mr Groza publicly criticised and embarrassed both the company and individual company representatives e.g. Mr Baird. Further, the company contended that Mr Groza did not provide any evidence which supported his various contentions e.g. “Gavin Baird brings in aliens to get our jobs”. 8
[16] The Commission was referred to the decision in Nilsen v Loyal Orange Trust 9 where Justice North considered the concept of vexatiously to be:
“A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage.”
Mr Groza
[17] Mr Groza provided a response to the company’s application for costs on 27 March 2018. 10 Evidence was also given by Mr Groza during the costs hearing on 4 September 2018.
[18] In his statement, Mr Groza indicated that the company wanted him to pay their costs and that their arguments “… are at least puerile”. 11 Mr Groza gave evidence that he did not seek legal advice to make that statement.12
[19] It was Mr Groza’s evidence that he sought advice from Mr Reichman prior to Mr Reichman sending the letter withdrawing his UD application. Mr Groza explained that he then had problems with Mr Reichman and so didn’t want to have anything to do with him. Mr Reichman had then sent a letter saying that Mr Reichman no longer represented him. Mr Groza stated that he had prepared the response to the costs application himself. 13
[20] Mr Groza denied that he had made the UD application to harass or embarrass Rand. It was stated that the reason he had made the UD application was because the company had dismissed him without a reasonable reason because he had made a number of complaints about what had happened to him and the company had done absolutely nothing to redress his complaints. Mr Groza explained that he had exercised his workplace rights and made the complaints because he felt that his life and the lives of others were in danger. 14
[21] It was asserted by Mr Groza that, because of his making the complaints, instead of resolving them, the company had dismissed him. 15 Mr Groza recounted that, when he realised that Rand management were not willing to resolve his complaints, he went to Perth to talk to the General Manager, Automotive Holdings Group (AHG). It was stated that Mr Baird was assigned to resolve his complaints but that Mr Baird did not do that but dismissed him instead.16 Mr Groza further explained that he had made the UD application because what the company had done in relation to him was against the law.17
[22] Finally, Mr Groza contended that the company owed him money for pick-ups and deliveries that he had done but had not been paid for. It was stated that pick-ups and deliveries were not part of his contract. 18
Was the application made without reasonable cause? (section 611(2)(a))
Rand
[23] In the alternative, the company argued that Mr Groza instituted his application without reasonable cause on the grounds that there was no proper basis for the UD application to have been made.19 It was submitted that the UD application appeared to be a vehicle for Mr Groza to allege that the company had embarked on an anti-nationalistic crusade to terminate Australian nationals and replace them with foreign nationals.20
[24] It was stated by the company that its employment policies were subject to the Equal Opportunity Act 2010(Vic) (EO Act)and the Racial Discrimination Act 1975 (RD Act). These Acts were said to prohibit racial discrimination in the course of employment. The company argued that Rand’s direction that Mr Groza refrain from using the term ‘alien’ in the workplace was supported by these Acts. Therefore, it was contended that any challenge to the dismissal was without reasonable cause.21
[25] The Commission was referred to the decision of Wilcox J in Kanan v Australian Postal and Telecommunication Union22 and to the Full Bench decision in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing23 in support of its contention that Mr Groza’s application was made without reasonable cause.24
[26] In addition, Rand submitted that Mr Groza’s argument that he was not required to perform pick-ups and drop-offs because he was not paid for them, was made without reasonable cause. This was because Mr Groza’s employment contract provided for Mr Groza to be paid a flat trip basis and Mr Groza had been notified of this by the company on multiple occasions. Therefore, Rand argued that Mr Groza should have known that such an argument was without reasonable cause.25
Mr Groza
[27] Mr Groza stated that the reason he made the UD application was as a result of his belief that what the company did to him was not legal and as they had humiliated him. This was because the company had asked him to perform tasks (pick-ups and deliveries) which were not part of his contract and so he had refused. Mr Groza stated that casual employees were paid for pick-ups and deliveries so therefore he should have been paid. It was stated by Mr Groza that he had made the UD application because he strongly believed that there was a prospect of success. This was due to what the company did being against the law – which was harassing and humiliating him and not solving any of his problems.26
[28] Further, Mr Groza contended that it was the company’s responsibility to provide him with safe, roadworthy equipment and that the company had failed to provide him with a safe workplace – which was also against the law.27
Should it have been reasonably apparent to the Applicant that the application had no reasonable prospect of success? (section 611(2)(b))
Rand
[29] The company submitted that Mr Groza’s application was manifestly untenable and groundless because:
• Mr Groza relied on the general protections provisions of the Act when making an unfair dismissal application.
• Mr Groza maintained that he was dismissed so that Rand could employ more aliens.
• During the hearing of the UD application, Mr Groza admitted to engaging in the conduct that Rand relied on to dismiss him.
• Mr Groza did not contest the criterion at section 387(b)-(h) to show that his dismissal was harsh. 28
[30] It was recounted by Rand that their legal representative wrote to Mr Groza on 17 November 2017 to encourage Mr Groza to seek legal advice about his application’s prospects of success. The letter was also said to have stated that, if Mr Groza’s application was dismissed at a hearing, the company would make a costs application. Mr Groza’s evidence during the hearing was highlighted when Mr Groza acknowledged receipt of the letter and said that he did not seek legal advice. 29
[31] Rand submitted that, if Mr Groza had sought legal advice, it was likely that the advice would have encouraged him to discontinue the UD application. The company noted that Mr Groza only obtained legal advice after the hearing, prior to the filing of closing submissions. It was Ms Dennis’ evidence that she had received a letter from Mr Reichman, dated 17 February 2018, advising that he acted for Mr Groza and attaching a Notice of Discontinuance. 30 The company stated that Mr Groza had discontinued the UD application very shortly after obtaining legal advice.31
[32] Therefore, the company argued that, had Mr Groza sought advice after receipt of the 17 November 2017 letter, Rand would have avoided incurring significant cost. It was stated that Rand should not be penalised for Mr Groza’s inability to fully appreciate the seriousness of making an unfair dismissal application or to properly respect the contents of the 17 November 2017 letter from the company. 32
[33] Further, the company argued that, if it had not been apparent to Mr Groza about his prospects of success following receipt of the 17 November 2017 letter, it should have been apparent after Mr Groza received the company’s outline of submissions and witness statements, filed on 29 November 2017. 33
[34] The company referred the Commission to the decision in Baker v Salva Resources Pty Ltd 34 where the Full Bench discussed the concepts of “should have been reasonably apparent” and “had no reasonable prospect of success”.35
Mr Groza
[35] Mr Groza refuted that his application was “manifestly untenable” and “groundless”.36 With respect to paragraph 41(a) of the company’s Application for Costs submissions,37 Mr Groza argued that Mr Baird gave jobs to aliens instead of to people living below the poverty line. It was said that Mr Baird was discriminating against Australians and was selling Australia to aliens.38
[36] It was confirmed by Mr Groza that he had engaged in the conduct that was the reason for his dismissal (paragraph 41(c) of the company’s Application for Costs submissions).39 However, Mr Groza was of the view that his conduct did not warrant dismissal and that he hadn’t done anything wrong.40
[37] In relation to paragraph 41(d) of the company’s Application for Costs submissions,41 Mr Groza argued that he had clearly demonstrated that his dismissal was harsh, unjust and unreasonable and that that was the reason that he had made the UD application.42
Was it an unreasonable act by Mr Groza to refuse to engage in settlement discussions? (section 400A(1))
Rand
[38] With respect to the question of whether Mr Groza’s act(s) or omission(s) were “unreasonable”, the company referred to the email from Mr Groza’s representative, dated 7 March 2018. It was Ms Dennis’ evidence that she received this email on 7 March 2018 and that the email indicated that Mr Reichman no longer represented Mr Groza. Ms Dennis stated that, in the email, Mr Reichman had indicated that this was “as a result of belligerent behaviour” by Mr Groza. The company argued that such candour was unusual from an opposing lawyer. Rand speculated about the reasons for Mr Reichman’s statement about Mr Groza’s behaviour. It was argued that it was plausible that it was the result of Mr Reichman advising Mr Groza of his prospects of success in defending the costs application or that Mr Groza’s behaviour impeded Mr Reichman’s ability to effectively represent Mr Groza.
[39] Rand contended that Mr Groza’s belligerent behaviour towards Mr Reichman was prima facie evidence that Mr Groza’s actions in pursuing an unfair dismissal application were unreasonable which resulted in the company incurring costs to defend unmeritorious assertions.
[40] Further, the company submitted that, based on the decision in Goffett v Recruitment National Pty Ltd 43 which they said considered section 400A to include where a party has been “deliberate or reckless” in pursuing an application, Mr Groza’s actions could be described as this. This was on the basis of Mr Groza not seeming to be following a genuine strategy and Mr Groza’s refusal to participate in settlement discussions at the beginning of the hearing. It was argued by the company that it was likely that it would have avoided further costs if Mr Groza had agreed to the discussions.
Mr Groza
[41] Mr Groza stated that the offer from the company was an insult and that the company had made fun of him and humiliated him by making the offer.44
Considerations and conclusions
[42] The starting point is that each party bears its own costs in proceedings before the Commission. Section 611 of the Act then goes on to provide that the Commission may order exceptions to that general rule if either s.611(2)(a) or (b) is satisfied. However, even if one of those subsections is satisfied, the Commission is not obliged to order costs. It is a discretionary decision. The power to award costs pursuant to s.611(2) is to be exercised with caution and only in a clear case. 45
Was the application made vexatiously? (section 611(2)(a))
[43] In Qantas Airways Limited v Carter, 46 a Full Bench of the Commission endorsed the observations of North J in Nilsen v Loyal Orange Trust47 on when an application is made vexatiously. His Honour stated:
“[The question of whether the proceeding was instituted vexatiously]... looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage.”
[44] It was submitted by Rand that the predominant purpose of the application by Mr Groza was to harass, embarrass and/or discredit the company and/or its employees. On the other hand, Mr Groza maintained that the reason he had made the UD application was because the company had dismissed him without a reasonable or legal reason due to complaints he had made about what had happened to him during his employment. It was argued that, instead of addressing his complaints, the company had dismissed him. Mr Groza said that his dismissal was, therefore, harsh, unjust and unreasonable.
[45] In all of the circumstances, I am not satisfied that the UD application was made vexatiously. I have formed the view that Mr Groza genuinely believed that he had been dismissed by the company without reasonable cause and that Mr Groza had made the UD application to seek redress for what he felt was his harsh, unjust and unreasonable dismissal. In addition, it is evident that a secondary reason for Mr Groza making the UD application was because he believed that the company owed him money for his pick-ups and deliveries. I am also of the view that Mr Groza was oblivious to the affect that his UD application had on the company. This is because Mr Groza was wholly focused on righting the wrongs that he perceived the company had done to him. Therefore, it cannot be said that the predominant purpose for Mr Groza making the UD application was vexatious.
Was the application made without reasonable cause? (section 611(2)(a))
[46] In the decision in Keep v Performance Automobiles Pty Ltd 48 (Keep), a Full Bench of the Commission summarised the principles relevant to when an application is made without 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.” 49 [Endnotes omitted]
[47] It was contended by the company that the UD application was made without reasonable cause as the direction to Mr Groza to refrain from using the word ‘alien’ was supported by the EO Act and the RD Act.
[48] On the other hand, Mr Groza argued that he had made the UD application because the company was asking him to perform tasks not covered by his contract. Mr Groza stated that he had also made the application because the company had not provided a safe workplace and the company had not solved any of the problems he had raised with him and had dismissed him instead.
[49] The reason given by the company for Mr Groza’s dismissal was Mr Groza’s refusal to follow a direction that Mr Groza refrain from using the word ‘alien’ in the workplace. Implicit in Mr Groza’s submission was the contention that the real reason he was dismissed was because he had made a number of complaints to the company. It was also alleged by Mr Groza that the company had illegally asked him to perform pick-ups and deliveries which were not part of his contract and he had refused.
[50] There was a hearing of Mr Groza’s UD application and the decision was reserved pending receipt from the parties of written closing submissions. Therefore, at the point in time when the UD application was withdrawn, the Commission had not made a determination in relation to the UD application.
[51] Applying the propositions set out in Church in paragraph [46] above, it is not possible to find that the UD application was ‘so obviously untenable that it cannot possibly succeed’. This is because Mr Groza’s contention, that the real reason for his dismissal was because he had made a number of complaints to the company about his treatment in the workplace, was at least arguable. It is noted that Mr Groza agreed that he had not refrained from using the term ‘alien’ in the workplace following an instruction not to do so. As set out in Church, the test is not whether the ‘argument proves unsuccessful’. It may well have been that Mr Groza was ultimately unsuccessful had the Commission made a decision in relation to his UD application. However, Mr Groza’s case that the real reason for his dismissal was a different reason than the one given by the company, was an arguable one.
[52] Therefore, I am not satisfied that the application was bought without reasonable cause.
Should it have been reasonably apparent to the Applicant that the application had no reasonable prospect of success? (section 611(2)(b))
[53] The Full Bench authority in relation to s.611(2)(b) of the Act is the decision in Baker v Salva Resources Pty Ltd 50 (Baker). In Baker, the Full Bench stated:
“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 to be not reasonably arguable.” 51[Endnotes omitted]
[54] It was the company’s contention that it should have been reasonably apparent to Mr Groza that his UD application had no reasonable prospect of success. This was on the basis that Mr Groza was relying on the general protections provisions of the Act; had admitted to engaging in the conduct for which he was dismissed and that Mr Groza’s inability to fully appreciate the seriousness of making the UD application should not be visited on the company.
[55] Further, the company contended that Mr Groza had not properly respected the letter of 17 November 2017 which was sent to encourage Mr Groza to seek legal advice about his UD application and prospects of success. It was contended by the company that it was apparent at the hearing that Mr Groza had not sought legal advice. The company stated that, had Mr Groza sought legal advice, the legal advice would likely have encouraged Mr Groza to discontinue his UD application. Further, the company argued that Mr Groza should have understood that his UD application had no prospects of success once he had received the company’s outline of submissions and witness statements.
[56] For his part, Mr Groza argued that the company was giving jobs to aliens and that his conduct did not warrant his dismissal and that he was dismissed because he complained. As well, Mr Groza explained that he felt intimidated by the company’s letter of 17 November 2017 and he confirmed that he had not sought legal advice at that point.
[57] The decision in Baker provides that the concept ‘should have been reasonably apparent’ is to be determined on the basis of ‘a belief formed on an objective basis, rather than a subjective test’. In Mr Groza’s submissions in relation to the costs application, Mr Groza argued that he had been dismissed due to making complaints which he had made because he “felt that my (his) life … was in danger … ”. 52 It is noted also that in Mr Groza’s submissions, he stated that he travelled to Perth to talk to the General Manager of AHG about his complaints and the lack of resolution of his complaints.53 As Mr Groza believed, on the basis of his interactions with the company, that his complaints were not being resolved and that he was dismissed because he complained, I am not satisfied that, objectively, it should have been reasonably apparent to Mr Groza that his application had no reasonable prospect of success.
[58] Baker also provides guidance in relation to ‘had no reasonable prospect of success’. On the material before me, I am unable to find that Mr Groza’s UD application was ‘manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable’. Mr Groza provided an alternate reason for his dismissal which the Commission was bound to consider. Therefore, it is not possible to find that Mr Groza’s UD application meets the criteria for no reasonable prospect of success as set out in Baker.
[59] Therefore, I am not satisfied that it should have been reasonably apparent to Mr Groza that the UD application had no reasonable prospect of success.
Section 400A
[60] The Full Bench in the decision in Baxter Healthcare Pty Ltd T/A Baxter Healthcare v Mr Andrew Portelli 54 (Baxter) set out general principles applicable to s.611(2) and s.400A. In relation to s.400A, the Full Bench set out the history of the section as follows:
“Item 4 of the Fair Work Amendment Bill 2012 inserted a new section 400A into the FW Act to enable the Fair Work Commission 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. The explanatory memorandum provides as follows:
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.” 55[Endnotes omitted]
[61] Therefore, the Commission may order costs if it is satisfied that, in this case, there was an unreasonable act or omission by Mr Groza. What an unreasonable act or omission is will depend on the circumstances of the matter. The explanatory memorandum also indicated that clear evidence of unreasonable conduct was required in order to exercise the power under s.400A of the Act.
[62] The grounds of the company’s application in relation to this section were that:
• Mr Groza was pursuing an application because he felt aggrieved by the company rather than being aggrieved for legitimate reasons.
• It was unreasonable for Mr Groza to refuse settlement discussions at the beginning of the hearing of the UD application.
• Mr Groza’s belligerent behaviour towards Mr Reichman was prima facie evidence that Mr Groza’s pursuit of an unfair dismissal application was unreasonable.
[63] On the other hand, it was stated by Mr Groza that the company did not know what had happened between himself and Mr Reichman. Mr Groza explained that Mr Reichman had tried to take advantage of his situation by initially telling him what it would cost for him to represent Mr Groza and had then told him it would cost a great deal more. Mr Reichman was then said to have refused to return his paperwork.
[64] As noted in paragraph [60] above, the power is only to be exercised where there is clear evidence of unreasonable conduct. I have not been persuaded that Mr Groza was simply pursuing the application because he felt aggrieved by the company. It is a statement of fact that Mr Groza did feel aggrieved by the company. However, it is not accepted that Mr Groza was aggrieved for illegitimate reasons. As indicated earlier, I have formed the view that the basis of Mr Groza’s application was that the real reason for his dismissal was that he had made complaints which were not dealt with by the company and that he had been dismissed instead of the complaints being dealt with. Such an argument is available within the unfair dismissal framework.
[65] Secondly, in relation to the company’s contention that it was unreasonable for Mr Groza to have refused settlement discussions, it is helpful to refer to the transcript of that part of the hearing of the UD application. In response to the Commission asking the parties would they be prepared to have a conversation to try and settle the UD application/reach a negotiated agreement, 56 Mr Groza stated clearly that he wasn’t prepared to do that and preferred that the Commission decide.57 Further on during this particular discussion, the Commission explained to Mr Groza that:
“ … if it ends up that you are not successful, because you were very clear when the Commission offered the opportunity to have a conversation about a possible settlement, you are leaving yourself open for a costs application.” 58 [Italics for emphasis added]
[66] The company has also argued that Mr Groza’s belligerent behaviour towards Mr Reichman was prima facie evidence that Mr Groza’s pursuit of an unfair dismissal application was unreasonable. The only evidence before the Commission in relation to what occurred between Mr Groza and Mr Reichman is Mr Reichman’s letter to Ms Dennis together with Mr Groza’s explanation about what happened. Mr Reichman did not give evidence on this issue. Therefore, it is not possible to draw any conclusions which might make good this particular contention by the company.
[67] Bringing all of this together, the Commission is not satisfied that Mr Groza engaged in unreasonable conduct which caused the company to incur the costs that it did.
Conclusion
[68] Therefore, I am not satisfied that the UD application was made vexatiously or without reasonable cause (s.611(2)(a)). I am also not satisfied that it should have been reasonably apparent to Mr Groza that the UD application had no reasonable prospect of success (s.611(2)(b)). Finally, I am not satisfied that Mr Groza engaged in an unreasonable act or omission in connection with the conduct or continuation of the matter.
[69] Accordingly, I have no jurisdiction to order costs and the application for costs is dismissed. An order 59 to this effect will be issued separately.
Appearances:
F Groza on his own behalf
K Dennis of Sladen Legal for the Respondent
Hearing details:
2018.
Melbourne and Adelaide (via video):
September 4.
Printed by authority of the Commonwealth Government Printer
<PR702832>
1 Exhibit A1 at paragraph 10
2 Ibid at paragraph 39
3 Ibid at paragraphs 53 – 61 and Exhibit A2 at paragraphs 3 – 14
4 Exhibit A1 at paragraphs 12 – 24
5 Ibid at paragraphs 13 – 14
6 Ibid at paragraphs 13 – 15
7 Ibid at paragraphs 17 – 18
8 Ibid at paragraphs 20 – 21
9 (1997) 76 IR 180
10 Exhibit R1
11 Ibid at page 2
12 Transcript PN 304 – 308
13 Ibid PN 325
14 Exhibit R1 at page 1 and Transcript PN 350 – 355
15 Ibid at page 1
16 Ibid
17 Transcript PN 357
18 Exhibit R1 at page 2
19 Exhibit A1 at paragraph 28
20 Ibid at paragraph 33
21 Ibid at paragraphs 30 – 31 and 34
22 (1992) 43 IR 257
23 [2014] FWCFB 810
24 Exhibit A1 at paragraphs 26 – 27
25 Ibid at paragraphs 36 – 37
26 Transcript PN 359 – 360
27 Ibid PN 362 – 366 and Exhibit R1 at page 1
28 Exhibit A1 at paragraph 41
29 Ibid at paragraphs 42 – 44
30 Exhibit A3 at paragraph 5 and Attachment KD1
31 Exhibit A1 at paragraph 46
32 Ibid at paragraphs 46 – 47
33 Ibid at paragraphs 49 – 52
34 [2011] FWAFB 4014
35 Exhibit A1 at paragraph 40
36 Transcript PN 368
37 Exhibit A1 at paragraph 41(a)
38 Transcript PN 368 – 369
39 Exhibit A1 at paragraph 41(c)
40 Transcript PN 379 – 394
41 Exhibit A1 at paragraph 41(d)
42 Transcript PN 398
43 [2009] AIRCFB 626
44 Transcript PN 415
45 Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[2014] FWCFB 810 at [26] – [27]
46 [2013] FWCFB 1811 at [17]
47 (1997) 76 IR 180, 181
48 [2015] FWCFB 1956
49 Ibid at [17]
50 [2011] FWAFB 4014
51 Ibid at [10]
52 Exhibit R1 at page 1
53 Ibid at page 2
54 [2017] FWCFB 3891
55 Ibid at [50]
56 Transcript PN 185 - 191
57 Ibid PN 192
58 Ibid PN 269
59 PR703141
0
5
0