Maria Pintabona v Evertop Investments T/A Jim Kidd Sports

[2015] FWC 4934

[2015] FWC 4934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Pintabona
v
Evertop Investments T/A Jim Kidd Sports
(U2014/12278)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 JULY 2015

Application for relief from unfair dismissal – costs application by Evertop Investments T/A Jim Kidd Sports.

[1] This matter involves a costs application made by Evertop Investments Jim Kidd Sports (JKS) following a decision 1 issued on 21 May 2015. In that decision, I dismissed an unfair dismissal application made by Mrs Pintabona.

[2] JKS has sought costs on the basis that:

“1. The claim for wrongful dismissal was made without reasonable cause and it is the view of the Respondent that the Applicant made the claim as a means of gaining financial benefit only.

2. The Applicant’s claim had no reasonable prospect of success as the grounds for termination and process undertaken were made clear to the Applicant.

3. The Respondent incurred costs in connection with the continuation of the matter before the Commissioner.

.…”

[3] Whilst the JKS costs application did not refer to a specific provision of the Fair Work Act 2009 (the FW Act) it was made through the lodgement of a Form F6. Accordingly, I have taken it to be made under ss.400A and/or 611 of the FW Act. These sections state:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if 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 matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

….

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).”

[4] I have considered the costs application on the basis of written submissions provided by both parties together with submissions made in a hearing on 20 July 2015. In that hearing, JKS was represented by Mr Kidd and Mrs Pintabona by Mr McCorry, as agent pursuant to permission granted in the haring of the matter at first instance.

[5] Mrs Pintabona’s position in response to the application is that JKS has not established a basis upon which costs could be granted and that there is no basis upon which the Fair Work Commission could conclude that her claim was made or pursued without reasonable prospects of success. Mrs Pintabona put an alternative submission in that the claim for costs in that she asserted that:

“…. the fees charged by Mr Shane Crommelin – ostensibly for appearing as a witness in the proceedings. However, Mr Crommelin’s principle role was to represent the respondent throughout the proceedings. The respondent is precluded from claiming costs in respect to Mr Crommelin’s representation by section 12 of the Legal Profession Act 2008 (WA) which makes it offence for a person who is not a legal practitioner to perform such work unless authorised by a WA Law. Mr Crommelin is not so authorised.” 2

Findings

[6] I have considered whether Mrs Pintabona’s application constituted an unreasonable act or was made without reasonable cause and was then pursued when it should have been reasonably apparent to her that it had no reasonable prospect of success.

[7] The factors addressed in my decision address these issues. In that decision I concluded that Mrs Pintabona’s conduct in untruthfully reporting the telephone call she received on 17 July 2015 represented a valid reason for the termination of her employment. This is a factor indicative of unreasonableness relative to the making and pursuit of the application. 3

[8] However, my finding that the allegation that Mrs Pintabona took material from JKS was not made out, provides a basis upon which the application could be reasonably pursued. 4

[9] Mrs Pintabona was on leave shortly before the termination of her employment. During that time another employee was engaged to undertake some of the duties previously undertaken by Mrs Pintabona and was working from Mrs Pintabona’s workstation when Mrs Pintabona returned to work. Mrs Pintabona was then directed to work in a warehouse area. In my decision I found that this reflected poor management but that it did not explain her behaviour. Nevertheless, I consider that this circumstance is likely to have contributed to Mrs Pintabona’s sense of unfairness.

[10] Having considered these factors and the overall circumstances of the termination of Mrs Pintabona’s dismissal, I am not persuaded, on balance, that her initiation of the application, or her continued pursuit of it, should be regarded as unreasonable acts. The application was not obviously untenable or manifestly groundless. The unfairnesses associated with her dismissal must be weighed against my findings about her untruthfulness. I am not satisfied that Mrs Pintabona’s application was initiated or pursued simply to harass JKS or that the application was brought for a collateral purpose.

[11] The JKS costs application is dismissed on this basis.

Appearances:

G McCorry agent for the Applicant.

J Kidd for the Respondent.

Hearing (by telephone) details:

2015.

Adelaide:

July 20.

 1   [2015] FWC 3312

 2   Applicant Submissions, 16 July 2015, para 5

 3   [2015] FWC 3312, para [43]

 4   [2015] FWC 3312, para [44]

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