| [2024] FWC 2840 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Flexy Services Pty Ltd
v
Mr Brian Newman
(C2024/2298)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 14 OCTOBER 2024 |
Application for costs against paid agent pursuant to s.376(2)(a) and s.376(2)(b) – costs to be awarded.
Flexy Services Pty Ltd (Flexy) has applied to the Fair Work Commission (FWC) under s.376(2)(a) and s.376(2)(b) of the Fair Work Act 2009 (Cth) (the Act) for costs against Mr Brian Newman of 1800Advocates (Mr Newman) for his actions in the matter of McBride v Flexy Services Pty Ltd C2024/2298 (McBride matter).
Background
The McBride matter involved an application under s.365, being an application involving alleged dismissal in breach of general protections. Flexy lodged a jurisdictional objection to the FWC dealing with the matter on the basis that Ms McBride had not been dismissed. As there had been a jurisdictional objection raised, the matter was not conciliated by a staff conciliator but rather was allocated directly to my Chambers.
Due to a number of factors, we were unable to schedule a mention hearing prior to the jurisdictional hearing. As such, the first opportunity to deal directly with the matter was at the jurisdictional hearing set down for 9.00am (AWST) on 21 June 2024. The listing notice for this hearing was sent to parties on 10 May 2024. On 24 May 2024 Flexy provided its submissions to the FWC. Ms McBride’s submissions were due on 7 June 2024 at 4.00pm (AWST).
At 5.41am (AWST) on 7 June 2024 my Chambers received a request for an extension of time to file submissions from Mr Newman and, subsequently, a request from Flexy to be given an equivalent extension. Both parties were granted an extension of five days, meaning Ms McBride’s submissions were due at 4.00pm (AWST) on 12 June 2024. At 4.48am (AWST)
on 13 June 2024 my Chambers received a request from Mr Newman for a further extension of time to file submissions until 5.00pm (AWST). I granted this further extension and Ms McBride’s submissions were filed within the new deadline. On 19 June 2024 the Respondent provided its submissions in reply.
At 6.02am (AWST) on 21 June 2024 Mr Newman emailed my Chambers advising that he was scheduled to appear in a matter before Deputy President Millhouse that morning and may not be available for the start time of Ms McBride’s hearing. My Chambers kept in contact with Deputy President Millhouse’s Associate to determine if their matter was likely to conclude at a time that would allow Ms McBride’s matter to proceed. After waiting for over two hours I determined that the McBride hearing could not go ahead and advised both Ms McBride and Flexy accordingly.
Having read all of the materials submitted by the parties, I had concerns that the application was ill-conceived in that I could find no evidence that Flexy had actually terminated Ms McBride. It had been my intention to canvass this matter at the outset of the hearing and seek further…
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- Case
- [2024] FWC 2840
- Decision Date
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