Liane Trainor v Wild West Pty Ltd - [2024] FWC 1050

[2024] FWC 1050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Liane Trainor
v

Wild West Pty Ltd

(U2023/11194)

DEPUTY PRESIDENT O'KEEFFE

PERTH, 22 APRIL 2024

Application for costs under s.401 – application dismissed

This decision concerns an application initially lodged on 19 March 2024 by Wild West Pty Ltd (the Costs Applicant) for costs orders against the representative of the Applicant in the substantive matter, being Petherick Cottrell Pty Ltd trading as Petherick Cottrell Lawyers (the Costs Respondent), pursuant to s 401 of the Fair Work Act (the Act). I note that the substantive matter was determined on 5 March 2024 and so the application was made within the fourteen day time limit imposed by the Act.

The substantive matter was an unfair dismissal application. In the substantive decision, being [[2024] FWC 567], I found that the Fair Work Commission (FWC) did not have jurisdiction to determine the matter because the Applicant Ms Trainor had resigned her employment of her own accord. The Costs Respondent had, on behalf of Ms Trainor, pursued an argument that certain comments made by one of the owners of the Costs Applicant amounted to the termination of Ms Trainor’s employment. However, I found that on balance of probability that those comments did not terminate the Applicant’s employment and, even if they had, such termination was effectively retracted within five minutes.

In the application for costs, the Costs Applicant submitted that the Costs Respondent had encouraged its client to continue with the unfair dismissal application, when it should have been reasonably apparent that there was no reasonable prospect of establishing that the Applicant had been dismissed. The Costs Applicant further submitted that there was a clear basis in the reasons for decision that it should have been apparent to the Applicant’s representative that the Applicant had no reasonable prospect of success in establishing that she has been dismissed. Furthermore, the Costs Applicant submitted that it was clear from the evidence that the Applicant’s case had no merit but the Applicant’s representative continued with the application to the significant cost and detriment of the Costs Applicant.

In further submissions, the Costs Applicant proposed that the evidence submitted in the matter clearly indicates that the Applicant did not accept the Cost Applicant’s offer to remain employed and chose to end her employment and was not dismissed. The Costs Applicant submitted that such evidence was of a kind that a legally qualified and experienced representative ought reasonably to have identified at the earliest time in accepting instructions and in analysing the circumstances, either as an obvious matter from the recording or from all the circumstances. As such, the Costs Respondent ought to have advised its client that it was at all times likely that her own decision to end her employment would be fatal to an unfair dismissal application.

The Costs Applicant also took issue with the conduct of negotiations by the Costs Respondent, and cited various items of…

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: [2024] FWC 1050
Decision Date: 22 APRIL 2024

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involves an application for costs by Wild West Pty Ltd against Petherick Cottrell Pty Ltd trading as Petherick Cottrell Lawyers, who represented Liane Trainor in an unfair dismissal claim. The substantive unfair dismissal matter was dismissed by Deputy President O'Keeffe on 5 March 2024, with the costs application being lodged within the required timeframe on 19 March 2024. The central issue in the costs application is whether Petherick Cottrell Lawyers engaged in unreasonable conduct that warranted an order for costs against them under section 401 of the Fair Work Act 2009.

The legal issues considered by the FWC included whether the representative's decision to pursue the unfair dismissal claim was unreasonable given the lack of reasonable prospects of success, and if there were any unreasonable acts or omissions in the conduct of the matter. Wild West Pty Ltd argued that the representative should have recognised the futility of the claim and advised Trainor accordingly. Petherick Cottrell Lawyers, on the other hand, contended that there was a genuine dispute over the circumstances of the employment termination and that their conduct was reasonable given the conflict in the evidence.

The Deputy President found that the case run by Petherick Cottrell Lawyers was not unreasonable at the outset, as the unusual circumstances of the employment termination did not render the claim hopeless. The representative's decision to reject a settlement offer and the delays caused by internal FWC issues were not sufficient grounds to find unreasonable conduct. The Deputy President concluded that Petherick Cottrell Lawyers did not act unreasonably and thus there were no grounds to award costs against them.

In light of the findings, the application for costs was dismissed. The Deputy President did not find any basis to order costs against Petherick Cottrell Lawyers, and therefore no order for costs will issue.

Orders