Gade Naidu v Causeway Hotels

[2015] FWC 458

[2015] FWC 458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gade Naidu
v
Causeway Hotels
(U2014/9899)

COMMISSIONER GREGORY MELBOURNE, 16 JANUARY 2015

Application for costs order.

Introduction

[1] Mrs Gade Naidu was dismissed by her employer Causeway Inn Pty Ltd (“Causeway”) in May last year. She subsequently lodged an unfair dismissal application but it was filed after the expiry of the 21 day period.

[2] Causeway raised 2 jurisdictional objections to the application. Firstly, that it was “out of time,” i.e. lodged more than 21 days after the dismissal took effect. However, it also objected on the basis the application disclosed Mrs Naidu had also made application in connection with her dismissal under State law. It therefore relied on s.725 of the Fair Work Act 2009 (Cth) and the prohibition on “multiple actions.”

[3] Directions were issued and the matter set down for hearing to deal with both Mrs Naidu’s application for an extension of time, and the jurisdictional objections raised by Causeway. At the conclusion of the hearing the Commission reserved its decision. However, on 22 August the Commission received a Notice of Discontinuance from the solicitors acting on behalf of Mrs Naidu indicating “the Applicant wholly discontinues this matter to pursue an alternate application.” 1

[4] On 5 September an Application for Costs was made by Causeway under s.400A and/or s.611(2) of the Act. In particular, it submitted it had incurred costs because Mrs Naidu made the application “without reasonable cause.” 2 Directions were again given to the parties and the matter set down for hearing. This decision deals with that Application. It is also noted at this point Mrs Naidu did not provide any submissions or evidence in accordance with the directions. She did, however, make brief submissions during the course of the proceedings.

The Issue to be Determined

[5] S.400A “Costs orders against parties” states:

“(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.” 3

[6] S.611 “Costs” states:

“(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 ofthe 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.” 4

[7] Therefore:

• Have costs been incurred by Causeway because of an unreasonable act or omission by Mrs Naidu in connection with the conduct or continuation of her unfair dismissal application and, if so, is it appropriate in all the circumstances for the Commission to exercise its discretion to make an order for costs?



• Secondly, have costs been incurred by Causeway because Mrs Naidu made her unfair dismissal application “without reasonable cause” and, if so, is it appropriate in all the circumstances for the Commission to exercise its discretion to make an order for costs?

The Evidence and Submission

[8] The application and the submissions provided by Causeway set out in some detail the sequence of events in this matter.

• On 1 April Mrs Naidu made a complaint with the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”) about what she described as the:

“...constant bullying, harassment, discrimination and racism that I had to deal with during my 5 and a half years at the Causeway Hotels.” 5

• On 2 May 2014 the VEOHRC confirmed it had received the complaint and provided some detail about how the conciliation process would take place.



• Mrs Naidu was subsequently dismissed on 2 May 2014. On 6 June she lodged an unfair dismissal application with the Commission. That application was made 14 days after the expiry of the 21 day period.



• On 19 June 2014 the VEOHRC advised both Causeway and Mrs Naidu that as Causeway had indicated it intended to withdraw from the dispute resolution process the matter would now be closed. It also indicated to both parties that further information about how the matter might now proceed could be obtained by contacting the Victorian Civil and Administrative Tribunal.



• On 23 June Causeway filed its response which included reference to its jurisdictional objections to the application.



• On 1 July the Commission issued a Notice of Listing setting the matter down for hearing to deal with the application for an extension of time and the jurisdiction objections raised by Causeway. The notice also included directions for filing and service of submissions, witness statements and any other documents.



• On 10 July the solicitors acting on behalf of Causeway wrote to Mrs Naidu highlighting the reference in her application to the claim made under State law and seeking further information about this matter.



• On 15 July a response to this letter was received from the solicitors acting on behalf of Mrs Naidu.



• The parties subsequently filed and served submissions and other documents in accordance with the directions issued and the matter was heard on 8 August. At the conclusion of the proceedings a decision was reserved.



• On 12 August Causeway was notified of an application to the Victorian Civil and Administrative Tribunal (VCAT) by Mrs Naidu.



• On 20 August the solicitors acting on behalf of Causeway wrote to the solicitors who had acted on behalf of Mrs Naidu indicating they had sighted the VCAT application and believed it related clearly to her dismissal from Causeway. It also stated:

“We appreciate that this issue was contested in circumstances where Gade had only agitated her concerns with the VEOHRC, had filed that original application prior to her dismissal and in circumstances where VEOHRC had closed its file. As you know, these were the points in issue at the recent hearing. However, in our view, the filing of VCAT Application puts this matter beyond doubt and disposes of the concerns and issues relied upon by Gade in support of the FWC Application.

It is clear that Gade is prohibited from filing FWC application and cannot succeed on the outstanding issues before Commissioner Gregory.” 6

It also indicated it would be notifying the Commission of these developments and inviting Mrs Naidu to discontinue the Fair Work Commission application immediately. It also asked her attention be drawn to the provisions contained in s.611 of the Act and that it considered her “actions to be entirely unreasonable.” 7 It also sought to have its client’s legal costs paid by Mrs Naidu and indicated if no agreement could be reached it reserved its client’s position to seek orders from the Commission.

• On 22 August the Commission received a Notice of Discontinuance from Mrs Naidu’s solicitors indicating she, “Wholly discontinues this matter to pursue an alternate application.” 8

• On 5 September an Application for Costs was filed by the solicitors acting on behalf of Causeway. On the same day they forwarded an email to Mrs Naidu indicating they had instructions to make an Application for Costs. The email also indicated they were contacting Mrs Naidu directly because they understood the solicitors previously acting on her behalf did not act for her any longer. While the email foreshadowed the Costs Application it also proposed an offer in resolution and sought a response by 10 September. The email also indicated:

“This offer is made on an open basis. If you refuse this offer, Causeway will be relying on this email in support of its application to the Commission.” 9

• On 10 September the Application for Costs was set down for hearing and further Directions issued to the parties in regard to the filing and service of submissions, witness statements, and any other materials the parties intended to rely upon.

• On 9 September the Commission was advised by the solicitors previously acting on behalf of Mrs Naidu that they ceased to act for her from the time the Notice of Discontinuance was filed. “For the avoidance of doubt” they also attached a Notice of Representative Ceasing to Act. 10

• Causeway’s solicitors subsequently provided submissions in accordance with the Directions. On 10 October Mrs Naidu was contacted to ask if she intended to file submissions or witness statements in accordance with the Directions. She indicated she did not and would make submissions in the hearing.

• The matter was heard on 14 October. Later that day Causeway’s solicitors provided a copy of the proposed form of order.

[9] Causeway relies, in large part, on the written submissions it provided in accordance with the directions issued. It submits under the legislative framework in the Act, the general provision in s.611(1) provides that a person must bear their own costs in relation to a matter before the Commission. However, it also submits this is subject to the specific powers to make an order for payment of costs in ss.611(2) or 400A.

[10] It notes under s.611(2) the Commission may order a person to bear some or all of the costs of another person 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.” 11

[11] It also notes under s.400A an order may be made if the Commission is satisfied the first party caused costs to be incurred because of an unreasonable act or omission of the first party. It continued to submit there is limited guidance at present as to the application of this section, but the words are clear and should be given their plain and ordinary meaning. However, it did not make further submissions about the relevance of these provisions in the present matter.

[12] In regard to s.611(2) it submits the authorities have established the power to order payment of costs should be exercised with caution. However, they have also established principles which identify the circumstances in which an exercise of the discretion is appropriate. It refers to the decision in Qantas Airways Limited v Carter 12(“Qantas”) as setting out the approach to be adopted in considering “without reasonable cause”. It also submits the test is not whether the application might have been successful, but whether it should not have been made, and refers to the decision in Kanan v Australian Postal and Telecommunications Union13 (“Kanan”) in this context.

[13] It submits Mrs Naidu filed an application with the Victorian Human Rights and Equal Opportunity Commission which dealt with the same issues as her unfair dismissal application. It continues to submit, having regard to the facts known to Mrs Naidu at the time, it was clear she was prohibited from making an unfair dismissal application because of the “multiple actions” prohibition in s.725. In its submission:

“For this reason, the Dismissal Application was always going to fail.” 14

[14] It submits these issues were identified by Causeway in its F3 response, as well as being set out in the letter sent to Mrs Naidu on 10 July, and put in the submissions made in the proceedings. It submits:

“Ms Naidu’s acts in bringing the application to the Commission was unreasonable and resulted in the respondent being required to respond to an application that had no substantial prospect of success.” 15

[15] It also submits the requirement for Causeway to deal with the complaint in the VEOHRC, and then the application before the Commission, is the very situation s.725 was designed to avoid and prohibit. It concluded by indicating:

“In respect of section 611(2) of the FW Act, for the reasons identified in the submissions previously filed by the respondent in this proceeding, this was readily apparent to Ms Naidu, on her own version of the facts. The application was made without reasonable cause. Given the facts known to Ms Naidu (and/or her advisors), it was clear that the application must fail due to the operation of section 725 of the FW Act.” 16

[16] It finally makes reference to the email sent to Mrs Naidu on 5 September concerning the proposed offer in settlement of the costs application. It continues to submit her refusal of this offer was unreasonable and resulted in Causeway incurring additional costs in proceeding with the present application.

[17] Mrs Naidu made various submissions in the proceedings on 14 October, in large part in response to questions asked by the Commission. She indicated she was unclear about the nature of the proceedings, and relied upon what she was told previously by the solicitors that represented her at the time. She indicated legal representation was provided to her as part of the Commission’s pro bono program. She understood from that advice there would not be any costs involved as a result of her unfair dismissal application. She also indicated when her previous representatives became aware she had made a claim at VCAT, as well as her unfair dismissal application, she was advised to withdraw the application before the Commission. She also understood she would not incur any costs as a result. On this basis she agreed to discontinue her unfair dismissal application.

[18] Causeway indicated in response the advice Mrs Naidu received previously from her legal representatives was not relevant to the present application. The matter was instead required to be determined on the basis of whether it was unreasonable for her to proceed or not. It also submits ignorance of the legal consequences of an individual’s actions is not an excuse, and it was not appropriate to base opposition to the present application on those grounds. It submitted, in conclusion, this is not simply an application that was unsuccessful; it was instead an application that should never have been brought, because the application under State law was in place at all relevant points in time.

Consideration

[19] As Causeway indicated in its submissions two recent Full Bench decisions have considered the Commission’s powers under the Act to make costs orders. Those powers were reviewed in some detail, in particular, by the Full Bench in E. Church v Eastern Health t/as Eastern Health Great Health and Well-Being 17(“E. Church”). In considering the scheme of the legislation the Full Bench stated at the outset:

“...it is important to appreciate that the Commission, as a statutory tribunal, has no inherent power to make costs orders. Its powers to make such orders must be derived from the FW Act.” 18

[20] It then continued to identify the various sections of the Act that enable an order for costs to be made in different circumstances. In regard to the powers under s.400A it indicated:

“[18] Section 400A provides that the Commission may make a costs order against a party to a matter arising under Part 3-2, if satisfied that the first party caused those costs to be incurred because of their unreasonable act or omission in connection with the conduct or continuation of the matter. Part 3-2 of the FW Act deals with ‘Unfair Dismissal’.” 19

[21] Turning to s.611 the Full Bench began by stating (references omitted):

“[21] Ascertaining the meaning of s.611 necessarily begins with the ordinary and grammatical meaning of the words used. These words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.” 20

[22] It continued to indicate:

“[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.” 21

[23] Drawing similarities with the provisions contained in s.570, dealing with the powers of the Federal Court to make costs orders if proceedings are instituted vexatiously, the Full Bench continued to state (references omitted):

“[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.” 22

[24] The Full Bench then turned to consider the meaning of the expression “vexatiously or without reasonable cause.” Leaving aside its considerations of the meaning of “vexatiously,” given it is not relevant in the present matter, the Full Bench concluded in regard to “without reasonable cause” (references omitted):

“[30] We now turn to the expression ‘without reasonable cause.’ 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. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, Wilcox J put it this way:

‘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 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, 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.’” 23

[25] The Full Bench then continued to consider the question in the context of an appeal proceeding and concluded (references omitted):

“[31] In the context of an appeal the question becomes whether, having regard to the arguments available to the appellant at the time of instituting the appeal, there was no substantial prospect of success. As Wilcox CJ (with whom Madgwick J) observed in Imogen Pty Ltd v Sangwin:

‘The prospect must be evaluated in the light of the facts of the case, the judgement appealed from the points taken in the notice of appeal. If having regard to those matters, there was not insubstantial prospect of the appeal achieving some success, albeit not necessarily complete success, then it would seem to me it cannot be fairly described as having been instituted ‘without reasonable cause’. This is so even if, in the result, the appeal proved unsuccessful.’

[32] In the same matter Ryan J said:

‘The existence of ‘reasonable cause’ within the meaning of s 347 falls to be determined at the time when the relevant proceedings were instituted. The fact that the party instituting the proceedings later discontinues them is therefore not a matter to be taken directly into account in the application of the section. However, an appeal stands and somewhat different case from the proceedings at first instance in that discontinuance may bear indirectly on the discretion conferred by s 347 by tending to confirm an impression derived from the grounds of appeal and the reasons for judgement below that the prospects of success on the appeal was slight.” 24

[26] The Full Bench concluded:

“[33] In construing s.570 and its legislative antecedents courts have observed that the test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgement, that is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed.’” 25

[27] In the decision in Qantas Airways Ltd v Mr Paul Carter 26 the Full Bench also considered the approach to be taken in dealing with the matter under s.611(2)(b). It concluded (references omitted):

“[19] We now turn to s.611(2)(b). The approach to be taken to considering whether such a finding should be made is summarised in the decision of the Full Bench in Baker v Salva Resources Pty Ltd (Baker). The relevant extract is as follows:

‘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.’

[20] It is clear from the terms of s.611 of the Act that the point at which the Commission must determine whether or not Qantas’ application to appeal was vexatious, without reasonable cause or had no reasonable prospect of success, is when Qantas made the application to appeal.” 27

[28] As indicated, from both decisions it is clear the point at which the Commission must determine whether or not an application has been made “without reasonable cause” is at the time the application is made.

[29] In the proceedings on 8 August 2014 Causeway made the following submissions about the matters at issue in regard to its “multiple actions” objection.

“We don’t anticipate that there are many disagreements between us on the appropriate legal principles to be applied for the purpose of the multiple actions prohibition. However there are two key points of difference as we understand it. The first key point of difference is whether a complaint filed with the Victorian Equal Opportunity and Human Rights Commission under the 2010 Equal Opportunity Act is a complaint or application under another law for the purpose of section 725 of the Fair Work Act. That matter requires an unfortunate discursion into statutory interpretation. As we understand the position that’s been put this objection isn’t specific to the applicant or the particular complaint filed by her. It’s in the nature of a general assertion that the 2010 changes to the Victorian Equal Opportunity Act had the result that a dispute which is raised for dispute resolution is not capable of constituting a complaint to which the multiple actions prohibition will apply.” 28

[30] And further:

“The second point of difference between us on the law as we understand it is whether or not the actual complaint that was made by the applicant in this matter was sufficiently connected to the termination of her employment to satisfy the requirement that it be a complaint in relation to the dismissal for the purposes of the Fair Work Act multiple actions prohibition. We say that this is largely a question of fact. However there are a number of authorities that I’ll take you to shortly which provide helpful guidance on how to approach that issue and the threshold that must be reached in order for that test to be satisfied. We’ve addressed them in the written submissions but I will just deal with that as well. So those are the two matters that I’ll be focusing on, Commissioner.” 29

[31] In the written submissions filed by Causeway in support of its “multiple actions” objection it commenced by making reference to the provisions contained in s.725 and ss.726 - 732, as well as making reference to what the Explanatory Memorandum noted about clause 732, and concluded:

“Section 725 of the FW Act acts as a personal prohibition on an applicant from making a second complaint of a kind to which s 732 of the FW Act applies if the complaint is a matter ‘in relation to’ the dismissal.” 30

[32] Causeway also noted Mrs Naidu was dismissed on 2 May 2014 and the VEOHRC complaint predated her dismissal, having been filed on 1 April 2014. It also made reference to a number of statements by Mrs Naidu in the materials annexed to her complaint, noting it was accepted by VEOHRC in a letter dated 2 May 2014, when it confirmed it had received a complaint of race and disability discrimination. However, on 19 June VEOHRC closed the matter because Causeway indicated it was withdrawing from the process of dispute resolution.

[33] Against this background Causeway submits the Equal Opportunity Act is a law of a State or Territory and therefore falls within the definition of “another law” for the purposes of s.732 of the Fair Work Act. It follows, in its submission, that Mrs Naidu’s VEOHRC complaint is a complaint or application brought under “another law.” 31

[34] Causeway acknowledges the VEOHRC complaint predated Mrs Naidu’s unfair dismissal application, however, it submits at the time her application was filed in the Commission on 6 June her VEOHRC complaint had not been closed. It relies on the decision of the Full Bench in Du v University of Ballarat 32 (“Du”) as authority for the proposition that a complaint closed by VEOHRC, but not referred to VCAT, has not been withdrawn for the purposes of the Fair Work Act 2009. It also relies on the decision in Cugura v Frankston City Council33 where the VEOHRC closed its file on the basis conciliation was unlikely to be successful, however, the Applicant was still within time to proceed with the matter in VCAT. In those circumstances the Federal Magistrate found the Applicant was precluded from pursuing an unfair dismissal application in the Commission on the basis of s.725 of the FW Act.

[35] Causeway also made submissions about whether Mrs Naidu’s discrimination complaint was “in relation to” a dismissal. It again relied on the decision in Du, where it submits the Applicant sought a remedy for unfair dismissal under the Fair Work Act 2009, in circumstances where he had also made a complaint to the VEOHRC alleging race discrimination.

[36] It also made reference to the decision in Birch v Westco Electrics (1966) Pty Ltd 34. In that matter the Applicant made a claim for unfair dismissal, and then an adverse action claim under the Fair Work Act, and later filed claims under the Western Australian Equal Opportunity legislation, alleging sexual harassment and sex discrimination in her employment. Causeway submits in both cases the nature of the allegations were the same and the Court found the intention of s.725 was to restrict a person in the position of the Applicant to the selection of a single remedy.

[37] It continued to submit the evidence of Mrs Naidu’s claims, as set out in her unfair dismissal application and the VEOHRC complaint, demonstrate there is a direct relationship between the two claims. It submits it is immaterial that her dismissal was not the focus of the VEOHRC complaint, and she was seeking to have both bodies deal with the same allegations and the same conduct in connection with her employment. It submitted in conclusion:

“Under the terms of the FW Act, the Applicant is restricted to a single remedy. That remedy was the VEOHRC complaint. It remains open to her to pursue this complaint, which has not been withdrawn or failed for want of jurisdiction. On this basis, she was and is prohibited from filing the Application.” 35

[38] The submissions made on behalf of Mrs Naidu also commenced with an outline of the relevant legislation and submitted (references omitted):

“There are two prongs to subsection 732(1)(a). First there must be a relevant ‘complaint’ and second the complaint must be ‘related to dismissal’. The Applicant raised a dispute with VEOHRC on 1 April 2014. It is the Applicant’s submission that this dispute was not a ‘complaint’ in the relevant sense and nor was it related to dismissal.” 36

[39] Her submissions then continued to examine the particular meaning to be attached to the word “complaint” in s.732, and concluded by submitting a complaint brought under Part 8 of the Equal Opportunity Act is not a complaint captured by s.732 of the Fair Work Act, because it does not enable the Applicant to obtain a remedy under the Equal Opportunity Act. If the person bringing the complaint wants to obtain a remedy he or she must make a further application to VCAT by commencing a separate process. In its submission Mrs Naidu had not made an application to the Tribunal claiming a breach of the Equal Opportunity Act, but had only sought to utilise the dispute resolution services of VEOHRC at the time her unfair dismissal application was lodged with the Commission.

[40] However, it submitted, in the alternative, that even if the Commission was to find a complaint brought under Part 8 of the Equal Opportunity Act is a complaint within the meaning of s.732 of the Fair Work Act it did not “relate to dismissal.” 37 In this context it submitted the complaint by Mrs Naidu was made on 1 April, but she was not dismissed until 2 May. It also submits an examination of her complaint indicates it does not relate to her dismissal and she was, at the time the complaint was made, concerned instead with issues to do with bullying, harassment, discrimination and racism in her employment. It also notes she was pressing to have the complaint dealt with on 22 April, which was again prior to her dismissal.

[41] Her submissions also sought to distinguish the decision in Du because the Applicant in that matter had already been given notice to resign when he made the complaint of race discrimination to VEOHRC, and his complaint related specifically to the ending of his employment. Mrs Naidu also sought to distinguish the decision in Birch because in that matter the Applicant’s complaint dealt directly with her dismissal. It stated “the Respondent discriminated against her by terminating her employment.” 38 The Federal Magistrate in Birch therefore concluded that the similarity in both the particulars of the allegations in the complaint, and the application to the Commission, gave further weight to the complaint being related to dismissal.

[42] Mrs Naidu also submitted that simply because some of the same material was contained in both matters is “not determinative of whether that complaint related to dismissal,” and the complaint to VEOHRC only related to the events preceding Mrs Naidu’s dismissal, and not the dismissal itself. 39

[43] The submissions provided on her behalf concluded by indicating:

“The purpose of the prohibition on multiple applications in the FW Act is to prevent an employer being twice the vexed by the same complaint. In this case VEOHRC provided dispute resolution services to the parties in relation to a dispute regarding alleged discrimination by the Respondent during the Applicant’s employment. The dispute resolution ended when the Respondent notified VEOHRC that it wished to withdraw. The Respondent has only been required to deal with a single application or complaint against it in relation to the Applicant’s dismissal and that application is the claim for unfair dismissal.” 40

[44] As indicated, the matter was never determined. At the conclusion of the proceedings the Commission reserved its decision and shortly afterwards Mrs Naidu filed the Notice of Discontinuance. She did so, apparently, on advice from her solicitor after she had proceeded to make application to VCAT in regard to her original complaint.

[45] The action by Mrs Naidu to escalate her complaint to the VEOHRC by means of a further application to VCAT clearly occurred after the time when she made her unfair dismissal application to the Commission. Based on the scheme of the Act, which refers to the Commission being satisfied the “person made the application ... without reasonable cause,” and the two Full Bench decisions that have been referred to, I am satisfied the fact Mrs Naidu made a subsequent VCAT application is not relevant to the determination of this application for a costs order.

[46] Both Full Bench decisions in E. Church and Qantas make clear that the point at which the Commission must determine whether or not an application has been made “without reasonable cause” is at the time the application was made. Therefore, it is not appropriate to have regard to Mrs Naidu’s subsequent VCAT application in the determination of this application. The matter is required instead to be determined based on the circumstances existing at the time her unfair dismissal application was made to the Commission, and not with regard to what might have happened subsequently.

[47] In coming to this conclusion it is acknowledged Mrs Naidu’s subsequent action in making application to VCAT might bring her within the s.725 “multiple actions” prohibition, had she continued to pursue her unfair dismissal application. It is unclear why she took this action, although it appears it was not based on the advice of her solicitors at the time. It is also unclear when she first decided to take this next step. In any case she discontinued her unfair dismissal application shortly afterwards and, as a consequence, her actions cannot be said to have acted to unreasonably prolong the unfair dismissal application. However, for the reasons indicated above I am not satisfied it is appropriate to take the fact of her VCAT application into account in the determination of this matter.

[48] The Full Bench decisions also make clear the power to order a party to pay costs should be exercised cautiously, and only rarely, and only in a clear case. In regard to “without reasonable cause” as relied upon, in particular, by Causeway in the present matter the Full Bench in E. Church concluded the test is not whether the application might have been unsuccessful but, instead, whether it should not have been made. The Full Bench also made reference to the decision of Wilcox J in Kanan when he concluded, “But where 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.” 41 His Honour contrasted this situation with one where the matter was to be determined based on one or more arguable points of law.

[49] In its submissions in the proceedings in August last year Causeway acknowledged there were two clear differences between the parties. It indicated the first concerned whether a complaint made to the VEOHRC was an application under another law for the purposes of s.725. The particular focus in this case concerned a situation in which a complaint had been made to VEOHRC, but prior to a subsequent application being made to VCAT seeking a determination. There was also an issue to do with the impact on these considerations of recent changes to the Victorian Equal Opportunity Act.

[50] The second difference as to the application of the legislation was indicated by Causeway to be whether the complaint to VEOHRC was sufficiently connected to the termination of Mrs Naidu’s employment to satisfy the requirement to be a complaint in relation to dismissal for the purposes of the Fair Work Act. This issue arose particularly because her complaint was made more than a month prior to her dismissal, and was indicated by her to relate to matters other than her dismissal, namely issues to do with bullying, harassment and discrimination arising during her 5 years of employment with Causeway. In this context Causeway indicated there were a number of authorities it relied upon in support of its submissions on this point. It then continued to provide detailed written and oral submissions about both matters.

[51] Detailed written and oral submissions were also provided, in response, on behalf of Mrs Naidu. These submissions took issue with the meaning of the word “complaint.” They highlighted the fact the complaint was made well before Mrs Naidu was dismissed. They also sought to distinguish the authorities relied on by Causeway. Other authorities were also referred to and relied upon.

[52] I am satisfied the resolution of the matter at that time depended on the determination of arguable points of law. Given this situation, and the contested nature of the submissions provided by the parties, I am not satisfied it can be concluded on the facts apparent to Mrs Naidu at the time she made her application it was clear her application must fail.

[53] It is also noted that Causeway did not seek to argue in the proceedings in August last year that Mrs Naidu’s unfair dismissal application was made “without reasonable cause,” or that it be dismissed under the powers available to the Commission in circumstances where an application has “no reasonable prospects of success.” Its approach in its submissions in the proceedings at the time indicated the matter was required to be determined on the basis of arguable points of law. It is only with the subsequent knowledge of her application to VCAT that Causeway now makes the submission the unfair dismissal application was made “without reasonable cause.”

[54] In conclusion, it is not necessary in the context of these proceedings to come to a definitive view about whether Mrs Naidu would have been successful in opposing Causeway’s jurisdictional objection to her unfair dismissal application. However, having had regard to all the circumstances I am not satisfied it can be concluded her unfair dismissal application should not have been made. It follows that I am not satisfied it was made “without reasonable cause.” In addition, while Causeway did not make detailed submissions about the requirements to be satisfied in regard to s.400A of the Act, I am not satisfied it has incurred costs because of an unreasonable act or omission by Mrs Naidu in connection with the making of her unfair dismissal application. In any case, shortly after making application to VCAT Mrs Naidu discontinued her unfair dismissal application .

[55] It therefore follows that I am not satisfied it is appropriate to exercise the discretion under s.611(2) and/or s.400A to make an order for costs. The application for costs is dismissed.

COMMISSIONER

Appearances:

Mrs. Gade Naidu appeared on her own behalf.

Ms. Erin Hawthorne of Seyfarth Shaw appeared on behalf of Causeway Inn Pty Ltd.

Hearing details:

2014.

14 October:

Melbourne.

 1   Notice of Discontinuance submitted by the Applicant’s Representative, signed 22 August 2014

 2 F6 submitted by the Respondent at Question 3, point N(ii)

 3   Fair Work Act 2009 (Cth) at s.400A

 4 Ibid at s.611

 5   Exhibit F1 at attachment GN1

 6   Email from E Hawthorne to T Finn dated 20 August 2014

 7   Ibid

 8   Above n.i

 9   Exhibit H2

 10   Email from F Lenocio to the Chambers of Commissioner Gregory dated 9 September 2014

 11   Above n.iv

 12   [2013] FWCFB 1811

 13 [1992] FCA 539; (1992) 43 IR 257

 14   Submissions of the Respondent relating to the Application for Costs signed 23 September 2014 at para 15

 15   Ibid at para 18

 16   Ibid at para 20

 17   [2014] FWCFB 810

 18   Ibid at [16]

 19   Ibid at [18]

 20   Ibid at [21]

 21   Ibid at [26]

 22   Ibid at [27]

 23   Ibid at [30]

 24   Ibid at [31]-[32]

 25   Ibid at [33]

 26   [2013] FWCFB 1811

 27   Ibid at [19]-[20]

 28   Transcript at PN271

 29   Ibid at PN272

 30   Submissions of the Respondent in relation to the Jurisdictional Objection: Multiple Applications received 16 July 2014 at para 8

 31   Transcript at PN274

 32   [2011] FWAFB 5225

 33 [2011] FMCA 195

 34 [2012] FMCA 5

 35   Above n.xxx at para 19.7

 36   Submissions of the Applicant in relation to the Jurisdictional Objection: Multiple Applications dated 30 July 2014 at para 6

 37   Ibid at para 17

 38   Above n.xxxiv at [5] as quoted in above n.xxxvi at para 24

 39   Above n.xxxvi at para 28

 40   Ibid at para 30

 41 (1992) 43 IR 257 at 265

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