Isabelle Mirfield v Clear Smile Orthodontics Unit Trust T/A Clear Smile Orthodontics

[2024] FWC 2456

[2024] FWC 2456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Isabelle Mirfield
v

Clear Smile Orthodontics Unit Trust T/A Clear Smile Orthodontics

(AB2023/317)

DEPUTY PRESIDENT LAKE BRISBANE, 10 SEPTEMBER 2024

Application for costs – application for an FWC order to stop bullying – whether application was made without reasonable cause – (s.611(2)(a)) – whether reasonably apparent application had no prospect of success (s.611(2)(b)) – application not made without reasonable cause – not apparent application had no reasonable prospect of success – costs application dismissed.

1. Ms Isabelle Mirfield (the Applicant) lodged an application seeking an order to Stop Bullying (the Commission) on 24 July 2023 by an employee of Clear Smile Orthodontics Unit Trust (the Respondent) under s.789FC of the Fair Work Act 2009 (Cth) (the Act).

1. A conciliation was held on 1 September 2023 and the matter was not resolved. The matter was then listed for hearing. When the Applicant did not comply with Directions, the Applicant wished to discontinue her matter on 5 November 2023.

1. On 17 November 2023, the Respondent (the Costs Applicant) lodged an application for costs against Ms Mirfield (the Costs Respondent) under s.611 of the Act. The Costs Applicant seeks an order for costs in the amount of $4,306.50.

Should Ms Mirfield bear the Costs Applicant’s costs?

1. Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances.

1. Section 611(2) of the Act provides as follows:

“(2)       However, the FWC 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 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.”

1. In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (‘Church’),[1] the Full Bench stated that ‘without reasonable cause’ within the meaning of s.611(2)(a) does not apply solely on the basis that an application is unsuccessful.[2] It takes into account the facts known to the party at the time of instituting the proceeding that there was no substantial prospect of success.[3] The application must have been ‘so obviously untenable that it cannot possibly succeed’.[4]

1. In Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10], the Full Bench noted the following:

“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.[5]

1. Ms Mirfield stated that she was bullied because she was put on a performance improvement plan (PIP) and felt targeted. The Costs Applicant stated that it was Ms Mirfield’s poor performance that led to her being put on a PIP to improve her performance in addressing her concerns and it was reasonable management action.

1. Depending on how and why the PIP is implemented, it may or may not be reasonable management action depending on the evidence provided and therefore the claim was not manifestly untenable or groundless, or lacking merit until the matter was determined at hearing. Ms Mirfield has also made several different claims and the Respondents may seeks costs regarding the other matters.

Conclusion

1. Therefore, I exercise my discretion not to award costs in favour of the Costs Applicant in this matter. Accordingly, Clear Smile Orthodontics Unit Trust’s Costs Application pursuant to s 611(2) is dismissed.

DEPUTY PRESIDENT

[1] [2014] FWCFB at [30]-[33].

[2] Ibid at [30].

[3] see Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, cited with approval in Church at [30].

[4] Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 at [17].

[5] Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10].

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