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…

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.

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Details

Case: [2020] FWC 184
Decision Date: 23 JANUARY 2020

CaseChat Overview and Summary

In the Federal Court of Australia, Keith Le Mon filed a general protections dispute against Silverstone Recruitment Pty Ltd concerning his dismissal. The applicant, Le Mon, sought relief for unfair dismissal and other associated grievances. Silverstone Recruitment Pty Ltd, the respondent, contested the allegations and argued that the dismissal was lawful and justified under the terms of the employment contract and relevant employment laws. The case involved an application for costs following the discontinuance of the original application by Le Mon.

The primary legal issues before the court were whether the discontinuance of the initial application for unfair dismissal warranted an order for costs against Le Mon, and if so, the quantum of those costs. The court had to consider the principles governing costs in discontinuance applications and whether exceptional circumstances existed that might justify an order for costs. The respondent argued that the application was frivolous or vexatious, and thus, costs should be awarded. Le Mon, on the other hand, contended that the discontinuance was not without merit and did not warrant an order for costs.

The court carefully considered the circumstances leading to the discontinuance and the nature of the application itself. It was noted that the application for unfair dismissal was withdrawn without any substantive hearing or determination of the merits. The court found that the discontinuance did not arise from any new information or change in circumstances but was a tactical decision by Le Mon. Given the nature of the discontinuance, the court held that it was appropriate to make an order for costs against Le Mon. The court assessed the respondent's costs and determined that a portion of those costs should be awarded, reflecting the need to balance fairness with the deterrent effect of awarding costs in such circumstances.

The final orders of the court included a direction for Le Mon to pay a specified amount of costs to Silverstone Recruitment Pty Ltd, reflecting the court's assessment of the circumstances of the discontinuance and the principles governing costs in such cases. The amount was not excessive, considering the tactical nature of the discontinuance without substantive merit.

Orders