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Keep v Performance Automobiles Pty Ltd

Keep v Performance Automobiles Pty Ltd

Case [2015] FWCFB 1956 24 March 2015

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[2015] FWCFB 1956

The attached document replaces the document previously issued with the above code on 24 March 2015.

Amending typographical errors in the references and correcting the date of a previous Full Bench decision in this matter at paragraph [2].

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 25 March 2015

[2015] FWCFB 1956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Neil Keep
v
Performance Automobiles Pty Ltd
(C2014/4246)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT WELLS
COMMISSIONER LEE

MELBOURNE, 24 MARCH 2015

Application for costs - ss. 375B and 611 Fair Work Act 2009 (Cth) - meaning of ‘without reasonable cause’ and ‘no reasonable prospect of success’ - application dismissed.

[1] Mr Keep was dismissed from his employment with Performance Automobiles Pty Ltd (Performance Automobiles, the respondent) on 4 April 2014 and subsequently made an application under s.365 of the Fair Work Act 2009 (Cth) (FW Act) alleging that Performance Automobiles had contravened s.340 of the FW Act by taking ‘adverse action’ against him because he exercised a ‘workplace right’ (the Application). A conference did not resolve the dispute and the parties agreed to the Fair Work Commission (FWC) determining the dispute by consent arbitration, pursuant to s.369 of the FW Act.

[2] The FWC, as presently constituted, heard the dispute and in a decision dated 15 December 2014 1 (the Decision) we decided that the respondent had discharged the onus, under s.361(1) of establishing that the reasons for the decisions which constituted the ‘adverse action’ were not for a prohibited reason under the FW Act. On that basis Mr Keep’s application was dismissed.

[3] The respondent now seeks orders pursuant to ss.375B and 611 of the FW Act that the applicant pay the respondent’s costs of and incidental to the consent arbitration proceedings on the basis that the applicant should not have:

(i) commenced the Application based on the unchallenged facts known to the applicant prior to making a claim; or

(ii) continued the Application after receipt of the respondent’s submissions, witness statements and documentary evidence which was unchallenged by the applicant.

[4] In the alternative, the respondent contends that the applicant unreasonably continued the Application, which caused the respondent to incur costs. It is submitted that the applicant should have discontinued the Application as he did not have any basis in fact to dispute or challenge the respondent’s reasons or evidence. In particular, the following stages presented an opportunity for the applicant to re-assess the Application and discontinue:

(i) after the applicant had the benefit of the information in the respondent’s Form F8A Response;

(a) had the benefit of a frank discussion about the Application during the conciliation; and

(b) was subsequently offered an amount of $3,500.00 to settle the Application (i.e. after the conciliation but before the filing of material for the arbitration) which was rejected on 19 June 2014 by the applicant; or alternatively

(ii) after the filing of outline of submissions and witness…

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 Keep v Performance Automobiles Pty Ltd

Details

AGLC: Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956
Case: [2015] FWCFB 1956
Decision Date: 24 MARCH 2015

CaseChat Overview and Summary

The applicant, Keep, sought an order for costs against the respondent, Performance Automobiles Pty Ltd, under sections 375B and 611 of the Fair Work Act 2009 (Cth). The matter arose from a workplace dispute involving the applicant's employment termination. The court was tasked with determining whether the application for costs was justified under the statutory provisions, specifically focusing on the interpretation of the phrases ‘without reasonable cause’ and ‘no reasonable prospect of success’.

The primary issue before the court was the interpretation of the statutory language in the context of the application for costs. The court needed to decide whether the applicant had established that the respondent’s actions were taken without reasonable cause and whether the respondent had no reasonable prospect of success in defending the application. The court also considered whether the respondent's actions could be seen as vexatious or oppressive.

The court concluded that the respondent’s actions did not meet the criteria for being taken without reasonable cause or lacking a reasonable prospect of success. The court held that the respondent had acted within the bounds of reasonable conduct, and therefore, the application for costs was not warranted. The court further found that the respondent's conduct, while perhaps contentious, did not amount to being vexatious or oppressive. The application for costs was dismissed based on these findings.

The court did not make any further orders beyond dismissing the application for costs. The reasoning provided underscored the importance of the respondent’s right to defend proceedings and the stringent criteria required to justify an order for costs under the Fair Work Act.

Orders