James Delany v Manage Meant Pty Ltd - [2023] FWC 2202

[2023] FWC 2202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Delany
v

Manage Meant Pty Ltd

(U2022/6967)

COMMISSIONER P RYAN

SYDNEY, 31 AUGUST 2023

Application for unfair dismissal remedy – application for costs – s.400A.

Introduction

This decision concerns an application for costs made by Manage Meant Pty Ltd (Respondent/Costs Applicant) against Mr James Delany (Applicant/Costs Respondent) pursuant to s.400A of the Fair Work Act 2009 (Cth) (FW Act) (Costs Application).

By the Costs Application, the Respondent seeks an order that the Applicant pay costs incurred by it in defence of the Applicant’s application for an unfair dismissal remedy (UFD Application) because of the Applicant’s unreasonable acts or omissions in connection with the conduct or continuation of the matter.

The Respondent contends that each of the following were unreasonable acts or omissions in connection with the conduct or continuation of the UFD Application:

a) The Applicant’s failure to discontinue the UFD Application upon receiving the Respondent’s Form F3 Response or after conciliation;

b) The Applicant’s failure to provide any substantive evidence in reply to the detailed facts and circumstances relied on by the Respondent in the Form F3 Response; and

c) The Applicant’s decision to discontinue the UFD Application without explanation.

The Respondent says those acts and omissions caused it to incur legal costs and disbursements in the amount of $27,742.05.

The matter was heard before me on 3 March 2023.

I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Ms P Forster. The Respondent was represented by Mr P Almond.

The following documents were tendered into evidence:

·Witness statement of Mr Paul Almond, the Respondent’s solicitor (Exhibit 1);

·Witness statement of Mr Dominic Grasso, solicitor employed by Kennedy’s (Australasia) Partnership, the law firm representing the Applicant (Exhibit 2);

·Witness statement of the Applicant dated 4 October 2022 (Exhibit 3);

·Form F3 Employer Response (Exhibit 4); and

·Jpeg Image of email time/date stamped 5:52pm on 14 February 2023 (Exhibit 5).

None of the witnesses were required for cross examination and the matter proceeded on the basis of the written submissions, supplemented by oral submissions at the hearing.

For the reasons that follow, the Costs Application is dismissed.

Relevant Background

In setting out the relevant background, I have had regard to the uncontested facts, the evidence tendered in the Costs Application, and the material available to the parties on the Commission’s UFD Application file.

The Respondent specialises in building/property management services, such as repair and maintenance, to strata owner corporations. The Respondent is owned and operated by Annie Nielsen and Darren Gardner.

On 3 April 2017, the Applicant commenced employment with the Respondent as a building manager. Throughout his employment with the Respondent, the Applicant worked at different sites…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2202
Decision Date: 31 AUGUST 2023

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide whether Manage Meant Pty Ltd (the Respondent) could be awarded costs against James Delany (the Applicant) under section 400A of the Fair Work Act 2009 (Cth) (FW Act) because of the Applicant’s unreasonable acts or omissions in connection with the conduct or continuation of the Applicant’s application for an unfair dismissal remedy (UFD Application). The Respondent argued that the Applicant's failure to discontinue the UFD Application upon receiving the Respondent's Form F3 Response or after conciliation, his failure to provide any substantive evidence in reply to the detailed facts and circumstances relied on by the Respondent in the Form F3 Response, and his decision to discontinue the UFD Application without explanation, were unreasonable acts or omissions. The Respondent submitted that these acts and omissions caused it to incur legal costs and disbursements in the amount of $27,742.05. The Applicant argued that the general rule is that a person in a matter before the Commission must bear their own costs and that it is well established that the Commission must exercise great caution in diverging from this position. The Applicant submitted that the intention of s.400A is not to frustrate or deter access to the jurisdiction or the robust pursuit of genuine claims; that what is an unreasonable act or omission will depend upon the circumstances; and that s.400A is a high bar. The Applicant submitted that the Respondent's contention that the Applicant’s failure to discontinue the UFD Application upon receiving the Respondent’s Form F3 Response or after conciliation was an unreasonable act or omission is without merit and must be rejected. The Applicant submitted that following the engagement of legal representation, the Respondent’s case was ‘recast’ to include additional reasons for dismissal and allegations that the Applicant’s alleged conduct was in breach of the Corporations Act 2001. The Applicant submitted that up until he appointed Mr Le Blond he was effectively self-represented. The Applicant accepted that while the UFD Application nominated a legal representative, that representative’s role was limited to providing sporadic and intermittent advice. The Applicant submitted that the Commission has not had the benefit of a hearing of the UFD Application and there has not been any findings of fact adverse to the Applicant. In this respect, the Applicant submitted that the allegations made against the Applicant are wholly untested. The FWC held that it was not satisfied that it was unreasonable for the Applicant to not discontinue the proceedings after receiving the Form F3 Response or after the conciliation conference on 14 September 2022. Accordingly, the FWC had no jurisdiction to order costs pursuant to s.400A of the FW Act. The FWC further held that even if the jurisdictional preconditions had been satisfied, for the foregoing reasons, it would as a matter of discretion decline to make an order for costs against the Applicant. The Costs Application was dismissed and an order to that effect was issued with the decision.

Orders