Gregory John Casper v New Horizons
[2022] FWC 2321
•1 SEPTEMBER 2022
| [2022] FWC 2321 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gregory John Casper
v
New Horizons
(U2021/11580)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 1 SEPTEMBER 2022 |
Application for costs – application dismissed
Introduction
On 12 April 2022, I heard Mr Gregory Casper’s application for unfair dismissal against New Horizons Enterprises Limited (New Horizons). On 24 May 2022, I decided that Mr Casper was not unfairly dismissed by New Horizons.[1]
On 7 June 2022, New Horizons filed an application for costs against Mr Casper.
Both parties consented to my determination of the costs application on the papers.
In determining the costs application I have had regard to New Horizons’ submissions dated 21 June 2022 and 12 July 2022, and Mr Casper’s submissions dated 5 July 2022.
Basis for costs application
New Horizons seeks payment of its legal costs pursuant to section 400A and section 611 of the Fair Work Act2009 (Cth) (Act). New Horizons has sought leave to file further submissions in relation to the quantum of such costs, subject to my determination of its application for costs.
New Horizons’ primary contentions in support of its costs application are as follows:
·The assertions of fact raised against New Horizons in the unfair dismissal application (namely, as to why the dismissal was unfair), were unfounded and not supported by any evidence.
·Mr Casper did not make any attempt to substantiate any of his assertions — even by his own witness evidence. In the absence of any available evidence, it was neither open to Mr Casper to make those assertions, nor seek to rely on them to advance his unfair dismissal application.
·Applying the principles cited in Church[2] and Kanan[3], on Mr Casper’s own version of the facts of the case (or rather, lack thereof), the unfair dismissal application was without reasonable prospects of success.
·Further, or in the alternative, on an objective view of the matter, it should have been reasonably apparent to Mr Casper that the unfair dismissal application, at the time of filing, had no reasonable prospects of success in circumstances where he had no basis to make and rely on the assertions that he did.
·Mr Casper engaged in an unreasonable act in the conduct of the matter, in that he filed the Unfair Dismissal application in circumstances where he either could not prove the allegations raised in that application, or never intended to properly prosecute those allegations. When it came to filing materials in support of his application, Mr Casper only filed a two-sentence email. That email contained nothing that would have led to a finding that his dismissal was harsh, unjust, or unreasonable. The only conclusion that can be drawn from the dearth of evidence brought forward by Mr Casper is that he never had a case to prosecute. This conclusion is supported by the fact Mr Casper was repeatedly given extensions of time to comply but barely put a case forward once he did. By filing the unfair dismissal application in circumstances where Mr Casper either knew he had no evidence to support that claim, or did not care to tender that evidence, New Horizons unreasonably incurred costs in having to engage with and respond to that claim.
·Further or in the alternative, Mr Casper engaged in an unreasonable omission in the continuation of the matter, in that he failed to put on any evidence in reply to New Horizons’ materials filed on 1 April 2022, as required by the directions set in this matter. At that time, Mr Casper knew the evidence and submissions that would be relied on in opposition to his unfair dismissal application. Yet Mr Casper made no attempt to deny, dispute, or disprove any of the matters raised by New Horizons. Either, Mr Casper had no evidence or argument to put on response, or he chose not to. Whatever the case, by the time he was due to file his reply materials, he should have withdrawn his unfair dismissal application. His failure to do so meant that New Horizons incurred costs in then preparing for and attending the hearing.
·Further, or in the alternative, Mr Casper engaged in an unreasonable act in relation to the conduct of the matter, being that he failed to attend the directions hearing on 15 February 2022 without a reasonable excuse, and that his failure to attend that directions hearing caused New Horizons to unnecessarily incur costs.
New Horizons submits that Mr Casper knew, or objectively ought to have known, that the unfair dismissal application had no reasonable prospects of success. Moreover, in continuing to prosecute the application without filing any substantial evidence to support the allegations, New Horizons incurred costs in defending the matter.
Mr Casper has provided a response to the submissions of New Horizons. His primary contentions in opposition to the application for costs are as follows:
·The supremacy of the Commonwealth over all states and territories is established under s 109 of the Commonwealth of Australia Constitution Act 1977 (Cth) (the Constitution). As such, where there is an inconsistency between a law of a state and a law of the Commonwealth, the later will prevail.
·The High Court has established three approaches to determine inconsistency between state and Commonwealth legislation. These are:
1.Is it impossible to obey both laws? (the “simultaneous obedience” test);
2.Does one law confer a right which the other purports to take away? (the “conferred rights” test); and
3.Does the federal law cover the field in question? (the “cover the field” test).
·The jurisdiction of the Fair Work Commission is established by a Commonwealth Act and it must therefore be bound by the Constitution and must enforce the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth). Moreover, the President of the Fair Work Commission has the same status as a judge of the Federal Court per s 629A and under s 608 the President of the Fair Work Commission may refer questions of law to the Federal Court.
·There appears to be a clear-cut prima facie case for jurisdictional misfeasance, nonfeasance and malfeasance as practiced by the President of the Fair Work Commission, Justice Ross, and other members of the Commission. Mr Casper relies on the following grounds to support this argument:
1.The consistent misrepresentation of the jurisdiction of the Fair Work Commission by its refusal to recognise the supremacy of the current Commonwealth Constitution over all state and territory laws.
2.The practice of estoppel by silence of the nationally appointed Judiciary of the Fair Work Commission by presenting biased correspondence of case determinations eluding to the vexatious argument that Mr Casper has no chance of winning his case in reference to the Vaccination Related Matters page of the Fair Work Commission website.
3.The malfeasance with regard to Deputy President Dean who expressed her views against vaccine mandates and was subsequently banned from hearing vaccine related cases and excluded from the full bench.
4.The present evidence with respect to the Fair Work Commission’s acquiescence to Jetstar and its CEO’s requests that the Fair Work Commission rule in favour to the Respondent so as to cause the Respondent costs through liability.
5.The news media (5-year tax exemption).
·New Horizons is a National Systems Employer and therefore it entered into a federal employment contract agreement with Mr Casper. Thus, the only legally enforceable statutes applicable to all parties are the Fair Work Act and the Corporations Act as Commonwealth statutes.
·Regarding civil conscription, the precedent for the Constitution s51(xxiiiA) was set and justified with the case of Wong v Commonwealth of Australia (2009).
·The Deputy President granted New Horizons permission to be legally represented in the matter.
·On two occasions New Horizons’ legal representation applied for a dismissal of Mr Casper’s case. However, on both counts Deputy President Saunders ruled in Mr Casper’s favour, finding that it was in the interests of justice to proceed with the hearings and that the case still had merit.
·Mr Casper relied upon the hearing as an opportunity for New Horizons to provide him with the law it relied on to terminate his employment, together with the basis for New Horizons’ claims of safety and efficacy concerning its requests for him to receive alleged COVID-19 clinical, trial injections, along with a risk assessment and due process. New Horizons’ legal representation failed on all counts to provide this.
·Mr Casper sought a hearing in order for the Commission to provide the law upon which they relied on, to rule in favour of employers (namely New Horizons) to civilly conscript and coerce their employees, by way of financial pressure and threat of employment to participate in a COVID-19 clinical trial. He also sought for the Fair Work Commission to rule upon the lack of due process followed by New Horizons, by way of no risk assessment being provided, no alternative employment role being discussed or offered to Mr Casper, and no law being provided for their illegal mandates of the alleged COVID-19 clinical, trial injections. To date, Deputy President Saunders and the Fair Work Commission has failed on all counts to provide any laws relied upon or made any ruling on due process.
·Mr Casper relied upon oral submissions during his Fair Work Commission hearing that substantiated his F2 Form.
·Mr Casper refutes any claims of reasonable knowledge of the outcome of the hearing.
·Mr Casper refutes all claims that New Horizons unreasonably incurred costs in having to engage with and respond to Mr Casper’s claims. These costs were the voluntary incurrence of New Horizons, as it was not required to engage legal representation at any point in this unfair dismissal case. It was the choice of New Horizons to engage legal representation and incur any costs that come from this engagement. That is between New Horizons’ legal representatives and New Horizons and not a matter for Mr Casper to wear.
·ATAGI have very clearly stated that there are no approved COVID-19 vaccines in Australia and any claimed COVID-19 vaccines are provisionally approved for clinical trials.
·To date Mr Casper is still left without any knowledge of the laws the Fair Work Commission, Deputy President Saunders or New Horizons Ltd relied upon to make their claims, mandates and rulings contra to the prima facie ATAGI evidence.
Relevant legal principles
Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are a number of provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. Sections 400A and 611(2) of the Act are two such exceptions.
Section 400A of the Act provides as follows:
“Costs orders against parties
(1) The Fair Work Commission 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 Fair Work Commission 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 Fair Work Commission 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 Fair Work Commission's power to order costs under section 611.”
Section 400A(1) of the Act establishes two preconditions for the making of an order for costs:
(a) First, the Commission must be satisfied that the party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and
(b) Secondly, such act or omission caused the other party to the matter to incur costs.
If these two preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.
Section 611(2) of the Act provides as follows:
“(2) However, the Fair Work Commission 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 Fair Work Commission if:
(a) the Fair Work Commission 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 Fair Work Commission 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.”
The relevant principles concerning the interpretation and application of s 611(2)(a) were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[4] and may be summarised as follows:
·An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.
·An application is not made without reasonable cause simply because the application did not succeed.
·Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether 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 characterise the application as having been made without reasonable cause.
·In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there was not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.
·An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, is manifestly groundless, or discloses a case where the tribunal is satisfied it cannot succeed.
In relation to s 611(2)(b), the relevant principles were summarised by the Full Bench in Baker v Salva Resources Pty Ltd[5] as follows (footnotes omitted):
“[10] 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 as to be not reasonably arguable.”
Consideration
No reasonable prospects of success or without reasonable cause (s 611)
Mr Casper was dismissed for three reasons. I found that New Horizons had a valid reason for dismissal in relation to two of those three reasons (the Vaccination Reason and the White Feathers Reason), but not in respect of the third reason (the IT Reason).[6]
It is clear from the fact that Mr Casper succeeded in relation to the IT Reason that he had reasonable prospects of success, and did not make his application without reasonable cause, in relation to the IT Reason.
Although I found that the Vaccination Reason gave New Horizons a valid reason for dismissal, I am not satisfied in relation to the Vaccination Reason that Mr Casper made his unfair dismissal application without reasonable cause or that it should have been reasonably apparent to Mr Casper that he had no reasonable prospects of success. Mr Casper raised real issues of substance in relation to the reasonableness of the direction that required him to be vaccinated against COVID-19, including the extent to which New Horizons consulted with staff about that direction and the risk assessment it undertook in connection therewith. It was only after Mr Miles gave oral evidence in response to questions asked of him that I was able to become satisfied that the direction given by New Horizons for staff to be vaccinated was reasonable in all the circumstances. So much is clear from my reasons for decision in relation to the Vaccination Reason.[7] The fact that Mr Casper and his lay representative raised some untenable arguments concerning the Constitution and other matters does not alter my conclusion in relation to this issue.
As to the White Feathers Reason, I had to make a finding of fact to resolve a contest concerning Mr Casper’s motive in delivering white feathers to the workplace. I ultimately decided that issue against Mr Casper’s interests. But it was not a straightforward decision. I needed to weigh up evidence of a hearsay nature against a denial on Mr Casper’s part. Having regard to my reasons for decision in relation to the White Feathers Reason, I am not satisfied in relation to the White Feathers Reason that Mr Casper made his unfair dismissal application without reasonable cause or that it should have been reasonably apparent to Mr Casper that he had no reasonable prospects of success.[8]
In my assessment, Mr Casper did not make his unfair dismissal application without reasonable cause, nor should it have been reasonably apparent to him that he had no reasonable prospects of success. While some of Mr Casper’s arguments in relation to the Constitution and other matters were untenable, other matters he raised concerning the reasonableness of the direction requiring him to be vaccinated in order to remain in employment had a reasonable basis.
Even if I had been satisfied as to the jurisdictional gateway in s 611(2)(a) or (b) of the Act, I would not have exercised my discretion to award costs against Mr Casper. It must be borne in mind thar Mr Casper is not legally trained and does not have experience in litigation. He completed his Form F2 unfair dismissal application and then provided a short email in support of his contentions.[9] I accept that Mr Casper genuinely believed that he had been unfairly dismissed and articulated his reasons for his belief to the Commission and New Horizons. In order to defend Mr Casper’s unfair dismissal claim, New Horizons needed to put before the Commission relevant evidence to substantiate the reasons for Mr Casper’s dismissal and the reasonableness of the direction it gave to Mr Casper and other employees. Even though there was some complexity associated with those issues, New Horizons was quite capable of putting that material before the Commission and advocating its case without engaging external lawyers. It is a large organisation with experienced human resources professionals. I do not criticise New Horizons for deciding to engage external lawyers, who acted professionally and effectively at all times, but the fact that I consider the engagement of external lawyers not to have been necessary or reasonably necessary in the circumstances of this case is relevant to the exercise of my discretion.
Unreasonable act or omission (s 400A)
In the context of an earlier application by New Horizons to dismiss Mr Casper’s unfair dismissal for failing to attend a directions hearing, by telephone, on 15 February 2022, I found that Mr Casper acted unreasonably. Notwithstanding that finding, I decided not to accede to the request by New Horizons to dismiss Mr Casper’s unfair dismissal application at that time because (a) it was the first directions hearing and (b) it was in the interests of justice that Mr Casper be able to continue the pursuit of his genuine belief that he had been unfairly dismissed.
While I continue to accept that Mr Casper engaged in an unreasonable act or omission by failing to attend the first directions hearing, by telephone, on 15 February 2022, I am not satisfied that Mr Casper’s unreasonable act or omission caused costs to be incurred by New Horizons. There was no requirement for New Horizons to be legally represented at the first directions hearing, which only lasted a matter of minutes because Mr Casper was not present. Further, rather than agreeing to adjourn the first directions hearing and give Mr Casper an opportunity, as a self-represented litigant, to attend a second directions hearing a few days later, New Horizons made an application under s 399A of the Act to dismiss Mr Casper’s unfair dismissal application. The costs New Horizons incurred in relation to that application were caused by its decision to act in the way that it did.
I do not accept New Horizons’ contention that Mr Casper engaged in an unreasonable act by filing his unfair dismissal application in circumstances where he either could not prove the allegations raised in that application or never intended to properly prosecute those matters, as evidenced by his two-sentence email filed in support of his application. For the reasons set out above in relation to the application for costs under s 611 of the Act, I am satisfied that Mr Casper genuinely believed that he was unfairly dismissed and intended to prosecute his case to the best of his ability as an inexperienced litigant with the help, at the hearing, of a lay representative who did not assist his cause by largely raising untenable legal arguments. Putting those problematic arguments to one side, Mr Casper raised real issues for determination in relation to the reasonableness of the direction that he and other employees of New Horizons had to be vaccinated in order to retain their jobs. I am satisfied that Mr Casper’s delays in filing and serving his very brief email statement in support of his claim did not cause New Horizons to incur any material additional costs.
Nor do I accept New Horizons’ contention that Mr Casper engaged in an unreasonable omission by continuing his unfair dismissal claim and not filing or serving any material in reply to the witness statements, documents and submissions filed and served by New Horizons. The fact that no reply material was filed meant that there were fewer matters in dispute than might otherwise have been the case. But that did not obviate the need to consider and assess all of the circumstances, as disclosed in the evidence, to form an evaluative assessment as to whether the vaccination direction was reasonable.
Conclusion
For the reasons given, I am satisfied that:
· Mr Casper did not make his unfair dismissal application without reasonable cause;
· it should not have been reasonably apparent to Mr Casper that his unfair dismissal application had no reasonable prospects of success; and
· Mr Casper has not engaged in any unreasonable acts or omissions which have caused New Horizons to incur costs.
Accordingly, New Horizons’ costs application pursuant to s 400A and/or s 611 of the Act is dismissed.
DEPUTY PRESIDENT
[1] Casper v New Horizons [2022] FWC 1269 (Merits Decision)
[2] [2014] FWCFB 810.
[3] [1992] FCA 366.
[4] [2014] FWCFB 810 at [23]-[33]
[5] [2011] FWAFB 4014; (2011) IR 174
[6] Casper v New Horizons [2022] FWC 1269 at [28]-[71]
[7] Ibid at [3]-[19] & [41]-[59]
[8] Ibid at [65]-[70]
[9] Ibid at [19]
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