Mark Kennedy v Get Wines Direct Pty Ltd T/A Get Wines Direct

[2015] FWC 8854

[2015] FWC 8854

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Kennedy
v
Get Wines Direct Pty Ltd T/A Get Wines Direct
(U2015/7869)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] The solicitors for Mr Kennedy sought the costs of an application pursuant to s.394 of the Fair Work Act 2009 (the Act) lodged on his behalf on 25 May 2015 and discontinued by them on 8 September 2015.

[2] An application for an extension of time for lodgement of the application was necessary because the application had been lodged 10 days outside the statutory time limit. However, a Notice of Discontinuance was lodged prior to the determination of the application for an extension of time for lodgement.

[3] I refused the application for costs and issued an Order to that effect on 8 December 2015. 1 On 15 December 2015 the solicitors for Mr Kennedy sought the reasons for my decision to issue that Order. I will now provide my reasons for decision.

[4] The application for costs was made pursuant to s.400A of the Act. That section is set out below:

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.

[5] I can identify no unreasonable act or omission by Get Wines Direct Pty Ltd T/A Get Wines Direct (Get Wines Direct) in relation to Mr Kennedy’s application on which any order for costs could be based.

[6] If the matters relied upon by the solicitors for Mr Kennedy had any weight they could and should have been put in support of his application for an extension of time for lodgement. That necessary application was not proceeded with. The substantive application was discontinued before those matters relied upon by the applicant could be argued.

[7] Get Wines Direct had a response to the substantive application which was outlined in its Employer Response. It had no opportunity to put those matters. There was no opportunity for the Fair Work Commission to determine the merits of those issues.

[8] Having discontinued the application the solicitors for Mr Kennedy have removed the possibility of any resolution of those disputed merit issues. In the absence of any identifiable unreasonable conduct I exercised my discretion to dismiss the application for costs.

SENIOR DEPUTY PRESIDENT

 1   PR574885.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR575329>