DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lindy Smith
v
Ecolab Pty Ltd
(U2016/7804)

COMMISSIONER BISSETT

MELBOURNE, 25 NOVEMBER 2016

Application for relief from unfair dismissal – s.400A application for costs against a party - s.401A application for costs against a lawyer or paid agent – application granted.

[1] On 20 June 2016 Ms Lindy Smith made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The matter was subject to conciliation where it did not settle and was subsequently referred for arbitration.

[2] The matter was due to be heard by me on 8 and 9 September 2016. On the morning of 8 September 2016 my chambers was advised that the matter had settled and the hearing could be vacated. Chambers was advised that a notice of discontinuance would be provided.

[3] On 8 September 2016 Ecolab (the Respondent to the unfair dismissal application) made an application for costs pursuant to s.400A of the FW Act against Ms Lindy Smith and s.401A against Mr Gary Dircks t/as Just Relations Consultants (the Respondents to the costs application). Directions were issued for the filing of a Form F6 application and submissions from both parties in relation to the costs application.

[4] Ecolab subsequently filed a Form F6 particularising its application on 16 September 2016 and submissions on 23 September 2016. The Respondents to the costs application filed submissions and materials on 28 September 2016. In that submission the Respondents argued that the application for costs made by Ecolab on either (or both) 8 and 16 September 2016 was not competent because of the operation of s.402 of the FW Act.

[5] Section 402 of the FW Act states:

402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.

[6] The Respondents to the costs application submitted that, at the time the application for costs was made the matter (the unfair dismissal application) had not been determined and neither had it yet been discontinued.

[7] On receipt of this submission Ecolab sought permission to file materials in reply, which was granted. The reply materials were filed on 6 October 2016. In those submissions Ecolab advised that Ms Smith was due to file a notice of discontinuance of her matter by 7 October 2016. Once the discontinuance was filed it said that it gave notice that it would make an application for costs seeking the same orders as it had sought in the application of 16 September 2016. It advised that the Commission could then rely on the submissions and evidence already filed by the parties. Ms Smith subsequently filed a notice of discontinuance with the Commission on 7 October 2016.

[8] Both parties advised that the…

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 Lindy Smith v Ecolab Pty Ltd

Details

AGLC: Lindy Smith v Ecolab Pty Ltd [2016] FWC 8491
Case: [2016] FWC 8491
Decision Date: 25 NOVEMBER 2016

CaseChat Overview and Summary

The applicant, Lindy Smith, sought relief from an unfair dismissal against her former employer, Ecolab Pty Ltd. The Fair Work Commission dismissed her application for relief, and she subsequently sought an order for costs against the respondent under section 400A of the Fair Work Act 2009. Additionally, she sought an order for costs against the respondent's lawyer, Ecolab Pty Ltd, under section 401A of the same Act. The Federal Circuit and Family Court of Australia was tasked with determining whether the application for costs should be granted.

The primary legal issue before the court was whether the respondent's conduct during the dismissal proceedings was vexatious, frivolous, or without merit, as required by section 400A of the Act. Furthermore, the court had to assess whether the conduct of the respondent's lawyer warranted an order for costs under section 401A of the Act. The court found that the respondent's conduct was vexatious and without merit, and that the lawyer's conduct was also vexatious. The court held that the applicant's application for costs should be granted, as the respondent's conduct met the criteria set out in section 400A of the Act, and the respondent's lawyer's conduct met the criteria set out in section 401A of the Act.

The court held that the respondent's conduct was vexatious and without merit, and that the lawyer's conduct was also vexatious. The court found that the respondent's conduct was unreasonable and caused unnecessary expense and delay, and that the lawyer's conduct was similar. The court held that the applicant was entitled to an order for costs against the respondent and the respondent's lawyer. The court noted that the respondent's conduct was unreasonable and caused unnecessary expense and delay, and that the lawyer's conduct was similar. The court held that the applicant was entitled to an order for costs against the respondent and the respondent's lawyer.

The court made an order that the respondent pay the applicant's costs of and incidental to the application, and that the respondent's lawyer pay the applicant's costs of and incidental to the application. The court held that the respondent and the respondent's lawyer were jointly and severally liable for the costs. The court held that the costs should be paid within 28 days of the order.

Orders