Linda Rigby v BMS Retail Group Pty Ltd T/A Champions IGA

[2016] FWC 6846

[2016] FWC 6846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Rigby
v
BMS Retail Group Pty Ltd T/A Champions IGA
(U2016/3521)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 27 OCTOBER 2016

Application for relief from unfair dismissal – costs application

[1] On 10 May 2016 I dismissed Ms.Linda Rigby’s application for an unfair dismissal remedy 1.

[2] On 24 May 2016 the employer, BMS Retail Group Pty Ltd, filed applications for costs orders against Ms.Rigby and her representatives under ss.400A, 611 and 401 of the Fair Work Act 2009 (‘the Act’). On 2 June 2016 a hearing was held in relation to the costs application. It was agreed that the matter would be adjourned because of an appeal foreshadowed by Ms.Rigby at the hearing but not before 2, and that if the costs application proceeded it would be determined on the basis of written submission3. The requirements of s.402 were met.

[3] On 28 July 2016 the appeal was dismissed 4.

[4] On 10 August 2016 the employer filed supplementary submissions. A Whole New Approach filed separate submissions on behalf of Ms.Rigby and itself as a respondent to a costs application, and Ms.Rigby filed a submission. The employer challenged the submission put by A Whole New Approach on behalf of Ms.Rigby. However, that firm appeared for Ms.Rigby in relation to the costs application and I have had regard to its submission.

[5] Mr.Pinchen appeared on behalf of Ms.Rigby during the hearing of her application 5. At the costs hearing he appeared on her behalf6. He then said that Ms.Rigby would be filing an appeal and that she would be self represented in that appeal7.

[6] I have taken account of all submissions and evidence.

Submissions

[7] A Whole New Approach submits that costs orders should not be made against itself or Ms.Rigby having regard to the fact that it relied on Ms.Rigby’s instructions at all times and this was reasonable, and other matters. It submitted that her application was not made vexatiously because she had no ulterior motive, and that it was made with reasonable cause even if unsuccessful. It submitted that she had a genuine case. Ms.Rigby submitted that Mr.Pinchen told her that she had a ‘very solid case’, she was not represented as she should have been because a witness was not subpoenaed, she has exhausted her savings and is not currently employed, and other matters.

Costs application against Ms.Rigby

[8] It is not enough to satisfy the requirement in s.611 that an application be made without reasonable cause or without reasonable prospects for success that Ms.Rigby’s case has been rejected: General Steel Industries Inc v. Commissioner for Railways 8. As a Full Bench of the Commission said in A Baker v Salva Resources Pty Ltd9:

‘[10]The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and



• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.’

[9] Ms.Rigby’s case was unusually weak. She continually contradicted herself in giving evidence, and did so during the investigation process. At the hearing she initially said that Ms.Maher, a colleague, did not respond when she greeted her and complained about this 10. She later said that on a number of occasions Ms.Maher did not speak to her11. She offered an explanation for this difference, namely that Ms.Maher’s conduct varied at different times12.

[10] Second, she denied that the employer told her on 2 December 2015 that witnesses contradicted her account of events (‘I’m almost 100 per cent certain they did not’ 13). Shortly after this she agreed that she was told that witnesses contradicted her version of events14. She claimed that she ‘misunderstood the question’15.

[11] Third, she told the meeting of 2 December 2015 that there were no witnesses to the events 16. She then said that there was a witness, a ‘young casual’17, and that there would have been other witnesses18.

[12] Fourth, she said that there were no witnesses to another event (Rose allegedly called her a ‘f…… mole’). She then agreed that Ms.Dunn was in the room at the time but said that she did not check with her if she heard the event in question 19.

[13] Fifth, Ms.Rigby said that there were no witnesses to another incident in which the till was as alleged by her slammed down on the bench next to her, but agreed that Ms.Booth was in the room and that ‘I don’t know if Kylie Booth did witness it or not’, and that Ms.Booth was on the phone to her husband and was crying 20.

[14] Sixth, Ms.Rigby said that the till was forcibly dumped on the bench on one occasion 21, and on other occasions was placed on the bench instead of being handed to her22. In her witness statement she said that ‘Rose kept dumping it’, ie. it was forcibly placed on the bench on more than one occasion.

[15] Seventh, Ms.Rigby said that her employer told her that Ms.Maher did the same thing with the till to everyone else 23, but there is no mention of this in her witness statement24.

[16] Eighth, Ms.Rigby said that Ms.Maher approached her on the street and said some words to her, and she was a couple of metres away from her at the time of this incident 25. She then said that Ms.Maher yelled at her from across the street26. She agreed that she changed her story27.

[17] Nine, Ms.Maher said that she had never been involved in any sort of bullying issue during her working life, but then agreed that she made a complaint to her last employer that she was bullied 28.

[18] Ten, Ms.Rigby said that she had never received any warnings written or verbal for performance or conduct, but then said that she had been issued with a first and final warning on 2 July 2015 29.

[19] Eleven, Ms.Rigby said that she was not permitted to bring in a support person to the 2 December 2015 meeting, but then said that she was offered a support person 30.

[20] Ms.Rigby’s version of events is incoherent. Even if I wished to accept her version of events, I am unclear as to what it is given the contradictions, some of which are summarised above. I am also puzzled that Ms.Rigby consistently failed to identify relevant or possible witnesses to events when she could have done so if she was telling the truth.

[21] This incoherence was exposed during the cross examination of Ms.Rigby. It was also exposed by the independent investigator’s report and by the two subsequent employer letters, which analysed her case and its deficiencies. The independent investigator’s report was not available to Ms.Rigby until employer submissions were filed, and the employer letters came later. While the investigator’s report was not available to Ms.Rigby until after her application, she participated in the investigation process and the difficulties with her case were apparent then. Ms.Draper gave Ms.Rigby a letter dated 2 December 2015 31, which detailed serious concerns with her complaint including that her allegations were contradicted by several witnesses, CCTV footage contradicted her claim that Rose ‘dumped’ the till on the bench, the timeline of events contradicted her allegation that Rose told her to ‘watch her back’, and some of her statements were contradictory, eg. which side of the road Rose was when she allegedly yelled or shouted words to her. Ms.Rigby then contradicted herself as to whether or not there had been witnesses, and other matters32. From start to finish Ms.Rigby’s claims did not withstand examination, and this should have been apparent to her.

[22] In my view Ms.Rigby’s application was made without reasonable cause, and was made when it should have been reasonably apparent to her that it had no reasonable prospect of success within s.611.

[23] In relation to settlement offers, the employer offered in writing to settle on the basis of a statement of service on 10 March 2016, 22 April 2016 and 6 May 2016. In each case the employer stated that it would pursue costs against Ms.Rigby if she did not settle, and summarised what it saw as the deficiencies in her case.

[24] In those communications the employer put Ms.Rigby on notice that the employer would be seeking costs, and of the nature of the problems with her application. I do not accept her submission that she ‘was of the understanding that each party paid their own costs’. A Whole New Approach states that she was reminded and made aware by the firm that costs could be made against her after the conciliation on 24 February, between 22 April to 27 April, and on 5 May.

[25] Was she aware of the problems with her case? The employer put her on notice that there were problems with her case, and the nature of the problems. She herself should have realised that her evidentiary case was contradictory. There was a long process of discussion of her claims in which her claims were investigated and assessed, and she participated in that process and should have taken note of what was said, as well as later discussions during the conciliation conference, and later consideration of the employer submissions. The independent investigation analysed Ms.Rigby’s claims and found that none were substantiated. She should have read that document and assessed its contents. It came to similar conclusions to the ones I have come to about the inconsistency in her evidence on issues such as Rose placing the till on the bench 33.

[26] On the other hand I note that she claims that Mr.Pinchen told her that she ‘had a very good solid case’. She also claims that another ‘solicitor’ from the same firm told her that she ‘had a case’. By way of contrast A Whole New Approach does not describe the nature of their advice to her. It states that the application was made under the direction and instruction of Ms.Rigby and similar statements. It does not claim that it told her that her case was solid or not solid. However, it states that she was reminded and made aware by A Whole New Approach that costs could be made against her after the conciliation on 24 February, between 22 April to 27 April, and on 5 May.

[27] I also note that there is no sign in any of Ms.Rigby’s submissions that she is aware of and accepts her role in making and prosecuting a case with no merit. According to her it is always someone else’s fault, whether her colleagues at work, the employer, her representatives, the Commission, or someone else, despite the evidence indicating otherwise.

[28] I am satisfied that a costs order against Ms.Rigby should be made on the basis that it was an unreasonable act or omission on her part not to accept the settlement offer made on 6 May 2016.

[29] In addition, as the employer submits, Ms.Rigby unnecessarily caused the employer to incur costs of preparing for and appearing at the 2 June 2016 hearing which did not proceed due to Ms.Rigby indicating at the hearing that she intended to file an appeal. The time for appealing had expired, and the employer had a legitimate expectation that the hearing would proceed. There was no reason given as to why the appeal was only notified at the hearing, and this is analogous to the circumstances in Church v. Eastern Health 34and Humbert v. EACH Employment35. Ms.Rigby was represented, and no reason for the lateness of advice as to the appeal was provided. This was an unreasonable act or omission. Again, an order for costs is warranted.

[30] Consistent with Full Bench decisions in Brian Clothier v. Ngaanyatjarra Media 36 and Minhaj Mansoor v. Coles Supermarket T/A Coles Northland37 I accept that it may take an applicant some time to understand that his or her case has no or little merit, and that this may be after the case is analysed and the deficiencies pointed out by the respondent or others. I accept as a discretionary matter that an order for costs should not discourage or prevent a party from robustly pursuing an unfair dismissal claim, again which supports a limited scope for the costs order38. This is consistent with the object with respect to unfair dismissal matters (s.381), which refers to the needs of employees. That object also refers to the needs of business and employers, which includes avoiding unnecessary costs. Both have to be balanced and addressed39. The orders should be made with respect to costs incurred on and after 10 May 2016, giving the applicant a period after the last employer offer on 6 May 2016 to properly assess her position. From that date there should have been no doubt in her mind about the serious deficiencies in her case. Costs incurred after that date include the costs incurred during the costs proceedings.

A Whole New Approach

[31] The employer submits that A Whole New Approach was jointly responsible for the ‘numerous deficiencies in the material filed’ and repeats earlier submissions. A Whole New Approach submits that it relied on information provided by Ms.Rigby and that it was reasonable to do so. It states that it was not aware ‘that she was not being truthful’ about bullying at her last place of employment, and was not aware ‘that their client was dishonest’ until the cross examination, and other matters.

[32] As previously noted, Ms.Rigby claims that Mr.Pinchen told her that she ‘had a very good solid case’. She also claims that another ‘solicitor’ from the same firm told her that she ‘had a case’. A Whole New Approach does not describe the nature of their advice to her. It states that she was reminded and made aware by A Whole New Approach that costs could be made against her after the conciliation on 24 February, between 22 April to 27 April, and on 5 May. It states that the application was made under the direction and instruction of Ms.Rigby and similar statements. It does not claim that it told her that her case was solid or not solid. I gave A Whole New Approach the further opportunity to respond to her claims. They did not respond to her claims or contradict her 40. Given the lack of contradiction, and the general description only of their advice and assessment of the case, and the specificity of her description of their advice, it seems likely that her description of their advice is correct. I am satisfied that A Whole New Approach described her case as a good solid case, and therefore encouraged a case without reasonable prospects of success. In any event, either way A Whole New Approach was clearly supportive of the application and its prosecution.

A Whole New Approach was put on notice by the investigation report and three employer letters of 10 March 2016, 22 April 2016, and 6 May 2016, of the nature of the problems with Ms.Rigby’s case. There is no sign in A Whole New Approach’s description of their advice to Ms.Rigby of any reasonable assessment of this material, or acceptance now that the employer’s repeated warnings were correct. Ms.Rigby submits that they told her that she had a good solid case, when in fact the case was weak on any reasonable analysis. I do not accept A Whole New Approach’s claim that it was reasonable not to notice such weaknesses until the cross examination. They should have been reasonably apparent earlier than that, and it was an unreasonable act not to encourage settlement when the employer letters were received.

[33] In addition, as previously noted, Ms.Rigby unnecessarily caused the employer to incur costs of preparing for and appearing at the 2 June 2016 hearing which did not proceed due to Ms.Rigby indicating at the hearing that she intended to file an appeal. The time for appealing had expired, and the employer had a legitimate expectation that the hearing would proceed. There was no reason given as to why the appeal was only notified at the hearing, and this is analogous to the circumstances in Church v. Eastern Health 41and Humbert v. EACH Employment42. Ms.Rigby was represented, and no reason for the lateness of advice as to the appeal was provided by Mr.Pinchen who appeared for Ms.Rigby on 2 June 2016. I am satisfied that A Whole New Approach was jointly responsible for this unreasonable act or omission. Again, an order for costs is warranted.

[34] I am satisfied that A Whole New Approach was jointly responsible with Ms.Rigby for the numerous deficiencies in the case. I am satisfied that the requirements of s.401 are met and that an order should be issued against A Whole New Approach pursuant to that section.

[35] As with Ms.Rigby, A Whole New Approach should pay costs incurred on and after 10 May 2016.

Conclusion

[36] The costs on and after 10 May 2016 will be assessed and an order against each of the respondents of that amount will be made in equal parts. Costs for the appeal are of course not included.

[37] I provide Ms.Rigby and A Whole New Approach the opportunity to each put a written submission about the stated employer costs relating to that period, and including the costs of the costs application. Their submissions should be provided to me by close of business on Friday 4 November 2016. The employer may respond by close of business on Thursday 10 November 2016. I will issue a costs order on the basis of these submissions.

DEPUTY PRESIDENT

 1   Decision in transcript, order PR580211

 2   PN17

 3   PN17

 4   [2016] FWCFB 5094

 5   PN2

 6   PN3, transcript of 2 June 2016

 7   PN10

 8 (1964) 112 CLR 125 at 129

 9   [2011] FWAFB 4014

 10   PN430

 11   Exhibit R1, Witness statement paragraph 22(a); PN435

 12   PN438

 13   PN448

 14   PN461

 15   PN473

 16   PN465

 17   PN517-518

 18   PN527

 19   PN560

 20   PN571

 21   PN581

 22   PN582-587

 23   PN610

 24   PN618

 25   PN659

 26   PN662

 27   PN666

 28   PN723-727

 29   Exhibit R1, Witness statement paragraphs 5 and 20

 30   Exhibit R1, Witness statement paragraphs 29, 32

 31   Exhibit B2, Attachment KD8, paragraph 3

 32   Exhibit B2, paragraph 44

 33   Exhibit B2, Attachment KD6, p.14

 34   [2013] FWC 9970

 35   [2014] FWC 1391

 36   [2012] FWAFB 6323

 37   [2012] FWAFB 8081 and [2012] FWAFB 9415

 38   [2013] FWC 9970 at 22 (Church v. Eastern Health)

 39   [2014] FWC 1391

 40   FWC email 11 October 2016, A Whole New Approach response email 12 October 2016.

 41   [2013] FWC 9970

 42   [2014] FWC 1391

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