Golowenko v Clime Investment Management Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Golowenko v Clime Investment Management Ltd [2021] FedCFamC2G 241

File number(s): SYG 2954 of 2019
Judgment of: JUDGE HUMPHREYS
Date of judgment: 10 November 2021
Catchwords: INDUSTRIAL LAW – Fair work – Fair Work proceedings – application for costs – party-party or indemnity costs sought – whether actions of applicant so unreasonable as to allow indemnity costs – actions not unreasonable – no costs awarded – application dismissed.
Legislation:

Fair Work Act 2009 (Cth), ss 361, 570

Federal Circuit Court of Australia Act 1999 (Cth), s 34

Federal Circuit Court of Australia Rules 2001 (Cth), r 21.02

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 1.04, 13.02, 22.02

Cases cited:

Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879

Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879

Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23

Baker v Patrick Projects Pty Ltd (No2) [2014] FCAFC 166

Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143

Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143

Cross v Harbour City Ferries Pty Ltd T/A Harbour City Ferries & Ors (No 2) [2017] FCCA 1713

Health Services Union v Jackson (No 5) [2015] FCA 1467

McLoughlin v Randstad Pty Ltd (No 2) [2021] FCAFC 177

Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14

Simic & Norton [2017] FamCA 1007

Torpia v Zarfati [2009] FMCA 166

Trustee for the MTGI Trust v Johnson (No 2) [2016] FCAFC 190
Division: Division 2 General Federal Law
Number of paragraphs: 63
Date of last submission/s: 4 November 2021
Date of hearing: 7 October 2021
Place: Parramatta
Counsel for the Applicant: Mr Lloyd
Counsel for the Respondent: Mr Fogarty

ORDERS

SYG 2954 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ANTHONY JOHN GOLOWENKO

Applicant
AND:

CLIME INVESTMENT MANAGEMENT LTD

Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

10 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application for costs is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. On 13 November 2019, Anthony Golowenko (“the applicant”) commenced proceedings in this Court in the Fair Work Division alleging breaches of the Fair Work Act 2009 (Cth) (“the Act”) by the Clime Management Ltd and Mr Rod Bristow (“the respondents”) by the taking adverse action against him, including his unlawful termination from the first respondent.

  2. The applicant sought the…

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Details
Case
[2021] FedCFamC2G 241
Decision Date

CaseChat Overview and Summary

In the Fair Work Commission, Golowenko brought a claim against Clime Investment Management Ltd for unfair dismissal, alleging that his termination was due to his exercisable workplace rights. The matter proceeded to a hearing, and after unsuccessful mediation, the respondents made a settlement offer of $35,000, which decreased by $5,000 per week if not accepted within seven days. Golowenko sought costs on an indemnity basis, arguing that the respondents' actions were unreasonable. The Commission considered whether the justice of the case required indemnity costs or if there was a special or unusual feature of the case that warranted departure from the ordinary practice.

The central issue before the Commission was whether the applicants' actions were so unreasonable as to justify an award of indemnity costs. The Commission noted that the test for such costs involved whether the justice of the case required it or if there was a special or unusual feature of the case. Golowenko argued that the respondents' actions were unreasonable and that the settlement offer was inadequate. The Commission considered the evidence and concluded that the applicants' actions were not unreasonable, given the context of the case and the settlement offer made.

Given the above, the Commission found that the applicants' actions were not so unreasonable as to warrant indemnity costs. The settlement offer, though initially below what Golowenko sought, was not deemed unreasonable given the circumstances. The Commission dismissed the application for costs on an indemnity basis.

The Fair Work Commission dismissed the application for indemnity costs, finding that the applicants' actions were not unreasonable. No costs were awarded to Golowenko.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The test as to whether indemnity costs should be awarded, is whether the justice of the case might so require or, whether there exists some special or unusual feature of the case to justice for the Court in departing from the ordinary practice: (see; Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879).THE EVIDENCE AND CONSIDERATION To a large extent there is little disagreement as to the pertinent facts. From 1 June 2016 until 31 January 2019, the applicant was employed by the respondent in the position of Chief Investment Officer. For the vast majority of this time, the applicant reported to Mr Abernathy, in his capacity as the company’s executive director. The financial year ended on 30 June 2017, and the applicant received a significant cash bonus and the issuance of long-term share incentives and salary increase. In respect of the financial year ending 30 June 2018, the applicant received a significant cash bonus and salary increase. The applicant claims that he received positive feedback concerning his work performance conducted by Mr Abernathy in 2017. Arising out of his employment, in March 2018, the applicant became a Director of Foreign Capital Ltd, as a representative of the first respondent and was reappointed to this position in October 2018. The second respondent, Mr Bristow, commenced employment as the first respondent’s Chief Executive Officer (“CEO”) in September 2018. The applicant reported to Mr Bristow until his employment terminated in January 2019. It is quite clear that issues arose between the applicant and the first and second respondent almost immediately after the second respondent commenced in his role as CEO. The applicant pleaded that the first respondent took “adverse action” against him because of his exercisable workplace right to complain in September 2018. The applicant alleges that in January 2019 he made a further complaint or enquiry concerning the fairness and reasonable framework timelines for the first respondent’s management of his work performance. The applicant pleaded that the first respondent took an unlawful adverse action against him and terminated his employment because of his exercisable workplace rights in September 2018 and in January 2019. The applicant was advised that his employment would be terminated in January 2019, due to the reason of redundancy. It took the applicant some two years to find comparable employment. The applicant’s position was that his termination was referable to actions taken by Mr Bristow. It was put to the Court that any issues with the applicant’s performance were not raised with him and that issues only commenced after Mr Bristow commenced employment with the first respondent. It is common ground that an initial offer of settlement was made by the respondents prior to the commencement of the proceedings. Following the commencement of proceedings, and after an unsuccessful Court ordered mediation, in February 2021 a settlement offer of $35,000 (less any applicable tax and inclusive of costs) was made, with the amount to decrease by $5,000 per week commencing 7 days after the offer was made. The Court understands that this is commonly referred to as a ‘cascading offer’. The amount of $35,000 was only marginally above the initial pre litigation settlement offer made by the respondents. It was well below the amount sought by the applicant of initially $239,998 and later $189,984 (less applicable tax and inclusive of costs).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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