Joshua Harmer v Brandt Horrocks
[2024] FWC 2229
•20 AUGUST 2024
| [2024] FWC 2229 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Harmer
v
Brandt Horrocks
(U2024/4498)
| COMMISSIONER CRAWFORD | SYDNEY, 20 AUGUST 2024 |
Unfair dismissal – application discontinued on the day before determinative conference/hearing – costs application by employer – application dismissed.
BACKGROUND
On 19 April 2024, Joshua Harmer filed a Form F2 unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) regarding his dismissal by Brandt Horrocks. Mr Horrocks operates a plastering business in Wagga Wagga as a sole trader.
On 7 May 2024, Mr Horrocks filed a Form F3 employer response. Mr Horrocks did not have a representative at this time.
On 27 May 2024, a conciliation conference was held before a Commission staff conciliator. No resolution was reached.
On 12 June 2024, I conducted a Mention/Directions hearing. Mr Harmer and Mr Horrocks represented themselves. Directions were subsequently issued for the filing of material regarding the merits of Mr Harmer’s application and a determinative conference/hearing was listed for 24 July 2024.
Mr Harmer did not file any evidence or submissions in support his application by the due date of 28 June 2024.
On 8 July 2024, a Form F53 was filed providing notice that Friedlieb Fox Mcleod Solicitors was commencing to act for Mr Horrocks. Submissions were also provided in support of Mr Horrocks’ request for permission to be represented.
On 12 July 2024, Mr Horrocks filed material in opposition to Mr Harmer’s unfair dismissal application in accordance with my directions. This comprised two statutory declarations and an outline of submissions.
Later in the day on 12 July 2024, the material filed by Mr Horrocks was forwarded to Mr Harmer by the Commission. The covering email identified that Mr Harmer had not filed any material in support of his application and highlighted Mr Harmer's due date for material in reply of 19 July 2024. Mr Harmer was also asked to confirm whether he wanted to continue with the application by 5pm on 16 July 2024.
Mr Harmer did not respond to the Commission’s email and did not file any material in reply to that filed by Mr Horrocks by the due date of 19 July 2024.
At 9:31am on 23 July 2024, the parties were notified I had decided to grant permission for Mr Horrocks to be represented at the determinative conference/hearing on 24 July 2024 on the basis I was satisfied granting permission would enable the matter to be dealt with more efficiently.
At 9:56am on 23 July 2024, Mr Harmer sent an email to the Commission indicating he wanted to withdraw his unfair dismissal application.
The parties were subsequently notified that the listing for the determinative conference/hearing would be vacated, and the file closed based on Mr Harmer’s discontinuance.
On 30 July 2024, an application for costs was filed on behalf of Mr Horrocks. The application was made pursuant to s.400A of the FW Act on the ground that costs were incurred by Mr Horrocks because of an unreasonable act or omission by Mr Harmer in connection with the conduct of the matter.
Mr Horrocks’ application identified the following unreasonable acts and omissions from Mr Harmer:
a.Failing to comply with directions to file material.
b.Failing to reply to the Commission’s request on 12 July 2024 for confirmation of whether Mr Harmer wished to continue with his application.
c.Withdrawing the application on 23 July 2024, less than 24 hours before the scheduled determinative conference/hearing.
Mr Horrocks provided invoices for his legal fees to establish the costs he incurred.
On 31 July 2024, an email was sent from my chambers to Mr Harmer where he was provided with an opportunity to respond to the costs application by 9 August 2024. Mr Harmer did not file a submission by this due date. A further email was sent to Mr Harmer which provided Mr Harmer with a final opportunity to file a submission in response to the costs application by 14 August 2024. Mr Harmer did not respond to this email. However, at 5:40pm on 16 August 2024, Mr Harmer provided an email which set out his opposition to the making of a costs order for the following reasons:
a.Mr Harmer thought the emails coming from my chambers were from a law firm and did not realise they were from the Commission. Mr Harmer has been assisted by his mother but had not received legal advice until 16 August 2024.
b.Mr Harmer thought his Form F2 application, and an attached copy of a text message, was sufficient to prove he was unfairly dismissed, and he did not intend to file any further material.
c.Mr Harmer found work at the beginning of July 2024 and decided it was not worth going ahead with the unfair dismissal application.
On 19 August 2024, Mr Horrocks’ lawyer wrote to my chambers to indicate Mr Horrocks opposes the late submission filed by Mr Harmer on 16 August 2024 being considered by the Commission when determining the costs application. The correspondence identified that Mr Harmer was provided with an opportunity to file submissions in response to the cost application, and then when Mr Harmer failed to respond by the due date, he was provided with a further extended period to file a submission. Mr Harmer did not file a submission in accordance with either deadline. The correspondence also raised doubts about Mr Harmer’s claim that he thought emails from the Commission were from a law firm given the email address and signature details clearly identified that the correspondence was from the Commission. The correspondence also pointed out that Mr Harmer has had ample opportunity to seek legal advice prior to 16 August 2024.
There is certainly merit to the concerns raised by Mr Horrocks. Even if Mr Harmer thought the Commission’s various emails were from a law firm, it is unclear why he would then decide to completely ignore them. Mr Harmer could have responded to seek confirmation regarding who was sending the email. Mr Harmer’s lack of responsiveness has been problematic throughout the course of his unfair dismissal application and now this costs application. However, I am reluctant to not consider a submission filed by a self-represented litigant when deciding whether to make a costs order for $6,072.00 against them. I will take the late submission into account when determining the costs application.
STATUTORY PROVISIONS
Section 400A of the FW Act states 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.”
A Full Bench in Gugiatti v SolarisCare Foundation Ltd[2016] FWCFB 2478 provided the following guidance as to the application of s.400A:
“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened. The Full Bench in Veal v Sundance Marine Pty. Ltd. As trustee for Sundance Unit Trust T/A Sundance Marine[2013] FWCFB 8960 held that “[t]he phrase "unreasonable act or omission" was a component of provisions of s 170CJ(3) of the Workplace Relations Act 1996 (the WR Act).” In dealing with an application for costs pursuant to s.400A of the Act, the Full Bench has followed previous decisions of the Full Bench of the Commission made in respect of s.170CJ(3) of the WR Act.”
CONSIDERATION
I do not consider Mr Harmer engaged in an unreasonable act or omission by failing to file material in accordance with the Commission’s directions in support of his unfair dismissal application. The directions provided due dates for Mr Harmer to file material he sought to rely upon in support of his application. That does not mean Mr Harmer necessarily had to file material. Mr Harmer was entitled to rely on his Form F2 application and the attached text message, as well as any supplementary evidence or submissions provided during the determinative conference/hearing, if that was how he wanted to conduct the case. I am not satisfied running a deficient or weak case constitutes an unreasonable act or omission for the purposes of s.400A(1) of the FW Act.
I accept Mr Harmer’s failure to respond to the Commission’s email on 12 July 2024 constitutes an unreasonable omission. Mr Harmer was specifically requested to confirm whether he wanted to discontinue the application ahead of the determinative conference/hearing date and he failed to reply. I do not consider Mr Harmer’s explanation that he thought the emails from my chambers were from a law firm to be a sufficient explanation for not responding. Mr Harmer has now indicated he found work in early July 2024 and that this was why he decided not to proceed with the application. Mr Harmer should have confirmed this decision with Mr Horrocks and the Commission in response to the email on 12 July 2024.
I do not consider Mr Harmer discontinuing his application on 23 July 2024 to be a further unreasonable act or omission. I consider the unreasonable omission was failing to provide earlier confirmation that he wished to discontinue the application in response to the Commission’s email on 12 July 2024.
As a result, the first precondition for the making of a costs order is satisfied. I find Mr Harmer’s failure to respond to the Commission’s email on 12 July 2024 regarding whether he wished to proceed with the application was an unreasonable omission.
In relation to the second precondition for the making of a costs order, I am required to determine whether Mr Harmer’s unreasonable omission caused Mr Horrocks to incur costs.
The first legal invoice provided by Mr Horrocks demonstrates he incurred costs for an initial consultation on 19 June 2024 and then for work associated with the preparation of the material he filed on 12 July 2024. Those costs were incurred prior to Mr Harmer’s unreasonable omission in failing to reply to the Commission’s email on 12 July 2024. Mr Harmer’s omission did not cause Mr Horrocks to incur these costs.
The second invoice provided by Mr Horrocks demonstrates he incurred costs of $220 (inclusive of GST) for the review and sending of emails on 22 and 23 July 2024. The remaining costs on this invoice arise from the preparation of the costs application which occurred after Mr Harmer discontinued his application. I would not make an order for Mr Harmer to pay $44 (inclusive of GST) for the cost of an email following up on whether I had decided to grant permission for Mr Horrocks to be represented. That cost arose from my failure to notify the parties of my decision regarding permission for representation by 22 July 2024 in accordance with my directions. These costs were not caused by Mr Harmer’s unreasonable omission. I also do not consider the costs arising from the preparation of a costs order application against Mr Harmer can be said to have arisen from Mr Harmer’s unreasonable omission. Mr Horrocks made a strategic decision to make a costs application after the unfair dismissal application had been discontinued and was receiving legal advice at the time. Mr Horrocks would presumably have been advised that the parties generally bear their own costs in matters before the Commission. I do not consider Mr Harmer’s unreasonable omission “caused” Mr Horrocks to incur the costs of preparing a costs application. With these amounts excluded from the second invoice, an amount of $176 (inclusive of GST) remains.
Given the two preconditions are satisfied, a discretionary power to make a costs order against Mr Harmer for $176 (inclusive of GST) is enlivened.
In terms of whether I should exercise the discretion to make a costs order, I consider it is relevant that Mr Harmer’s decision to discontinue his unfair dismissal application at 9:56am on 23 July 2024 meant Mr Horrocks did not incur legal costs for the determinative conference/hearing scheduled for 24 July 2024. Those costs were likely to be significant. I consider this factor weighs against exercising the discretion to make a costs order.
Mr Harmer’s submission indicates he had found alternative full-time employment in early July 2024, and this meant he did not wish to proceed with the unfair dismissal application against Mr Horrocks. I do not consider an applicant should be discouraged from discontinuing an unfair dismissal application if they find another job ahead of a determinative conference/hearing via the making of a costs order. I consider this factor weighs against exercising the discretion to make a costs order, although only marginally given Mr Harmer should have advised Mr Horrocks and the Commission of his decision prior to 23 July 2024.
On the other hand, Mr Harmer’s failure to be responsive in terms of his application has clearly caused prejudice to Mr Horrocks. It is not acceptable for an applicant to commence a proceeding, not explain why they have not filed material and fail to keep the employer and the Commission updated about their intentions. This is a factor that weighs in favour of making a costs order.
Having considered the various factors above, I decline to exercise my discretion to make a costs order against Mr Harmer.
CONCLUSION
The application for costs is dismissed.
COMMISSIONER
Determined on the papers.
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