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…

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: [2015] FWC 5280
Decision Date: 18 AUGUST 2015

CaseChat Overview and Summary

The case of Jason Glanz v Devilbend Golf Club Incorporated involved an application for relief from unfair dismissal, including a request for costs. The applicant, Jason Glanz, sought to overturn his dismissal from his position at the Devilbend Golf Club, arguing that the dismissal was unjust and unfair under the Fair Work Act 2009. The club contested the application, asserting that the dismissal was lawful and that any costs should not be awarded. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether Mr Glanz's dismissal was indeed unfair and, if so, whether the court should exercise its discretion to order costs in his favour. The court had to consider the relevant provisions of the Fair Work Act, including sections 383 and 384, which pertain to unfair dismissal and the court's powers in relation to costs. Additionally, the court needed to assess the evidence presented by both parties to determine the fairness of the dismissal and the appropriateness of awarding costs.

The court found that Mr Glanz's dismissal was indeed unfair due to procedural deficiencies in the process. It was determined that the club had not provided adequate notice and an opportunity to respond before terminating his employment. The court emphasised that procedural fairness is a critical component of the dismissal process, and in this instance, the club had fallen short of the required standards. Given the unfairness of the dismissal, the court exercised its discretion to order the club to pay costs to Mr Glanz. The club's failure to follow proper procedures and its resistance to the application for relief contributed to the decision to award costs.

The final orders of the court were that the dismissal of Mr Glanz was unfair, and the Devilbend Golf Club was directed to pay his costs associated with the application. This outcome underscores the importance of procedural fairness in employment dismissals and the court's willingness to hold employers accountable for any procedural shortcomings.

Orders