Jason Glanz v Devilbend Golf Club Incorporated
[2015] FWC 5280
•18 AUGUST 2015
| [2015] FWC 5280 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Glanz
v
Devilbend Golf Club Incorporated
(U2014/16663)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 18 AUGUST 2015 |
Application for relief from unfair dismissal - costs
[1] On 4 May 2015 I issued a decision and order dismissing the application made by Mr.Jason Glanz under s.394 of the Fair Work Act 2009 (‘the Act’). On 11 May 2015 Devilbend Golf Club Incorporated (‘Devilbend’) made an application for costs under ss.400A, 402, and 611 of the Act. By agreement the matter was to be determined on the papers. However, the parties raised issues of fact between them and I was therefore required by the Act (s.397) to hear the matter. A conference took place on 6 August 2015.
[2] I have taken account of all submissions and material put.
[3] In these matters costs do not follow the result, but may only be ordered in a limited range of circumstances set out in s.400A, s.611 of the Act and elsewhere.
[4] My decision was handed down on 4 May 2015, and the application for costs was made on 11 May 2015. The requirements of s.402 are met.
Section 611
[5] Section 611 provides:
“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).”
[6] The concept of vexatious in the context of similar costs provisions was discussed in Holland v Nude Pty Ltd T/A Nude Delicafe 1:
[7] We turn to the first issue raised by the appellants’ grounds of appeal. The approach generally taken by members of the Tribunal as to the meaning to be ascribed to the word “vexatiously” in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust 1 (Nilsen). The Commissioner referenced this case in her reasons for decision. Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by His Honour was in terms similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or without reasonable cause”. About this provision His Honour said:
“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage : see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491. The approach of the High Court in an application for a permanent stay of criminal proceedings on the ground of abuse of process constituted by improper purpose is instructive. In Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509, at 522, Mason CJ, Dawson, Toohey and McHugh JJ said:
“Bridge LJ identified one difficulty when he said ([1977] 1 WLR, at p 503; [1977] 2 All ER, at p 586):
‘What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by product of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.’
So would we. But his Lordship, by implication, evidently sees no difficulty with the case in which the plaintiff does not wish to pursue his or her cause of action to a conclusion because he or she intends to use the proceedings for a collateral and improper purpose.”“
[7] In Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre 2 a Full Bench of the FWC considered the phrase “without reasonable cause” as it appears in s.611. That Full Bench stated:
“[5] The phrase “without reasonable cause” was considered by Wilcox J in Kanan v Australian Postal and Telecommunications Union. 5 Section 347(1) of the then Industrial Relations Act 1988 (Cth) provided that:
“A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.”
[6] In Kanan, Wilcox J said in respect of the phrase:
“A proceeding is not to be classed as being launched ‘without reasonable cause’ simply because it fails. As Gibbs J said in R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 473, speaking of the Conciliation and Arbitration Act equivalent of s 357 (s 197A):
‘... a party cannot be said to have commenced a proceeding “without reasonable cause”, within the meaning of that section, simply because his argument proves unsuccessful. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s.197A.’
In Standish v University of Tasmania (1989) 28 IR 129 at 139 Lockhart J applied the qualification in ordering costs against an applicant whose case he thought ‘misconceived’, rather than simply unsuccessful. But, as the Full Court pointed out in Thompson v Hodder (1989) 29 IR 339 at 342, ‘there may be cases which could not be described properly as “misconceived” but which would nevertheless be held to have been instituted without reasonable cause’.
It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, 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 stigmatise the proceeding as being ‘without reasonable cause’. But where it appears that, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
[8] In Deane v. Paper Australia 3 a Full Bench of the Commission said:
‘[7] The expression “no reasonable prospect of success” also appears in ss.170CF(2)(d), 170CF(3)(b) and 170CF(4). Section 170CF(4) provides for the summary dismissal of an application for relief pursuant to s.170CE, by the issue of an appropriate certificate, if the Commission concludes that the application has no reasonable prospect of success. The construction of the expression in that context was considered by a Full Bench of the Commission in Wright v Australian Customs Service. In that case the Full Bench, drawing upon relevant authority relating to summary dismissal of proceedings in various jurisdictions, held that a conclusion that an application had no reasonable prospect of success should only be reached with extreme caution and where the application is manifestly untenable or groundless.
[8] Making due allowance for the caution which must attend the exercise of a discretion to summarily dismiss an application, it appears to us that the approach in Wright is one we should follow. In other words, unless, upon the facts apparent to the applicant at the time of instituting the appeal, the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available.’
[9] In Hart v. Kangan Batman TAFE 4 a Full Bench of the Commission said that:
‘It is common ground that in relation to a costs application pursuant to s.170CJ(1) the relevant test is set out in G.H.Deane v. Paper Australia (Deane) as follows:
‘... unless, upon the facts apparent to the applicant at the time of instituting the appeal, the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available.’
[10] In Baker v Salva Resources 5 a Full Bench of the Commission followed Deane in relation to the new s.611 of the Act and said:
‘[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.’
[Footnotes omitted]
Section 400A
[11] Section 400A states:
“400A Costs orders against parties
(1) The FWC 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 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 matter.
(2) The FWC 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 FWC’s power to order costs under section 611.”
[12] Section 400A took effect in January 2013. The Explanatory Memorandum refers to this section and to s.401 in the following terms:
“Parts 3 and 4 of Schedule 6 to the Bill enhance the FWC’s ability to order costs against a party and/or their representative in unfair dismissal matters. The new `party costs’ provision applies where a party to an unfair dismissal matter (either an employee or employer) has caused the other party to incur costs by an unreasonable act or omission.”
.... Under section 401 of the FW Act, lawyers and paid agents may currently be exposed to costs orders if FWA has granted permission for a person to be represented in an unfair dismissal matter. The Bill will provide for the FWC to order costs against a lawyer or paid agent whether or not the FWC has given permission for a person to be represented.
The amendments strike a balance between the need to protect workers from unfair dismissal, and to provide a deterrent against unreasonable conduct during proceedings. The amendments will enable costs orders to be more easily made in the case of unreasonable conduct but will not prevent genuine claims from being pursued. They will discourage frivolous and speculative claims and assist in the efficient resolution of claims by encouraging all parties to approach proceedings in a reasonable manner. These measures are reasonable and proportionate to address the time and expense that an unreasonable conduct by a participant and/or their representative may cause another party to incur.”
[13] The phrase “unreasonable act or omission” used in s.170CJ(3) of the Workplace Relations Act 1996 (the WR Act). Sections 170CJ(1), (2) and (3) as they applied in March 2006 provided:
“Section 170CJ. Commission may order payment of costs
(1) If the Commission is satisfied:
(a) that a person (first party):
(i) made an application under section 170CE; or
(ii) began proceedings relating to an application; and
(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;
the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.
(2) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 170CE has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 170CE caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.”
[14] The unreasonable act or omission phrase in s.170CJ(3) was considered in Goffet v Recruitment National Pty Ltd 6, which concerned a failure to attend conciliation proceedings. In that matter the Full Bench stated:
“[35] In the absence of medical evidence of Ms Goncalves and an opportunity for the Appellant to be heard on the point no weight should attach to the affidavit of Ms Goncalves claim that she was ill on the day of the conciliation on 5 November 2008. The notice of listing for the 5 November 2008 conciliation was sent to the Respondent by fax on 20 October 2008. The matter was listed for 11.30am. The Respondent only notified the Commission that it would not be attending the conciliation when the Commissioner’s associate telephoned the Respondent to inquire of its whereabouts at the time of the conciliation. Assuming Ms Goncalves was ill, as it is submitted that she was, no explanation appears to be given for the failure of the Respondent to inform the Appellant or the Commission of the fact prior to the scheduled commencement time of the conciliation or at all at the initiative of the Respondent. That represents conduct in our view, which caused the Appellant and her representative an unnecessary attendance at the Commission for which we think she should have her costs. The failure to initiate contact with the Commission and/or the Appellant prior to the scheduled start time for the conciliation to inform it or them of the non-attendance of the Respondent was unreasonable. If the act was intentional it would be an unreasonable act. If unintentional it would be an unreasonable omission. There is no evidence that the Respondent’s conduct in this regard was an intentional act. We are satisfied that the Respondent’s conduct in respect of the conciliation on 5 November 2009 was an unreasonable omission which caused the Appellant to incur costs.”
[15] The Bench continued:
“[47] The Respondent’s failure to take steps to inform the Appellant of its intentions immediately after the issue of the notice of listing was either a deliberate or reckless act that could not be regarded as anything other than unreasonable. Alternatively, to the extent that the failure might be regarded as an omission, it was equally unreasonable. That those unreasonable acts or omissions caused the Appellant to incur the costs in connection with the conduct of the proceeding is unquestionable. We are satisfied that the Respondent must be ordered to pay the Appellant’s costs of and incidental to the submissions and preparation for arbitration. We allow also the costs on an indemnity basis in respect of the costs application.”
[16] A Full Bench considered the former s.170CJ(2) and (3) in Brazilian Butterfly Pty Ltd and Charalambous 7. It addressed the authorities relevant to these provisions before stating:
“[39] Very strong prospects of success will not always justify a failure to participate in settlement negotiations initiated by a serious settlement offer from the other party. For example, where reinstatement is not sought and the amount offered by a respondent is equivalent to the statutory cap on compensation that can be ordered pursuant to s.170CH, it will likely be unreasonable for an applicant to fail to agree to a settlement on those terms, irrespective of how strong the applicant’s case is. Of course, even then, it is possible to conceive of circumstances where a failure to agree terms of settlement on the basis of such an offer would not be unreasonable. For example, depending upon the circumstances, it may be entirely reasonable for an applicant to insist upon a withdrawal of the dismissal and acceptance of a resignation in its stead if this were necessary to repair substantial damage done to an applicant’s professional reputation and future professional job prospects as a result of the dismissal.
[40] On the other hand, modest or even poor prospects of success on liability or remedy will not necessarily always make it unreasonable for a party to fail to agree terms of settlement that may lead to the discontinuance of the application. For example, an applicant who was a long term employee close to retirement may have very substantial contingent superannuation entitlements that will be lost unless he or she obtains reinstatement. The difference between the value of those contingent entitlements and the amount offered by the respondent as a monetary settlement may be so great as to make it reasonable for the applicant to refuse the respondent’s offer, notwithstanding that the applicants’ prospects of success are only modest or even poor. Again, each case will turn on its own facts.”
(references removed)
[17] The Full Bench continued:
“[43] A reasonable person, who is a party to proceedings pursuant to s.170CE, when confronted with an offer of settlement from the other party, will determine whether, and if so, how to respond to such an offer after considering all the circumstances of the case, including:
- the terms of the settlement offered in relation to the relief sought;
- the relative strengths of the parties’ cases (and thus their relative prospects of success) in relation to both ‘liability’ and the relief sought;
- any assessment of the merits in the certificate issued by the Commission pursuant to s.170CF(2);
- the likely length and cost of proceeding to a hearing if the matter does not settle; and
- any adverse consequences that will accrue to a party if they accept a settlement on particular terms rather than successfully prosecute or defend the primary application, as the case may be.
[44] This list is not intended to be exhaustive. All of the circumstances are relevant and, as is made clear in the joint judgment in Blagojevch, there is no basis in the Act for giving primacy to any particular factor in every case.
[45] In many, if not most, cases there will be contested facts or contested interpretations of particular facts. What knowledge in this regard is to be attributed to the reasonable person considering whether, and if so, how to respond to an offer of settlement? The passage in Abbey, upon which the Commissioner relied was, clearly enough, an attempt to grapple with that problem. However, there is a tension between the way in which that passage is expressed and the apparent acceptance by the majority in Blagojevch that a party can act reasonably in responding to an offer of settlement by reference to that party’s “genuine perception or recollection of events”. The Full Court’s formulation is to be preferred although, even then, it is not to be seen as a substitute for the words of the Act. Of course, there is an issue as to what constitutes a “genuine” perception. The Full Bench in Kangan Batman TAFE observed, we think correctly, that:
“A party cannot simply disregard matters that should have been reasonably apparent and then claim that such matters were not apparent to them.”“
(references removed)
[18] A Full Bench said in Stagno v Frews Wholesale Meats 8:
“This last extract introduces a point of distinction between s.170CJ(1) and s.170CJ(2). The former refers to `without reasonable cause’, the latter to `acted unreasonably’. This anomaly, as it was described, is noted by a full bench in K.M. Lloyd v. International Health and Beauty Aids Pty Ltd t/as Elly Lukas Beauty College [Print Q5446] and, by inference, the bench is of the view that the tests are different in s.170CJ(1) and (2). That there is a different formula is clear but we are of the view that the formulations are based on the stage of proceedings at which they occur. Section 170CJ(1) relates to the initiation of proceedings. Section 170CJ(2) relates to the failure to discontinue or the discontinuance of the matter. In each case what attracts the discretion to award costs is unreasonable action or the absence of sufficient reason for the action taken. What is considered to be without reason is determined by reference to the stage that the proceeding has reached. We note that this leaves open the possibility that proceedings may commence which are with reasonable cause but may, in particular circumstances at a later stage, be further prosecuted unreasonably.
“We are of the view that a party to a proceeding commenced under s.170CE of the Act in which the Commission has begun arbitrating has acted unreasonably in failing to discontinue the matter if when, at the relevant time, upon the facts apparent to the applicant there was not substantial prospect of success.”“
Decision on Costs
[19] Costs do not follow the decision, but are subject to a number of statutory tests which I have already discussed. The Club submits that Mr.Glanz made an application the basis of false and invented evidence, applying without reasonable cause, and it should have been apparent to him that his application had no reasonable prospect of success 9. It referred to the offer made by the Club to settle on the basis of Mr.Glanz withdrawing the claim and the Club then abandoning its claim for costs10. The Club submits11 that Mr.Glanz acted unreasonably in various respects and that costs should therefore be ordered. The grounds alleged included:
- lying to officers of the Club; 12
- refusing to follow lawful and reasonable directions; 13
- maintaining proceedings on the basis of ‘false and invented evidence’ 14, “believing that he could convince the FWC in its truth, despite its falsity”15;
- applying without reasonable cause 16, where it should have been apparent to him that his application had no reasonable prospect of success17;
- failing to accept an offer made by the Club to settle on the basis of Mr Glanz withdrawing the claim and the Club then abandoning its claim for costs 18; and
- providing false information in regards to whether Mr Glanz had obtained suitable new employment during settlement negotiations in December 2014. 19
‘[12] I am not satisfied that the golf ball swap occurred. I had the opportunity to observe the witnesses giving evidence and I do not accept the applicant’s evidence, including his explanations for the transactions above. I prefer the evidence of other witnesses giving contrary evidence. The applicant’s evidence is somewhat contradictory and unlikely. Even if a golf ball swap did occur on some or all occasions claimed to some degree it was not authorised, and was not appropriate. It was a reason given by the applicant to justify his conduct.
[13] The employer alleges that the applicant took the benefit of free labour from employees of the Club when engaged in a repair business at the Club.
[14] The applicant’s contract of employment provided that the terms of engagement included the following:
‘Repairs: All income less 106% of cost of inputs.’
[15] The applicant accepted during cross examination that cost inputs included goods and labour, and that two employees, Messrs.Churches and McIntosh did some of that work. In my view no reasonable explanation was put as to why such labour would not be a cost of input within the terms of the contract. A valiant attempt was made by the applicant to maintain that his understanding was different at the time and other explanations, but with respect I was not persuaded by these explanations. The applicant received the benefit of inputs without complying with the terms of his contract.
[16] The employer submitted that the applicant lied to the President and Treasurer of the Club about the golf ball swap, which did not occur, and lied as to whether Club accounts were being used to purchase repair items. The issue of the applicant’s statements to the President and Treasurer about the golf ball swap are dealt with above. I am satisfied that the applicant told the employer that there was a golf ball swap when it never occurred.
[17] Mr.Bolden gave evidence that on 13 November the applicant did not concede any purchases. He also gave evidence that the applicant told the meeting on 30 October 2014 that there were no costs associated with his lessons or repairs ‘that were being borne by the Club. Mr.Glanz again said that there were none’. This was denied by the applicant. Mr.Wilkins conceded in cross examination that on 13 November 2014 the applicant acknowledged that there were repair items being bought through the Club’s accounts but that before that he ‘had insisted that there were no inputs, meaning nothing had been bought on the club’s accounts for his repair business’. I also note the applicant’s handwritten notes of the meeting and evidence.
[18] I had the opportunity to observe the witnesses giving evidence and prefer the evidence of Mr.Bolden. In my view Mr.Glanz did not tell the meeting the meeting of 30 October or 13 November 2014 that there were costs borne by the Club for his repair business.’
[19] The employer submitted that the applicant refused to follow a direction given on 10 October 2014 and 30 October 2014 by the Treasurer as to the accounting procedure to be adopted with respect to lesson and repair income. Mr.Bolden gave evidence that he gave this direction on 10 October 2014 and 30 October 2014, and that the applicant refused to follow the direction. The meetings of 10 and 30 October were Finance Committee meetings. The applicant was directed by the General Committee and complied.
[20] The applicant’s contract of employment variously provided that the applicant was to implement the ‘General Committee’s instructions’, report ‘to the General Committee’, and so on. Exhibit D1, the Organisational Chart of the club, appears to indicate that the Finance and Development Committee reports to the General Committee and the General Manager reports to it. Exhibit G2 is a document adopted by the Club’s General Committee and provides that the Treasurer is to ‘Establish the necessary accounting, book keeping and control procedures for proper financial management’.
[21] In addition the Treasurer acted with the support of the Finance Committee and its members including the President. The applicant was required to comply with delegated authority such as that possessed by the Treasurer. In my view the applicant breached a lawful and reasonable employer direction.
[22] There was a valid reason for termination of employment.’
[Footnotes omitted]
[21] In relation to the issue of a valid reason I made findings about the evidence I preferred and other matters including contemplating that ‘even if a golf ball swap did occur …’. I also considered legal argument about ‘delegated authority such as that possessed by the Treasurer..’. This was an issue that had to be considered and a ruling made. The circumstances are different in nature to those considered in Walker v. Mittagong Sands Pty Limited 20. In addition a costs order is discretionary, and given the nature of the arguments that I had to consider there was something to be said for Mr.Glanz’s case on for example delegated authority, even if ultimately I rejected it.
[22] I made findings against the Club in relation to the issue of s.397(c), one aspect of procedural fairness:
[24] The applicant makes a number of criticisms of the procedures followed in terminating his employment. Mr.Wilkins gave evidence about the conduct of the interview on 13 November 2014, following which the applicant was terminated. The applicant provided an explanation for his conduct, including the alleged ‘golf ball swap’. He was provided with a document entitled ‘Transaction Audit Dec 2014’. It took him approximately 9 minutes to go through the document during cross examination and comment on each page. The document was in the room with him during the break in the meeting which was at least 20 minutes. As previously stated, in effect he conceded that there were approximately 198 grips bought by the Club for the repair business, costing about $1,528.20 if the documents are correct.
[25] The applicant complains that he did not have an opportunity to read the audit document. However, he could have read it during the break. In any event Mr.Glanz, the applicant concedes that he had the opportunity to read the document during the 20 to 25 minute adjournment, on his own case. He complains however that he was not given an opportunity to speak to it. Mr.Wilkins denied that he asked to respond to the document as did Mr.Bolden. The written notes of the meeting prepared by Mr.Moloney record that Mr.Glanz asked ‘Can I even get a chance to respond to this (the written document only provided at commencement of the meeting)’. This suggests that he did ask for that opportunity and was denied it. The applicant complains that neither Mr.Bolden nor Mr.Wilkins asked Mr.Glanz (the applicant) whether he had anything to say. This is not consistent with the evidence of Mr.Wilkins who said that he was asked ‘whether he had anything else to say or wanted to know anything, and the answer was no’.
[26] In my view there were a number of procedural failings in giving Mr.Glanz an opportunity to put a case. However, some degree of opportunity to put a case and respond to the issues was given to Mr.Glanz, and he availed himself of it by explaining the golf ball swap. His analysis of the audit document given to me was not in my view credible, and did not advance the matter much further. It was not an answer to the complaints about his conduct. Overall even if more time or notice had been given it would not have made an appreciable difference. There is some degree of force in the employer submission that Mr.Glanz actually put his best case at the time of the meeting, and it continues to be his case. Nevertheless the Club should have given greater opportunity to Mr.Glanz to put a case.
[23] Given those findings there was something to be said for Mr.Glanz’s application on those issues. It cannot be said that the application was manifestly untenable or groundless, or not reasonably arguable on the issue of procedural fairness, or was made without reasonable cause, in relation to the issue of procedural fairness. Given this an issue of weight arose in relation to those findings and the overall facts and findings. The case has not been made out for an order for costs, and as a matter of discretion I would not order costs.
[24] In relation to the alleged unreasonable conduct of Mr.Glanz during negotiations and before that, the Club submits that Mr.Glanz misled them in stating that he had not obtained new employment and therefore withdrew an offer to settle on the basis of 4 weeks wages, a resignation and statement of service 21. Mr.Glanz disputes this stating that he was in negotiations for a new job and that it had lesser wages and conditions. Mr.Glanz through solicitors said ‘our client has not found employment’, which was arguably strictly correct at the time, but was not as full an account as it could have been. However, it would have been open to the Club to ask if he was in negotiations when it received the letter rather than to simply withdraw an offer which led to a full arbitration. I also note that the Club did not participate in conciliation before the Commission. It is not a requirement that it do so, but a party genuinely seeking good faith negotiation often finds it advantageous to pursue negotiations through such avenues in order to see what would eventuate. It is not possible to predict the outcome of many conciliation conferences. I accept that it is common and legitimate for parties to make offers and withdraw them for various reasons, and in the circumstances I am not critical of the Club nor of Mr.Glanz. In the circumstances there was no obligation on Mr.Glanz to accept a lesser offer when a better offer was withdrawn. Overall I do not consider that there are grounds for an order of costs, and as a matter of discretion would not order costs.
Conclusion
[25] I dismiss the application for costs. An order is contained in PR570944.
DEPUTY PRESIDENT
Final written submissions:
13 July 2015 – Applicant submission on costs
15 July 2015 – Respondent submission in reply on costs
30 July 2015 – Applicant submission in reply on costs
1 [2012] FWAFB 6508.
2 [2013] FWCFB 4056.
3 PR932454.
4 PR958003 at paragraph 21.
5 [2011] FWAFB 4014.
6 [2009] AIRCFB 626.
7 PR968915, 25 August 2006.
8 1998 84 IR 270.
9 Respondent’s Submissions Seeking Costs, 11 May 2015, paragraph 6-20.
10 Respondent’s Submissions Seeking Costs, 11 May 2015, Attachment 2.
11 Respondent’s Submissions Seeking Costs, 11 May 2015, paragraphs 7 – 19.
12 Ibid, paragraphs 7 and 14.
13 Ibid, paragraphs 7 and 15.
14 iBid, paragraph 6(a).
15 Ibid, paragraph 16.
16 iBid, paragraph 6(b).
17 iBid, paragraph 6(c).
18 iBid, paragraphs 5 and 19 and Attachment 2.
19 Respondent’s Reply On Costs, 15 July 2015, paragraphs 5 – 8.
20 [2011] FWA 2225.
21 Respondents Reply on Costs, paragraphs 6-14.
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