DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Jason Thomas
v
MWS Pty Ltd
(U2018/2306)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 OCTOBER 2019

Application for an unfair dismissal remedy – application for costs by successful applicant – indemnity costs for part of proceedings – ‘party to party’ costs – principles considered – indemnity costs – numerous offers and counter offers – hiatus in exchanges – unreasonable act – no reasonable prospects of success – indemnity costs refused – order for costs on ‘party to party’ basis – parties to confer as to consent orders.

[1] This decision will determine a costs application filed by Mr Jason Thomas, the successful applicant in an unfair dismissal application filed pursuant to s 394 of the Fair Work Act 2009 (Cth) (the ‘Act’), and determined by me on 9 January 2019 in Thomas v MWS Pty Ltd[2019] FWC 62 (the ‘Decision’). Shortly stated, I found that the dismissal of the applicant was not in compliance with the Small Business Fair Dismissal Code, he had been unfairly dismissed, and I ordered his reinstatement, the payment of lost remuneration and no break in his continuity of service. Mr Thomas seeks orders from the Fair Work Commission (the ‘Commission’) for indemnity costs against the respondent, Metwide Communications, from the date that an offer of settlement closed (10 May 2018), and ‘party to party’ costs in respect of the originating application, in accordance with s 400A of the Act.

[2] Both parties were legally represented in the substantive proceedings pursuant to s 596 of the Act, and continued to be legally represented in respect of preparing submissions on the costs application. Mr I Latham of Counsel represented Mr Thomas. Mr N Kirby, of Edwards Kirby Lawyers, continued his representation of the respondent.

SUBMISSIONS

For the applicant

[3] After setting out the relevant statutory provisions and the authorities from which the principles have been developed in respect of costs applications, Mr Latham’s focus was on the behaviour of the parties in relation to offers of settlement and an alleged failure by the respondent to appropriately respond with counter offers; see: Department of Employment and Workplace Relations v Oakley[2005] AIRC 447 (PR958253); Brazilian Butterfly Pty Ltd v Charalambous (2006)155 IR 36 and Roy Morgan Research Ltd v Baker[2014] FWCFB 1175 (‘Roy Morgan’).

[4] Mr Latham relied on a statement of Mr David Pink, Solicitor, Turner Freeman Lawyers, which detailed the history of the matter and set out the various offers and counter offers that were put by the parties, which commenced with an initial offer from the respondent of $9,930 and a counter offer made by the applicant of $28,450 on 10 August 2018. Mr Latham noted that it was not until over six months had elapsed, before the respondent made a substantially increased offer of $58,781.82 on 28 March 2019.

[5] Further offers and counter offers were made in April and May 2019, effectively placing the parties…

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.

Continue reading Jason Thomas v MWS Pty Ltd

Details

AGLC: Jason Thomas v MWS Pty Ltd [2019] FWC 7324
Case: [2019] FWC 7324
Decision Date: 23 OCTOBER 2019

CaseChat Overview and Summary

Jason Thomas initiated proceedings against MWS Pty Ltd in the Fair Work Commission, seeking a remedy for unfair dismissal. The respondent, MWS Pty Ltd, opposed the application, and a subsequent issue arose regarding the costs incurred during the proceedings. The Fair Work Commission was tasked with determining the appropriate costs order, including whether the applicant was entitled to indemnity costs for part of the proceedings, and if so, whether these costs should be on a party-to-party basis or an indemnity basis.

The legal issues before the Commission included whether the applicant's conduct warranted an indemnity costs order, and if not, whether a party-to-party costs order was appropriate. The Commission considered the principles applicable to costs orders in unfair dismissal cases, focusing on the conduct of the parties, including the numerous offers and counter-offers made during the proceedings, and the hiatus in exchanges. The Commission had to determine if there was any unreasonable act by the applicant that would justify an indemnity costs order and whether the applicant had reasonable prospects of success in the proceedings.

The Commission found that while there were numerous offers and counter-offers, there was a significant hiatus in the exchanges which impacted the proceedings. However, the Commission did not find any unreasonable act by the applicant that would warrant an indemnity costs order. The respondent also did not have reasonable prospects of success. Consequently, the Commission refused the indemnity costs order but ordered costs on a party-to-party basis. The parties were directed to confer to attempt to reach agreement on consent orders regarding the costs.

Orders