Keith Le Mon v Silverstone Recruitment Pty Ltd
[2020] FWC 184
•23 JANUARY 2020
| [2020] FWC 184 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Keith Le Mon
v
Silverstone Recruitment Pty Ltd
(C2019/5509)
DEPUTY PRESIDENT CROSS | SYDNEY, 23 JANUARY 2020 |
Application to deal with a general protections dispute involving dismissal - Application for costs following discontinuance of application.
Background
[1] On 4 September 2019, an Application (the s.365 Application) was made by Mr Keith Le Mon (the Applicant) under s.365 of the Fair Work Act 2009 Cth (the Act). In the s.365 Application, the Applicant indicated that the s.365 Application had been filed one day outside the 21 day limitation period for filing such applications.
[2] On 8 September 2019, Silverstone Recruitment Pty Ltd (the Respondent) advised the Commission as presently constituted (the Commission), and the Applicant, that it did not consent to the s.365 Application being dealt with by conciliation, and sought that the question of an extension of time be determined first; that is, whether there were exceptional circumstances justifying an extension of time (one day) within which the s.365 Application could be allowed to be filed.
[3] On 10 September 2019, the Commission directed the Respondent to complete, file and serve on the Applicant its Form F8A Response to the s.365 Application. That document was filed on 16 September 2019.
[4] On 19 September a notice of listing was emailed to the parties requiring attendance by telephone at a directions hearing on 3 October 2019 at 2pm (AEST). The Respondent attended but the Applicant did not. The hearing was adjourned for one hour, in case there had been a misunderstanding due to the time difference between Perth and Sydney, however at that later time the Applicant again did not answer his telephone.
[5] On 1 October 2019 my Chambers issued proposed directions dated 1 October 2019 (marked with a “draft” watermark”) (the Directions) to parties by email. The email said:
“Dear Parties,
I refer to the above matter.
Please find attached proposed Directions to be discussed at the Directions Hearing tomorrow (2 [sic] October 2019).”
[6] The Directions at direction 1 required the Applicant to file material as follows:
“1. The Applicant (Keith Phillip Le Mon) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 22 October 2019.”
[7] On 23 October 2019 my Chambers sent an email to parties as follows:
“… I can confirm that no materials have been filed to date by the Applicant in accordance with the Directions. As such, the Applicant is directed to file his materials in support of his ‘out of time’ application by 4.00pm tomorrow (24 October 2019).
If you no longer wish to pursue your claim against your former employer, please kindly advise Chambers…”
[8] The Applicant did not file any materials by 4pm on 24 October 2019.
[9] On 28 October 2019 the Applicant was, in relation to the Directions, contacted by my Chambers for a third time. An email was sent at 8.09am as follows:
“Dear Mr Le Mon,
I refer to the below correspondence.
Chambers can confirm that no material has been filed by you to date pursuant to the Directions of 4 October and 23 October 2019.
As such, if you still intend to do so, the Deputy President has directed that you file your materials by 4.00pm today (28 October 2019) with Chambers. A failure to do so will result in your application being dismissed without further recourse to you.”
[10] The Applicant replied on 28 October 2019 at 12.18pm:
“I am able to proceed After a call I received
Unknown caller male
Stating if I Proceed I will not work on a Rio Tinto site
Or in the Pilbara
Have emailed the other party
Regards Keith Le Mon”
[11] It would seem, particularly in light of subsequent correspondence, that the Applicant intended to write “unable” instead of “able”.
[12] My Chambers sent a further short email on 28 October 2019:
“Dear Mr Le Mon,
I refer to the below correspondence.
As you have now confirmed that you still wish to pursue your application, please ensure that you file your materials with Chambers by 4.00pm today.”
[13] The Applicant did not file or serve any material on that day or any other day following.
[14] On 7 November 2019 the Respondent sought by email that the s.365 Application be struck out pursuant to s.587 of the Act for want of prosecution.
[15] On 15 November 2019, the s.365 Application was dismissed. 1
The Costs Application
[16] On 29 November 2019, the Respondent filed a Form F6 - application for costs relying on sections 375B and 611 of the Act (the Costs Application) (though in its Submission in Support of its Application for Costs also dated 29 November 2019 (the Costs Submission), the Respondent relies solely on s.611 of the Act). Those provisions provide relevantly:
“s. 375B - Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) 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 dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC’s power to order costs under section 611.”
And:
“s.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).”
[17] I note at this point that on 2 December 2019 the Applicant filed a Form F50 Notice of Discontinuance with the Commission. The covering email from the Applicant said, as follows:
“As I stated after a private phone call I reveiced with no ID from a male
Stating that if I processed against Silverstone will never work on a Rio Tinto site again
I then did not carry forward in fear as Silverstone /Unon is very in depth with Rio Tinto
I stated each party to bear own cost and the matter is closed
their was adverse action taken towards me as employee for raising a work place issue
then a phone call
Given me no choice but to not carry on
This will be the last email
Regarding this matter.” (original text retained)
[18] A telephone directions hearing was conducted on 16 December 2019 to determine the manner in which the Costs Application could be determined. At that directions hearing there was no attendance by the Applicant. Further, the Respondent indicated that it did not want to put to the Commission any more than that contained in the Costs Submission. The Commission indicated it could determine the Costs Application without hearing from the Applicant.
[19] I note the Costs Application claimed a total of $3,190.00, of which $580.00 (18.18% of the total) related to “Reading application, obtaining instructions from client and drafting Response”, which I assume to be the Form F3 required to be filed within 7 days of receipt of the s.365 Application, and $1,450.00 (45.45% of the total) related to “Commencing application for costs” and “Finalising application for costs”.
The Costs Submission
[20] The Costs Submission annexed three bundles of emails titled Section 1, Section 2 and Section 3. The Costs Submission alleged that the s.365 Application was made vexatiously or without reasonable cause.
[21] As to vexation, the Respondent submitted the Applicant filed the s.365 Application with the intention to annoy the Respondent and embarrass it. The Costs Submission noted that following the ending of the Applicant’s employment, the Applicant engaged in a barrage of emails and text messages to the Respondent. Those emails were identified to be in Section 1, and were said to “contain a hostile tone and, in many cases, contain language that is attempting to bait or intimidate the Respondent”.
[22] The Respondent noted that on numerous occasions in the emails and messages in Section 1, the Applicant refers to a previous application alleging breaches of his general protections taken against a former employer, where he allegedly won without the need of legal assistance and obtained a sum of money. The Applicant also communicated with other employees of the Respondent and its client, Uon, boasting that he was taking the Respondent to court and he was going to “teach them a lesson”. An example was said to be an undated text message the Applicant sent to an employee of the Respondent, Mr Andrew Pain that was said to be attached to the Costs Submissions (but was not), which stated:
“Hey mate
When you’re having a beer with Todd
Tonight ask him how he feels with costing Uon/ silver stone lots of money for a lawyer stephen Farrell As the matter of him abusing me an silver stone end my employment is now being heard by FWC commissioner on 3rd October 2019 The matter will end up in the federal court He will have to attend to give his side of the story of abusing Also ask him about Peggy Peggy is a sight with in Rio Tinto that you call and register complaints on Rio Tinto work places I have registered with them Uon going to love Todd Going to cost Uon He got away with abusing people now it going to a Lesson learnt in work place law By the way I have been to the Federal court Western Australia and won Under adverse action act fair work Cheers Keith” (original text retained)
[23] Following the Respondent’s engagement of representation to assist it in defending the s.365 Application, the Respondent submits the Applicant then sent inappropriate emails to that representative (contained in Section 2) where he:
• Refers to the Representative as a jerk and addresses him by that title;
• Boasts about having previously won with the previous application he had made; and
• Threatens the Respondent’s Representative.
[24] The Respondent submitted that the Applicant’s behaviour and inappropriate communications to the Respondent, its employees, clients and representative, while not attending the directions conference nor submitting any of the material he was directed to submit, indicated that the Applicant was merely attempting to annoy and/or embarrass the Respondent.
[25] As to the question of how the s.365 Application or conduct was “without reasonable cause”, the Respondent noted the circumstances of the matter were that following the Respondent’s client, Uon, advising the Respondent that it did not want the Applicant working on its site, the Respondent made every effort to secure the Applicant another position with another of its clients. The Respondent submitted that the emails attached in Section 3 clearly indicated the Respondent emailed the Applicant asking him to contact them or attend their offices so they could find a suitable placement for him. The Applicant was further advised on numerous occasions that his employment with the Respondent had not ended. The Respondent actually found a short term position for the Applicant, emailed him to advise of this, and asked the Applicant to contact them to discuss further. The Applicant did not contact the Respondent at all to discuss the placement.
[26] The Respondent submitted that it was not tenable for the Applicant to assert he was dismissed, as he knew the Respondent had not terminated him, he knew the Respondent was attempting to find an alternative placement for him, and he knew that it had been successful.
[27] The Respondent expressly acknowledged that in relation to s.611(2)(a), the Commission when determining whether the application was made vexatiously or without reasonable cause, “must only consider the [Applicant’s] state of mind at the point the application was made”, however it submitted that “evidence of his behaviour identified above supports one way or the other the claim for costs should be considered.” (emphasis added)
[28] The Respondent also submitted that the Applicant’s failure to attend the directions hearings, respond to the messages left on his phone by the Commission’s staff, or file materials despite being given numerous opportunities, all indicated that it was reasonably apparent to the Applicant that the s.365 Application had no prospects of success.
[29] Finally, the Respondent submitted thatthe Applicant should pay its costs on an indemnity basis.
Consideration
[30] The Costs Application and the Costs Submission are based upon selective quotations of the correspondence between the parties. The Commission cannot know whether it has before it the full correspondence between the parties, however Sections 1, 2 and 3 also contain, quite relevantly, the following (original text of each message retained):
(a) At 11.01am on 16 August 2019, in response to an email asserting that he was a casual employee, the Applicant wrote the following to Mr Grosse of the Respondent:
“You must read or call fair work ombudsman an ask about causal employment
A causal has no fix hours or days of work
I had fixed hours and days and flights
So I am entitled to back pay of holidays and sick leave
Maybe you need to seek legal advice
Or do you want me to email you the fair work act”
(b) At 7.53am on 21 August 2019, in response to an email from Mr Vanderwoude stating that he had not been terminated by the Respondent, and that the Respondent was “more than happy to seek another assignment for” the Applicant, the Applicant wrote the following to Mr Vanderwoude:
“You had an assignment for me
But choose to terminate my employment to Uon as I made a work place
complaint against Todd Fraser to Warrick Lesson of Uon He emailed
silver stone on Sunday 11th of August 2019 I was terminated on Tuesday
13th August 2019 Regards Keith”
(c) At 11.07am on 21 August 2019, the Applicant wrote the following to Mr Vanderwoude of the Respondent;
“You need to seek legal advice as this matter is now with Fair work If you want to know about general protection An adverse action I am happy to inform you I have been before to federal court and won I have spoken with fair work Clear case of adverse action I was told by Warrick Lesson 14 new starts for 20th of August 2019 I have work till November 2019 On the wet plant He stated we are tender for more work You need to email me a separation certificate Keith
(d) At 11.52am on 21 August 2019, the Respondent sent a Separation Certificate to the Applicant. The email from the Respondent that annexed that certificate was in the following terms:
“Good morning Keith,
As requested, a separation certificate is attached.
Please give me a call when you are free, to discuss upcoming assignments and what you are ideally looking for in your next assignment on [telephone number].
Regards
Chris Vanderwoude”
(e) At 12.13pm on 22 August 2019, the Applicant wrote the following to Mr Vanderwoude of the Respondent:
“You seem to not understand
You and silverstone and Uon Todd Fraser terminated my employment at MesaA
Because I raised a work place issue of abuse by a Sea breeze employee Todd Fraser
Who has a wife and a watercart on site
No action was taken towards him
But adverse action was taken by you and silverstone and Uon
I was happy in my position as a loader operator
No damage to plant
Highest out put with loader
And was removed from site for reporting a work place issue
It will clearly come out in the fair work hearing a breach of the general protection act
As you said get legal advice
So offering me work after you have issued a separation certificate is not going to work
And I believe you have no work
But 14 people were placed on MesaA on 19th of August 2019
A former employer tried to do exactly what you are doing
Lost too me at the Fair Work Commission
I have rights which have been breached by you silvertone and Uon and Todd Fraser
Regards Keith”
(f) At 5.59pm on 17 September 2019, after receiving the Respondent’s Form F8A, the Applicant wrote the following the Respondent’s representative, Mr Farrell;
“I note that the respondent
Has not attached copies of emails from
Warrick Lesson in regards to the abuse I received fromTodd Fasser
Which Warrick Lesson sent to silverstone recruitment
I also note that they silverstone recruitment state I was causal employee
The over look the rights of and employee being full time part time casual
No employee shall be removed from their position for raising a work place issue
Or they duties altered be that they are full time part time casual
Being casual seems to give Employment companies such as silverstone reuritment the power to terminate your employment over issues raised or you question pay rates
I raised questions over pay rates
Raised and issue over being abused
They silverstone recruitment clearly use the casual right of employent to dismiss employees who speak up
I request emails from Warrick Lesson of Uon in regards to the abuse I received and my stand down time on that day
To silverstone
Regards Keith Le Mon”
(g) At 9.47pm on 23 October 2019, the Applicant wrote the following to the Respondent’s representative, Mr Farrell;
“Your aware of the phone call I received prior the telephone confrence
no caller ID
person male stated if I processed I will never work on a Rio Tinto site let alone any where else in the Pilbara
That all good I will forward this on to Rio Tinto
Regards Keith”
(h) At 5.52pm on 28 October 2019, the Applicant wrote the following to the Respondent’s representative, Mr Farrell:
“I am not saying it was you Stephen Feral or Silverstone recruitment
I state that I received a no ID phone call from a male who informed me if I carry on with the fair work against silverstone
That I would not work on a Rio Tinto site again or in the Pilbara and hung up
very brief no name
no ID
I have but no choose to with draw
Regards Keith Le Mon”
[31] The above emails (the Applicant’s Emails), particularly those at paragraphs (a) to (f) inclusive, provide a detailed and contemporaneous record of the position of the Applicant at, or proximate to, the filing of the s.365 Application on 4 September 2019. That is the relevant time to consider the application of the provisions of s.611 of the Act 2.
[32] The Applicant’s Emails disclose that the Applicant was outlining, repeatedly, what can only be described as a quite ordinary general protections application, that contained additional, and quite topical, allegations surrounding entitlements of long term casuals to annual leave and sick leave 3. The Applicant repeatedly responded to the Respondent’s assertions that were contrary to the case he was advancing, providing consistent responses asserting his rights.
[33] While the s.365 Application was ultimately dismissed 4, it is apparent from the Applicant’s Emails that the Applicant asserted he was not pursuing the s.365 Application because an anonymous telephone caller advised that if he proceeded with the s.365 Application he would never work on a Rio Tinto site or in the Pilbara. It is simply impossible to test that assertion, but it was contemporaneously given by the Applicant to explain at least part of his inaction.
(a) Vexatiously
[34] A person will make, or respond to, an application vexatiously if the person’s predominant purpose or motive is to harass or embarrass another person, or to gain a collateral advantage 5. The issue which must be examined in determining whether a person acted vexatiously in making, or responding to, an application, is the person’s purpose or motive. It is not sufficient to point to a weakness in a person’s application or response and to conclude from this weakness that the application or response was made vexatiously. Evidence must be led or elicited which is directed to the person’s purpose and from which it can be concluded that a person was motivated to make, or respond to, an application by an intention or desire to harass or embarrass another person, or to gain some collateral advantage6.
[35] There is absolutely no basis upon which it can be put that the Applicant made the s.365 Application vexatiously. The Respondent relies on bundles of emails, which contain the Applicant’s Emails and other emails, however those emails disclose the Applicant asserting a prima facie sensible general protections application.
[36] While the Applicant, being a self-represented litigant, may have used language that was disrespectful or impertinent in his correspondence, that language does not sustain an allegation of vexation.
[37] Similarly, “boasting” about an alleged previous victory in a general protections matter or noting that the Respondent will incur legal costs is no more than posturing, and insofar as I can take any account of the undated text message the Respondent appears to rely on in paragraph [22] above, the undated text message to Mr Andrew Pain also refers to the substance of the case the Applicant advanced in the s.365 Application.
(b) Without Reasonable Cause
[38] In matters where the merits of an application are not determined, and particularly where there is a discontinuance or dismissal of an application prior to such determination of the merits, the test for whether an application was made “without reasonable cause” is that the application:
• was ‘so obviously untenable that is cannot possibly succeed’
• was ‘manifestly groundless’
• was ‘so manifestly faulty that it does not admit of argument’
• ‘disclosed a case which the Court is satisfied cannot succeed’, or
• ‘under no possibility could there be a good cause of action’ 7.
[39] The Costs Submissions are completely misdirected, and are of no assistance, as they rely on the Respondent’s case put at its highest, or quite arguably beyond its highest expression, to the complete ignorance of the case advanced, repeatedly, by the Applicant. On any balanced consideration of the matter, there is no basis upon which it could be submitted the s.365 Application was made without reasonable cause. The s.365 Application, and the Applicant’s Emails, disclosed a case that may very well have succeeded had it progressed further.
[40] While it is correct that the Respondent advised the Applicant that it had not terminated his employment, and had found a “short term” position for him, the Applicant clearly replied, in a manner consistent with the case he was advancing, asserting termination and a valid action relating to that termination 8. The Respondent, however, submitted that:
“24. It was not tenable for the [Applicant] to assert he was dismissed, he knew that the [Respondent] had not terminated him, he knew that the [Respondent] was attempting to find an alternative placement for him and he knew that it had been successful.
25. The [Respondent] submits that having this knowledge when the [Applicant] made his application, meant the he knew or ought to have known that he had not been dismissed.”
[41] The Applicant had no such “knowledge” or state of mind. He was vigorously, continually, and with some prima facie basis, asserting to the contrary.
[42] There is no substance to the allegation that the s.365 Application was commenced without reasonable cause.
(c) Section 375B – Conduct
[43] The only part of the Costs Application with any possible substance related to the Applicant’s failures to attend the directions hearing, correspond with the Commission, or file his materials by the due dates. However, as noted above, while the Costs Application relied upon s. 611 and s.375B of the Act, the Costs Submission relied only upon s.611.
[44] Further, in the Costs Submission, the Applicant’s failures to attend the directions hearing, correspond with the Commission, or file his materials by the due dates were submitted to:
“… all indicate that it was reasonably apparent to the [Applicant] that his application had no prospects of success”.
[45] As noted above, the relevant time for assessing prospects of success is at the time proceedings are commenced. The failures relied upon by the Respondent all occurred, quite obviously, at later times, and were completely irrelevant to the assessment of prospects.
[46] While the Applicant clearly failed in a number of procedural respects, those failures remain unexplained, and I would not be inclined to exercise my discretion to award costs, were a case to be successfully advanced pursuant to s.375B, without a clear basis of unacceptable behaviour by the Applicant being established.
Conclusion and Observation
[47] I am not satisfied that the s.365 Application was made vexatiously or without reasonable cause. The Costs Application is dismissed.
[48] As noted at paragraph [18] above, I indicated that I could determine the Costs Application without hearing from the Applicant. That course ensured the Applicant would not incur legal costs in defending the Costs Application. Had, however, the Applicant incurred such legal costs and sought an order that the Respondent pay some or all of those costs, due to the unacceptability of the Costs Submissions, I would have seriously considered such an application.
[49] In the circumstance where costs relating to the commencing and finalising of the Costs Application constitute almost half of the costs sought in the whole of the proceeding, there would appear to be a serious question about whether the Costs Application was commenced vexatiously or without reasonable cause.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR715896>
1 Keith Le Mon v Silverstone Recruitment[2019] FWC 7413.
2 Qantas Airways Limited v Carter[2013] FWCFB 1811, at [20].
3 WorkPac Pty Ltd v Skene [2018] FCAFC 131.
4 Ibid.
5 Qantas Airways Limited v Carter[2103] FWCFB 1811.
6 Rebecca Jones v Brite Services [2013] FWC 4280, at [6].
7 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, 129.
8 See, for example, the email at [30](g).
0
5
0