James Bland v MPower Projects Pty Ltd

[2021] FWC 2737

[2021] FWC 2737

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

James Bland
v
MPower Projects Pty Ltd
(C2020/8213)

COMMISSIONER HAMPTON ADELAIDE, 28 MAY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection by respondent dismissed – costs application by applicant – relevant unreasonable conduct found – some costs awarded – parties to agree costs or seek final order.

1. What this decision is about

[1] Mr James Bland made an application for costs under ss.375B and 611 of the Fair Work Act 2009 (the Act) from his former employer MPower Projects Pty Ltd (MPower), the Respondent in this matter. The costs application has been made in the context of an earlier application made by Mr Bland under s.365 of the Act – a General Protections application concerning a dismissal.

[2] The history of this matter is set out in part in a decision 1 published by this arm of the Commission on 25 March 2021 (jurisdictional decision) dismissing the jurisdictional objection to the s.365 application raised by MPower and finding that Mr Bland was dismissed within the meaning of the Act. The effect of that decision being that there was jurisdiction for the Commission to formally convene a conference of the parties as required by the Act.

[3] The basis of the jurisdictional objection as finally advanced by MPower was that Mr Bland’s “employment contract” was dismissed or terminated but not the “employment relationship” and MPower by its actions did not intend to bring the employment relationship to an end. 2

[4] In the jurisdictional decision I found as follows:

“[48] Consistent with the authorities, I accept MPower’s proposition that it is the claimed termination of Mr Bland’s employment relationship with it, and not necessarily the termination of the employment contract, that is relevant to the immediate issue. However, for reasons that follow, I find that the employment relationship was terminated by MPower on 16 October 2020.

[49] Given my findings in this matter, it is clear that although there were 2 engagements between the parties, each of these engagements was in a different form and for different and specific projects. Mr Bland’s engagement as an employee for the 2020 Solar form projects was specifically for that work and I consider that this formed the basis of both the contract and the employment relationship.

[50] The termination on 16 October 2020 was expressly stated by MPower in the written confirmation to be the termination of Mr Bland’s employment and I find that this accurately represented the effect of that decision. That is, it took an action (the termination) that had the stated and actual effect of concluding the employment relationship between the parties.

[51] I would accept that there may be circumstances where an irregularly hired casual employee my remain on the books of the employer for future work and not be dismissed, despite the absence of actual work for a short period. However, this requires an assessment of the actual nature of the employment and whether an action has been taken by the employer to conclude that employment. The Respondent’s reliance on this notion is not the reality or effect of what has occurred in this matter.

[52] That is, despite the fact that Mr Bland may have in some sense remained on the books of MPower and could be approached for future Solar farm projects if and when they arise, there is absolutely no proper basis for a suggestion of any relevant ongoing employment relationship, commitment, obligation or enforceable expectations between the parties. There was only a potential opportunity for further work that was completely inconsistent with the actual nature of the extant employment. The only employment relationship between the parties was reflected in the contract of employment and there was simply no employment relationship between these parties after the termination on 16 October 2020.

[53] MPower dismissed Mr Bland at its initiative, and terminated his employment, on 16 October 2020.”

[5] This decision should be read in conjunction with the jurisdictional decision.

[6] On 7 April 2021, Mr Bland lodged this application for costs, which is opposed by MPower. Given the filing of this application, the General Protections conference was appropriately conducted by another Member of the Commission. That conference was ultimately unsuccessful in resolving the dispute and a s.368 Certificate was then issued on 16 April 2021.

[7] The costs application as originally advanced relied upon two different provisions of the Act, which are set out in detail below. Firstly, the specific costs provisions relating to General Protections applications in s.375B – on the basis that MPower caused Mr Bland to incur costs as a result of an unreasonable act or omission; and secondly, the general costs provisions set out in s.611 – on the basis the jurisdictional objection was advanced vexatiously or without reasonable cause and/or that MPower’s response had no reasonable prospects of success. Ultimately, only the s.375B element was pressed by Mr Bland.

[8] This decision deals with the costs application. As will become clear, I have determined that there is a basis to award some costs under the Act. The basis for, and consequences of that conclusion, are set out below.

2. The Statutory provisions

[9] Section 375B of the Act is contained within part 3-1 General Protections of the legislation and provides as follows:

“375B Costs orders against parties

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

(a) an application for the FWC to deal with the dispute has been made under section 365; and

(b) 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 dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

(3) This section does not limit the FWC’s power to order costs under section 611.”

[10] Section 377 of the Act provides as follows:

“377 Applications for costs orders

An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.”

[11] It is not in dispute that this costs application had been made in relation to a s.365 application and it has not been suggested that it has not been made in accordance with s.377 of the Act. It is also clear that relevant costs have been incurred by Mr Bland.

[12] The general costs provisions of the Act are set out in s.611 in the following terms:

“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 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.

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).”

[13] It is clear from s.375B(3) that an application in the present context may be made under either, or both s.375B and s.611 of the Act. However, as set out earlier, Mr Bland ultimately did not press that part of his claim founded upon s.611.

[14] The application of s.375B (and s.611) of the Act were considered by the Full Bench in Neil Keep v Performance Automobiles Pty Ltd 3 (Keep) which relevantly observed as follows:

“[11] Section 375B was inserted into the FW Act by the Fair Work Amendment Act 2013 (Cth). The new provision came into effect on 1 January 2014 and applies to dismissals which took effect from that date.

[12] The Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) states as follows:

‘New section 375B allows the FWC to order costs against a party to a general protections dismissal dispute (the first party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. New section 375B is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see section 400A).

57. This power to award costs is in relation to the dispute before the FWC and does not include costs associated with a general protections court application.

58. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

59. The FWC’s power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission.

60. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

61. New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. New subsection 375B(3) makes it clear that the new power to award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables the FWC to make costs orders against a person in certain circumstances, such as where an application is made vexatiously or without reasonable cause.’

[13] It is apparent from the Supplementary Explanatory Memorandum that the legislature intended that the power to order costs provided by s.375B only be exercised where there is clear evidence of unreasonable conduct. Such an approach is entirely consistent with the jurisprudence relating to the other costs provisions in the FW Act (such as s.611).”

3. The basis of the costs application

[15] Mr Bland contends that MPower caused him to incur costs because of the Respondent’s unreasonable acts or omissions in connection with the conduct or continuation of the s.365 application. In particular, he contends in effect that the overall conduct of the Respondent in relation to the matter was unreasonable within the contemplation of s.374B(1) of the Act and included the following acts or omissions:

•  Without reasonable cause, MPower failed to raise its jurisdictional objection in its Form F8A application and this led the Commission to (unnecessarily) conduct a conciliation conference – the Form F8A failure.

•  MPower unreasonably advanced an objection relating to s.386 of the Act and initially maintained that objection when such was inconsistent with its own evidence and in circumstances where it should have led it to withdraw the objection – the s.386 objection.

•  MPower subsequently contended for the first time that its jurisdictional objection was based upon its position that whilst the contract was terminated, the employment relationship continued – the employment relationship contention. Further, the employment relationship stood in contradiction to its s.386 objection and was misconceived.

•  Despite the directions issued by the Commission, the Respondent led evidence at the hearing of the jurisdictional objection, and this added to the length of the associated hearing – the evidence omission.

[16] Mr Bland seeks that his costs be taxed on an indemnity (full cost) basis due to the following contended exceptional circumstances:

•  Mr Bland notes that the s.386(2) argument was posited by the Respondent's HR Manager Ms Margaret Fittler as being the basis for raising the jurisdictional objection on 23 December 2020. The sworn evidence of Ms Fittler was contrary to that posited basis insofar as Ms Fittler appeared to claim that there was to her knowledge no specified task or period for which the Applicant was employed. The Applicant contends that either the jurisdictional objection was raised without there being any factual basis or subjective belief in support it, making it an abuse of process, or Ms Fittler's evidence was unreliable.

•  Even if genuine, the jurisdictional objection would not have provided the Respondent with a defence to a general protections application in respect of the subject matter of the Applicant's present application. It would have remained open to the Applicant to make a general protections application not involving dismissal (see section 321(1), item 1 (c)). The only practical benefits afforded to the Respondent in raising the groundless jurisdictional objection were that the:

a. Applicant incurred unnecessary costs in proving his dismissal; and

b. Applicant's access to any remedies to which he may be entitled has been delayed.

•  The Respondent's conduct in bringing and maintaining the jurisdictional objection appears to have eliminated the possibility of the applicant being reinstated to his employment at the Copper Coast and Agery Road solar farms, which the Applicant understands are nearing or have reached completion.

[17] Mr Bland’s application sets out a series of claimed costs based upon the Federal Court Rules 2011. He does so on the basis that the schedule of costs provided in the Fair Work Regulations 2009 (FW regulations) do not extend to awards made under s.375B of the Act.

4. MPower’s position

[18] MPower contends that there is no basis for an award of costs against it. The foundation for that proposition may be summarised as follows:

•  Section 611 of the Act provides, in effect, that the Fair Work Commission is a no costs jurisdiction. The guide to the F6 Application Form states that “…parties coming to the Commission should expect to pay their own costs.” The Commission’s power to award costs is limited under s.611(2) and section 375B to where the Commission is satisfied that a party caused costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

•  It acted reasonably at all times, and at the time MPower raised the jurisdictional objection, it believed it had reasonable prospects of success.

•  Mr Bland, in completing and filing the F8 Application, made no reference to the previous relationship between himself and MPower, to the nature of the Respondent’s activities, or to the vicissitudes of project work. These factors were directly relevant to the jurisdictional objection and the Respondent provided those details as part of its submission and during the jurisdictional hearing. It was necessary for these facts to be set out and fully considered to determine whether there was a dismissal. The decision published on 25 March 2021 did just that.

•  MPower did not consider the relationship with Mr Bland to be at an end. The Respondent had reasonable grounds in the circumstances to believe that it had reasonable prospects of successfully arguing that the employment relationship was ongoing and that the Applicant had not been dismissed. Evidence was submitted by MPower at the jurisdictional hearing as to the nature of the relationship between the Applicant and the Respondent.

•  Mr Bland chose to have paid legal representation and sought leave to have paid representation as part of the proceedings. The Applicant did so at his own risk and in the knowledge that the Commission is a no costs jurisdiction.

•  MPower had no legal representation during the Fair Work Commission process and has at all times acted in good faith. The legal concepts involved in the jurisdictional objection are not easily understood by parties that are not legally trained and the Respondent has made every effort to interpret the available information and apply the facts to the best of its ability.

[19] MPower also contends that:

•  In the Form F8A Response at question 2.1, it answered yes to the question “Does the Respondent have any jurisdictional or other objection(s) to the application?” and set out its reasons. While MPower acknowledges that its reasons were not particularly well set out at that early stage, the Applicant was on notice from 2 December 2020 that the Respondent had a jurisdictional objection.

•  It was reasonable for MPower to raise a jurisdictional objection and to argue the employment relationship was not at an end. There is no presumption that parties will have legal representation, rather parties must seek leave to be represented. In the context of a no costs jurisdiction, the Applicant continued to engage paid representation.

•  It is not unreasonable for MPower, after having set out its submission in relation to the jurisdictional hearing, to want the matter to be determined by the Commission. The Applicant’s expectation that the Respondent would simply capitulate on a matter of some complexity is in itself unreasonable, particularly where the Applicant had failed to fully set out the factual circumstances.

5. Consideration

5.1 The factual context for the jurisdictional decision and this costs application

[20] MPower is a business unit inside the larger MPower Group of companies. It designs and constructs renewable and conventional power systems including solar farms. Ms Fittler is the Head of Human Resources for the MPower Group of companies and was involved in some discussions relevant to this matter and was involved in the preparation of its response to the application and the prosecution of its jurisdictional objection. There is no direct evidence that MPower sought legal advice in relation to this matter.

[21] Mr Bland lodged his s.365 application on 6 November 2020 and he contended, amongst other matters, that he was dismissed from his employment with effect from 16 October 2020. He further contended that such was in breach of the General Protections provisions of the Act and he sought compensation, or in the alternative, compensation and a pecuniary penalty.

[22] MPower provided the following as part its Form F8A response as lodged on 2 December 2020:

“2.2 If you answered yes to question 2.1 - On what basis does the Respondent object? If the Respondent objects on multiple grounds, you can select more than one from the list below:

[X] The application is out of time (ie lodged more than 21 days after the dismissal took effect)

[X] The person was not dismissed

[X] Other

Explain why the Respondent objects on these grounds

The applicant was employed on a casual basis (refer Contract of Employment). This is the second assignment where MPower has engaged the applicant.

•  The first was as a Contractor (JR Bland Contracting ABN: 74 294 355 437), commencement date Tuesday 30 July 2019 until 17 December 2019 for the Mannum Solar Farm; and

•  Casual MPower employee from 24 February 2020 till 16 October 2020 for the Copper Coast Highway and Agery Road Solar Farms.

The labour required for MPower to build solar farms must be on an "as needed basis", and MPower employs casual employees and contract agency staff, as required to meet these project requirements.

The applicant was fully aware of these requirements and conditions as this is the second assignment on which the applicant has worked on for MPower.

The applicant has always been called upon for new solar projects and it was expected that this employment relationship would have continued following the completion of the applicant's work on the Copper Coast Highway and Agery Road Solar Farms.”

[23] MPower’s Form F8A also stated as follows:

“4.1 What is the Respondent's response to the outcome the Applicant is seeking?

1. Reinstatement and reimbursement of wages

The applicant was employed as a casual employee (see Appendix 1 Offer of Employment). The applicant's specific skill set and role was no longer required on the two projects. A significant percentage of the projects had been completed and MPower had formalised the engagement of the main electrical subcontractor (STE Solutions) which would be responsible for the remaining major works. Both projects have entered the final stages.

The original schedule for the two projects showed that they would be completed by the end of September 2020, this timeframe was known by the applicant from the commencement of his employment with MPower.

The applicant received a good will gesture on termination of an additional $1,000 site allowance in appreciation of his work.

The termination of the applicant's employment was not due to, or in any way related to, actions by the applicant during their employment with MPower. There was no adverse action against the applicant because of any workplace issues, incidents, or the actions of any other persons.

… ...”

[24] I observe that the F8A form did not indicate a jurisdictional objection based upon the absence of a dismissal. Indeed, in that response it referenced the “termination of the applicant’s employment.” The only indication of what it later argued as the basis for its subsequent jurisdictional objection is a reference to “it was expected that this employment relationship would have continued”; albeit that this reference was obtuse.

[25] A (conciliation) conference was convened before a delegated staff member of the Commission on 10 December 2020 and the s.365 application was not resolved. Despite the absence of an apparent jurisdictional objection by the Respondent at that point, the Commission Member responsible for issuing a certificate under s.368(3) of the Act sought clarification from MPower as to whether there was a jurisdictional objection associated with whether there had been a dismissal. This was done in the context of a then relatively recent Federal Court decision 4 concerning the requirement for the Commission to deal with relevant jurisdictional objections in s.365 matters.

[26] In response 5 on 23 December 2020, MPower indicated to the Commission that its position was that the Applicant was not dismissed, and it raised a jurisdictional objection. The s.365 application was subsequently allocated to the Commission as presently constituted to deal with the objection. On 2 January 2021, Mr Bland (through his lawyer, Mr Collett) wrote to MPower seeking the basis of the objection and no response was provided at that time.

[27] On 14 January 2021, Mr Collett on behalf of the Applicant again wrote 6 to MPower and indicated that the effect of the objection being raised would be to (unnecessarily) delay the advancement of the application. That correspondence also referenced the letter expressly terminating Mr Bland’s employment, invited the Respondent to withdraw its jurisdictional objection and indicated that an application for costs would be made if that was not done.

[28] On 15 January 2021, MPower responded to the letters of 2 and 14 January 2021 and advised that the jurisdictional objection was that “(Mr Bland) was employed on a casual basis and the nature of the engagement related directly to a specific project.” 7 MPower also indicated, in effect, that the time and costs involved were a matter for Mr Bland to have considered when commencing “the unfounded application”.

[29] A Directions Conference was conducted by this arm of the Commission on 27 January 2021. MPower indicated, in effect, that its objection was based upon s.386(2)(a) of the Act. I observe that this provision is directed towards fixed term or fixed task employment that concluded at the relevant time and that this did not appear to be consistent with the Respondent’s position as indicated in the Form F8A. In that light, I invited MPower to reconsider its position in light of the decisions dealing with that provision. Directions were issued on the basis that that the Respondent would confirm its position as part of that process and if required a hearing on the jurisdictional issue would be conducted.

[30] In light of the legal complexity 8 of the s.365 application and as a matter of fairness,9 Mr Bland was given permission to be represented by a Lawyer (Mr Collett) under s.596 of the Act. This was not opposed by MPower.

[31] On 22 February 2021, 10 MPower filed its outline of submissions and in so doing for the first time expressly advanced the proposition that Mr Bland’s “employment contract” was dismissed or terminated but not the “employment relationship” and MPower by its actions did not intend to bring the employment relationship to an end. Despite the opportunity to do so, no witness evidence was provided by MPower to support its objection at that time.

[32] On 4 March 2021, Mr Collett wrote 11 to MPower indicating, amongst other matters, the contradiction between its original and latest grounds for contending that there was no dismissal, referred to relevant authorities on the difference between the notions of the employment contract and employment relationship, and contended that the objection and the delay it produced would mean that any opportunity to be reinstated to work on the project had been eliminated. Mr Collett again indicted that costs would be sought, and this was repeated in correspondence12 on 8 March 2021.

[33] As outlined earlier in this Decision, following a hearing conducted on 17 March 2021, MPower’s jurisdictional objection was dismissed 13 by the Commission as presently constituted on 25 March 2021.

[34] With the rejection of the jurisdictional objection and given the fact that the Commission could not be satisfied that the application was not capable of being resolved in light of that development, the s.365 application was subject to a further conference, this time before (another) Member of the Commission. The matter was not resolved, and the s.368 certificate was subsequently issued.

5.2 Whether there were relevant unreasonable acts or omissions by MPower

[35] Mr Bland’s costs application needs to be considered against the background presumption set out in s.611(1) of the Act; namely that “[a] person must bear the person’s own costs in relation to a matter before the FWC.” This is of course subject to the specific capacity for the Commission to award costs provided in relation to certain circumstances and applications, such as s.375B.

[36] As noted by the Full Bench in Keep, “the legislature intended that the power to order costs provided by s.375B only be exercised where there is clear evidence of unreasonable conduct.” Mr Bland contended that MPower acted unreasonably on the various grounds set out earlier in this decision and I deal below with each noting that some are related, and each sets the context for the overall assessment to be made.

[37] Before doing so I observe that MPower is not an unsophisticated employer and had relevant internal HR staff fully engaged in the response and the jurisdictional objection. It did not appear to take legal advice in connection with this matter. I would not consider that an employer responding to a s.365 application, or making an objection, would necessarily need to take legal advice as part of developing and advancing its position in a reasonable manner. Given the scheme of the Act, 14 such an approach would in my view be problematic. However, at least in terms of the relevant costs provisions, the presumption is that a party will not act unreasonably so as to have the other party incur costs and this involves an assessment of all of the particular circumstances in any given case. This may include whether at least some steps were undertaken to consider the likely factual and legal foundation for its position, particularly when advancing a jurisdictional objection in a matter of this kind. This is also likely to include the circumstances of the employer and the nature of the jurisdictional objection, and when and how that objection was advanced.

[38] In this case, MPower’s response and approach to the proceedings was somewhat naive and half-hearted. This included the manner in which the Form F8A was contemplated and the absence of any identification of the non-dismissal jurisdictional objection despite the direct question being posed in the form; the changing and inconsistent basis upon which it advanced the objection; and the absence of any witness evidence to support the facts of its objection – addressed only with the latitude of the Commission during the hearing. Whether its actions were unreasonable to meet the prerequisites of a costs order under s.375B(1) remains the immediate issue.

[39] I turn now to the alleged omissions particularly relied upon by Mr Bland.

The Form F8A failure

[40] As outlined above, MPower did not identify the non-dismissal jurisdictional objection despite the direct question on that issue being posed in the form. Indeed, the language otherwise adopted by MPower in the form would be generally consistent with the notion that it accepted that it had terminated Mr Bland’s employment. It did, at one point refer to the employment relationship but not in such a manner that would have readily alerted the reader to the jurisdictional objection that it eventually ran.

[41] Mr Bland contends that this was an omission and led to the unnecessary costs of the first conciliation conference, which it asserts, would not have been conducted if the objection was reasonably stated in the form. I do accept that this was an omission; however, there is a degree of speculation associated with the proposition that this led to additional costs being incurred. That is, it is not clear that the making of the proper objection would have led to the cancellation of the first conference. This is not the automatic approach adopted by the Commission and although a party may have objected to the conference – leading to it not proceeding, I cannot be satisfied that this would have happened.

[42] I also observe that the conciliation conference provided an early opportunity for the matter to be resolved. I would however accept that should the Respondent not have raised or foreshadowed the jurisdictional objection at the conference, this would have been unreasonable and would have led to a lost opportunity to have an informed discussion around that issue. However, I have no evidence about what occurred at the first conference, other than the application was not resolved and it was assigned to a Member to consider the issuing of the certificate. This would tend to suggest that the objection was not foreshadowed or advanced at the conference; but in applying s.375B of the Act I need to be satisfied that there is clear evidence that MPower’s conduct was unreasonable.

The s.386 objection

[43] There was no factual or legal basis for the original objection based upon s.386 of the Act. The Respondent’s own Form F8A and the factual propositions advanced at the hearing of the jurisdictional objection were not consistent with any of the elements of the s.386 objection. That is either the fixed term/fixed project basis or that the cessation of the employment coincided with the end of that term or project. Further, the “casual” nature and termination rights evident in the contract were not consistent with the exclusion provided by s.386 of the Act.

[44] It was unreasonable to object on that basis and any costs incurred by Mr Bland in responding and preparing for that proposition were unnecessarily and unreasonably incurred.

The employment relationship contention

[45] This was the objection as finally advanced by MPower. This involved an assertion by the Respondent that Mr Bland’s “employment contract” was dismissed or terminated but not the “employment relationship” and MPower by its actions did not intend to bring the employment relationship to an end. It would be clear from the jurisdictional decision that I accepted that MPower’s proposition that it was the claimed termination of Mr Bland’s employment relationship with it, and not necessarily the termination of the employment contract, that was relevant to the immediate issue. However, for reasons set out in the decision, I found that the employment relationship was terminated by MPower on 16 October 2020.

[46] Further, MPower’s proposition was based upon a misunderstanding of the authorities it claimed supported its case and there was little evidence of the ongoing employment relationship that it claimed.

[47] This was a poor case but on balance not clearly unreasonable. It was broadly consistent with the notion set out in the Form F8A, relied upon some context about the earlier employment not otherwise before the Commission, had some (albeit very limited) foundation in the facts, and part of its conceptual proposition was maintained.

The evidence omission

[48] MPower did not initially provide any witness evidence to support its objection despite the opportunity to do so provided by the pre-hearing directions and the evident factual disputes relevant to its position. It did ultimately lead evidence during the hearing from Ms Fittler with the latitude provided by the Commission.

[49] This conduct was unreasonable but did not create any delay in the hearing or determination of the matter and only very marginally increased the time taken to complete the hearing itself. There was also no prejudice to Mr Bland given his capacity to rely upon the advice and representation of Mr Collett. As a result, I do not consider that this aspect supports a costs award in this matter.

Conclusion

[50] Given my findings above, I am satisfied of the existence of some unreasonable conduct by MPower that caused Mr Bland to incur costs which meet the requirements of s.375B(1) of the Act.

5.3 Discretion and the extent of costs

[51] In light of the above conclusion a discretion exists for the Commission to make an order for costs against MPower to the benefit of Mr Bland.

[52] I consider that it is appropriate to make an order in relation to the costs incurred arising from the unreasonable conduct. I consider that the costs should taxed on the basis of the relevant prescribed schedule of costs. 15 I take this view given the basis upon which I found that there was unreasonable conduct and the following observations about the other exacerbating factors relied upon by Mr Bland. Whilst the jurisdiction objection may not have provided an ultimate defence to a general protections application, as Mr Bland could in the alternative have made a s.372 (non-dismissal) application, this does not make the taking of a jurisdictional objection to the s.365 application unreasonable. In addition, although the making and disposition of the jurisdictional objection has delayed the issuing of the s.368 certificate – and by implication access to the Court (or the Commission for consent arbitration) – it is likely that in any event any process leading to the determination of the application would have taken it beyond the end of the projects concerned. This would have prevented the practical notion of reinstatement in this case.

6. Conclusions and orders

[53] Given my findings above, I am satisfied of the existence of some unreasonable conduct by MPower that caused Mr Bland to incur costs as required by ss.375B(1) of the Act. I have also found that it is appropriate to make an order in relation to the costs reasonably arising for Mr Bland from the unreasonable conduct, taxed on the basis of the relevant prescribed schedule.

[54] Mr Bland is to provide a revised costs summary to give effect to this decision. In the event that the costs amount cannot be agreed by the parties, I will consider the competing positions and determine the final order.

COMMISSIONER

Appearances:

D Collett, of Johnston Withers Solicitors, with permission for Mr Bland, the Applicant.

R Scott behalf of MPower Projects Pty Ltd, the Respondent.

Hearing details:

2021
May 14
By Video Hearing.

Printed by authority of the Commonwealth Government Printer

<PR729817>

 1   [2021] FWC 1406

 2 Jurisdictional decision at [15].

 3   [2015] FWCFB 1956.

 4   Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].

 5   Attachment DC1 to exhibit A1.

 6   Attachment DC3 to exhibit A1.

 7   Attachment DC4 to exhibit A1.

 8   Relevant to s.596(2)(a) of the Act.

 9   Relevant to s.596(2)(b) and (c) of the Act.

 10   The compliance date was delayed to permit MPower further time to settle its position – without any delay to the hearing date.

 11   Attachment DC6 to exhibit A1.

 12   Attachment DC7 to exhibit A1.

 13   [2021] FWC 1406.

 14 Including s.596, s.611 and the nature of the costs provisions more generally.

 15   For present purposes, the Federal Court costs relied upon by the Applicant appear to be appropriate.