Jordan Saunders v KFC Raymond Terrace T/A Raymond Family Partnership
[2022] FWC 1836
•13 JULY 2022
| [2022] FWC 1836 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jordan Saunders
v
KFC Raymond Terrace T/A Raymond Family Partnership
(U2022/3235)
| VICE PRESIDENT CATANZARITI | SYDNEY, 13 JULY 2022 |
Application for costs
KFC Raymond Terrance T/A Raymond Family Partnership (the Applicant or KFC) has made an application for costs orders against Jordan Saunders (the Respondent) pursuant to s.400A of the Fair Work Act 2009 (the Act).
Jordan Saunders was dismissed from their employment with KFC on 25 February 2022. On 16 March 2022, Jordan Saunders made an application for a remedy for unfair dismissal under s.394 Act. KFC objected to the application on the basis that Jordan Saunders named the incorrect employer in their application.
The matter was scheduled for a conciliation conference on 16 May 2022. The conciliation could not take place as Jordan Saunders did not attend. Both KFC and their representative attended the conciliation. On the same day, KFC wrote to the Commission requesting that the matter be dismissed for want of prosecution on the grounds of Jordan Saunders’ non-attendance and that they were not prepared to participate in another conciliation.
On the 26 May 2022, correspondence was sent to Jordan Saunders in relation to the jurisdictional objections raised by KFC and they were required to respond by 2 June 2022. No response was received from Jordan Saunders by this time. On 3 June 2022, further correspondence was sent to Jordan Saunders directing them to provide a response by 8 June 2022. They were advised that in the absence of a reply their application may be dismissed. Jordan Saunders did not respond to the jurisdictional objections raised by KFC or any further correspondence sent by my Chambers in writing. On 10 June 2022, I dismissed Jordan Saunders’ application for want of prosecution pursuant to s.587(3)(a) of the Act.
On 16 June 2022, I set directions for the filing of materials in relation to the costs application. Both KFC and Jordan Saunders filed written submissions. I have decided to deal with the costs application on the papers.
Statutory Framework
Section 400A of the Act provides as follows:
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.
Submissions
KFC submit that costs should be ordered because Jordan Saunders caused costs to be incurred in circumstances where:
1.They failed to attend the conciliation conference on 16 May 2022 or contact the Commission to inform them of their inability to attend prior to the conciliation taking place.
2.They ignored the Commission’s directions and correspondence.
3.The unfair dismissal application was vindictive and vexatious.
An itemised schedule of costs sought by KFC is annexed to this decision as ‘Annexure 1’.
Consideration
I am not satisfied that Jordan Saunders caused KFC to incur the costs in question because of an unreasonable act or omission on their part in connection with the conduct or continuation of the matter. It is not in contention that Jordan Saunders’ lack of compliance with Commission directions and correspondence satisfied me that the application should be dismissed for want of prosecution. However, this in and of itself does not suggest that KFC should be awarded costs. It was up to KFC to decide how they should prepare for the conciliation and whether they would engage legal advice at this stage of proceedings, ultimately such costs are not resulting from Jordan Saunders action or in-action.
Turning to KFC’s submission that Jordan Saunders’ application was vindictive and vexatious. While the merits of this case have not been fully ventilated, from the material I have reviewed I am not satisfied that Jordan Saunders’ predominant motive or purpose was to harass or embarrass KFC or to gain a collateral advantage.[1] It seems reasonable for Jordan Saunders to bring an application in circumstances where, at face value, they were dismissed from their employment after an incident took place at work. The threshold for an application to be deemed vexatious is high and KFC have not provided sufficient evidence to substantiate this claim.
Finally, I note that KFC has referred to Paul Hill v L E Stewart Investment Pty Ltd,[2] a previous case of the Commission where Vice President Hatcher awarded costs to a party in circumstances where the applicant failed to attend or provide notice of non-attendance for a hearing. However, this case can be distinguished from KFC’s application for two reasons: first, this was an anti-bullying matter where the applicant had already been dismissed and the matter was found to have no reasonable prospects of success; and secondly, the Vice President considered it was appropriate to award costs in the nature of witness fees for the Respondent’s attendance, as the litigants also qualified as witnesses and were therefore entitled to ordinary witness fees. Relevantly, the Vice President made the following observation:
“The question remains as to what costs can be ordered. The word “costs” as used in s.611 and elsewhere in the Act is not defined. “Costs” is usually interpreted to mean fees for professional legal services and other permissible out-of-pocket expenses actually incurred in the conduct of litigation. It does not include the time spent by a litigant in person in preparing for or conducting his or her case.[3] The respondents were self-represented; they cannot therefore be compensated for the time spent preparing for or attending the hearing as parties.”[4]
It is necessary to point out that in the present matter no such witness statements were prepared, nor was KFC directed by the Commission to prepare anything for the conciliation conference. Annexure 1 shows that the costs sought by KFC are for preparation of the Form F3, case review as well as preparation and attendance at the conciliation conference. Therefore, considering the nature of the costs sought, I find that there is no basis for me to award costs under s.400A.
Conclusion
The application for costs under s.400A is dismissed.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Applicant, 20 June 2022.
Respondent, 29 June 2022.
Annexure 1 – Itemised schedule of costs
| Item No. | Date | Costs Description of Work Done | Amount |
| 1. | 6th April 2022 | Case review and preparation of Form F3. Serve documents on applicant and forward copy to FWC. (Invoiced 19/4/22, 6 hours work) | 900.00 |
| 2. | 16th April 2022 | Prepare for and attendance at Conciliation Conference, abandoned due to the non-attendance of the applicant. (Includes travel time) (Invoiced 20/5/22, 2 hours work) | 300.00 |
| Costs and Disbursements | Amount Claimed | Amount Taxed and Allowed |
| Total Costs | $1,200.00 | |
| Total Disbursements | ||
| Total Costs and Disbursements | $1,200.00 |
[1] Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2021] FWCFB 4970.
[2] [2014] FWC 5588.
[3] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 409 per Mason CJ and Brennan, Deane, Dawson and McHugh JJ.
[4] Paul Hill v L E Stewart Investment Pty Ltd[2014] FWC 5588, [11].
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