Helen Miles v Colmar Brunton Pty Ltd

[2015] FWC 4787

[2015] FWC 4787

The attached document replaces the document previously issued with the above code on 7 August 2015.

Correction to Hearing details.

Renee Mooney

Associate to Commissioner Bissett

Dated 7 August 2015

[2015] FWC 4787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helen Miles
v
Colmar Brunton Pty Ltd
(U2014/15713)

COMMISSIONER BISSETT MELBOURNE, 7 AUGUST 2015

Application for relief from unfair dismissal - s.611 application for costs.

[1] On 8 May 2015 I handed down a decision ex tempore in which I dismissed Ms Miles’ application for unfair dismissal remedy on jurisdictional grounds. In particular I decided not to grant Ms Miles an extension of time in which to lodge the application in the absence of exceptional circumstance (the primary matter).

[2] At the commencement of the proceedings in the primary matter I granted the Respondent permission be represented by a lawyer or paid agent pursuant to s.596(2)(a) of the Fair Work Act 2008 (the Act) taking into account the complexity of the matter. Ms Miles represented herself.

[3] On 21 May 2015 Colmar Brunton Pty Ltd (the Respondent) made an application for costs pursuant to s.611(2)(b) of the Act against Ms Miles. The application is within time and opposed. At the hearing for costs both parties were represented.

Legislative provisions

[4] Section 611 of the Act states:

611 Costs

(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.

Note: This subsection is a civil remedy provision (see Part 4-1).

[5] The interpretation of s.611(2)(b) was considered by a Full Bench of the Commission in Qantas Airways Limited v Carter 1 where it found:

[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.

[Footnotes omitted]

[6] Considering the wording of s.611(2)(b) and the above Full Bench decision it is clear that I need only consider whether it should have been reasonably apparent to Ms Miles, on an objective basis, that her application had no reasonable prospects of success at the time of lodgement of her application on 4 December 2015. The test is an objective test of what should have been reasonably apparent to Ms Miles, not to other parties to the proceedings.

[7] It is only if the requirements of s.611(2)(b) are met, that it is possible for me to exercise my discretion as to cost.

Background

[8] Ms Miles commenced her employment with the Respondent on or about 5 October 2013 as a casual Market Research Interviewer. Ms Miles’ final shift occurred in the fortnight ending 7 March 2014, being 5 months after she first worked for the Respondent.

[9] Ms Miles was offered work based on her availability, the level of work and the type of work available. Ms Miles’ evidence in the primary proceedings was that the Respondent requires interviewers to work a minimum of three shifts each week and that interviewers were required to indicate their availability to work in any week on the Wednesday in the preceding week. The interviewers were then required to be available for shifts allocated by the Respondent but that, with appropriate notice, shifts could be cancelled.

[10] Ms Miles’ evidence is that until Christmas 2013 she worked the minimum shifts, had very few cancellations and that the process of shift allocation flowed smoothly. 2 Around February to March 2014 Ms Miles became disgruntled with the Respondent and her direct manager as her shifts declined. She believed less experienced, cheaper staff were allocated to shifts over her. As a result, in mid-March, Ms Miles stopped providing her availability for shifts to the Respondent. She advised her supervisor that they could contact her if they had work as she did not want to keep being available for this type of work when she was not guaranteed the shifts.

[11] In early November 2014, some 8 months later, Ms Miles contacted the Respondent to indicate she was available for weekend shifts. 3 On 20 November 2014 Ms Miles received an email indicating that she was no longer employed by the Respondent. Her name had been removed from the system as she had not been available for work for 3 months or more. Ms Miles lodged her application for unfair dismissal within 21 days of receipt of the email.

[12] Ms Miles represented herself in the unfair dismissal proceedings. She did however seek out free legal advice on at least three occasions, including participation in the Commission’s pro-bono program. On the first and only relevant occasion, prior to lodging her application, Ms Miles sought assistance through the Law Institute of Victoria where she spoke to a Solicitor. This occurred in or around July or August 2014.

[13] Although Ms Miles’ evidence generally is not clear, I accept her evidence that she sought legal advice because she was concerned about her treatment by the Respondent, not only in not being contacted for shifts but also because of her belief that it was hiring lower-paid workers. I also accept her evidence that the advice from the Solicitor was limited as Ms Miles did not have her paperwork with her. I also accept that during this period she was not certain if she was still ‘on the books’ with the Respondent or that she had been dismissed. I accept that the legal advice given to Ms Miles at this time did not address her prospects of success in an unfair dismissal matter before the Commission.

[14] Ms Miles sought further legal advice after she made her application for unfair dismissal – once just prior to conciliation and then prior to the jurisdictional hearing where she was advised she had little prospect of being able to show she had six months continuous employment. As this advice was received after she made her application for unfair dismissal it is not relevant in determining what she knew when she made her application.

[15] When Ms Miles lodged her application for unfair dismissal on 4 December 2014 she had not worked for the Respondent since 7 March 2014 as she had not provided the Respondent with her availability. Further, at the time she ceased providing her availability she had only worked for the Respondent for 5 months.

Should I award costs?

[16] I am satisfied that it should have been reasonably apparent to Ms Miles that her application had no reasonable prospects of success at the time she made the application. Ms Miles however had obtained no relevant legal advice at the time she made her application such that someone might have advised her on the consequences of not having worked for, or made herself available for work for, the Respondent for some five months. It is apparent that she took no steps, in the five month period, to clarify her status with the Respondent.

[17] Any cursory examination of materials on the Commission’s website in relation to unfair dismissal would have alerted Ms Miles to the difficulty her application would have in succeeding. On the basis of the evidence in the primary matter I am satisfied that Ms Miles pursued her application in an attempt to expose what she considered to be improper work practices of the Respondent in its employment practices in addition to her belief that she had been unfairly dismissed.

[18] The Commission is seen, generally, as a jurisdiction in which the parties bear their own costs although there are circumstances where the Commission may award costs against one party or another. It is often the case that an application for costs under s.611(2)(b) will be against an unrepresented applicant who has little experience in the jurisdiction and little access to legal advice prior to making an application.

[19] Ms Miles genuinely believed that she had been unfairly dismissed. This however needs to be balanced against her failure to undertake even the most basic research before making her application.

[20] An Applicant has a right to pursue their application in the Commission. At the time Ms Miles received advice as to her prospects of success it was well after her application was made. Whilst she could have made a decision at this point to nor pursue her application this is not a matter I need to take into account in deciding if costs should be awarded.

[21] On any objective view Ms Miles should have known, had she done the most basic of research, that, at the time she made her application, it had no reasonable prospect of success.

[22] The award of costs, even if the circumstances in s.611(2)(b) have been met, is however discretionary.

[23] In reaching my decision I am mindful that Ms Miles believed she had made herself available for work but none had been offered; was not represented in the proceedings; and had not sought any specific advice on making an unfair dismissal application prior to making her application. Ms Miles was passionate, if misguided, about both her unfair dismissal application and her claim for a breach of the award (with respect to the lower paid workers).

[24] I am also mindful of the evidence and submissions of Ms Miles as to her parlous financial position.

[25] For these reasons I have decided to exercise my discretion to not award costs. I make this decision taking taken into account all of the evidence and my findings set out in this decision.

[26] Ms Miles should not take this decision as a vindication of the actions she took. She would be well minded to take more care before embarking on such a course again.

COMMISSIONER

Appearances:

S. Fitzgerald of Counsel for the Applicant.

A. Maher with P. Tolich of HR Legal for the Respondent.

Hearing details:

2015.

Melbourne:

June 25.

 1   [2013] FWCFB 1811.

 2   Exhibit A1 paragraph 5.

 3   Exhibit Miles1 paragraph 5.

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