Flexy Services Pty Ltd v Mr Brian Newman - [2024] FWC 2840

[2024] FWC 2840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Flexy Services Pty Ltd

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] FWC 2840
Decision Date: 14 OCTOBER 2024

CaseChat Overview and Summary

Flexy Services Pty Ltd has applied to the Fair Work Commission for an order for costs against Brian Newman, a paid agent who represented Georgina McBride in a matter under the Fair Work Act 2009 (Cth). The application arose out of proceedings in the matter of McBride v Flexy Services Pty Ltd. The primary issue for the Deputy President to determine was whether Mr Newman’s conduct in continuing to prosecute a claim against Flexy which he knew had no reasonable prospects of success amounted to an unreasonable act or omission in connection with the conduct or continuation of the dispute within s.376(2)(b) of the Act. The Deputy President found that Mr Newman’s behaviour in continuing to prosecute a claim that clearly could not succeed amounted to an unreasonable act or omission. Although Mr Newman had not encouraged Ms McBride to commence or continue her application, he had behaved unreasonably in not advising Ms McBride to withdraw her claim and by continuing to represent her. The Deputy President ordered that Mr Newman pay costs but did not order indemnity costs, noting that the costs incurred by Flexy were excessive for a jurisdictional matter and a method of determining the appropriate amount of costs to be awarded would be canvassed at a mention hearing.

Orders