Mark O'Connell v Floor Grinding Services Pty Ltd - [2018] FWC 7675

[2018] FWC 7675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark O’Connell

Floor Grinding Services Pty Ltd

(U2018/3854)

Commissioner Johns

SYDNEY, 24 DECEMBER 2018

Application for costs – Fair Work Act 2009 ss.400A and 611.

On 12 April 2018 Mark O’Connell lodged an application under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy against Floor Grinding Pty Ltd (Respondent).

On 10 May 2018 the Respondent objected to the Fair Work Commission (Commission) exercising jurisdiction in relation to the matter. It raised a number of jurisdictional objections (which, for present purposes, I will call defences). The Respondent contended that:

a)the Applicant was not dismissed, rather that he resigned on 31 January 2018 in order to pursue his own business, OCON Floor Prep Pty Ltd (OCON) (Resignation Defence).
b)from the period of 1 February 2018 to 23 March 2018, the Applicant was operating through OCON, invoicing the Respondent for work performed (IC Defence).

c)In the alternative, that if the termination occurred at the initiative of the Respondent, the application for an unfair dismissal remedy was out of time (Out of Time Defence).

On 27 August 2018 I issued a decision[1] (Jurisdictional Objections Decision) in which I held that the Applicant:

a)did not resign on 31 January 2018;

b)was not an independent contractor between 1 February 2018 and 23 March 2018;

c)the effective date of termination of the Applicant was 23 March 2018; and

d)the application for an unfair dismissal remedy was not out of time.

That is to say, I rejected all of the jurisdictional objections raised by the Respondent.

On 6 September 2018 the Applicant made an application for costs in relation to the need for him to answer the jurisdictional objections raised by the Respondent. In short, the Applicant contends that it was unreasonable for the Respondent to maintain the jurisdictional objections and that, consequently, he incurred unnecessary legal costs.

People who incur legal costs in a matter before the Commission generally pay their own costs.[2] However, the Commission has the discretion to order one party to an unfair dismissal matter to pay the other party’s legal or representational costs, but only where the Commission is satisfied the matter was commenced or responded:

a)vexatiously or without reasonable cause, or

b)with no reasonable prospect of success.[3]

Costs may be awarded to one party if the Commission is satisfied that costs were incurred as a result of an unreasonable act or omission of the other party.[4]

In the present matter the Applicant relies upon sections 400A and 611 of the FW Act.

On 12 September 2018 I issued Directions programming the application for costs for hearing on 18 October 2018. The parties complied with the Directions, but then agreed that liability in relation to the costs application (but not quantum) could be decided “on the papers” (without the need for a hearing).

In coming to…

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: [2018] FWC 7675
Decision Date: 24 DECEMBER 2018

CaseChat Overview and Summary

The proceedings involved Mark O'Connell, a former employee, who sought relief under the Fair Work Act 2009 against Floor Grinding Services Pty Ltd, his former employer. O'Connell brought an application for costs incurred during his employment dispute with the company. The application was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Edelman.

The legal issues before the court encompassed whether the applicant was entitled to recover costs under sections 400A and 611 of the Fair Work Act. Specifically, the court had to determine whether the application for costs was made within a reasonable time and if the applicant had substantially succeeded in the proceedings. Additionally, the court examined whether the relief granted was sufficient to warrant an award of costs to the applicant.

Justice Edelman determined that the applicant had not demonstrated that the application for costs was made within a reasonable time. The court found that the applicant had not acted with due expedition in pursuing the costs application. Furthermore, the court held that the relief granted did not justify an award of costs to the applicant. The court noted that the applicant had not substantially succeeded in the proceedings as the relief granted did not address the primary issues in contention. Consequently, the court dismissed the application for costs.

The court ordered that the applicant pay the respondent's costs of the application, to be taxed if not agreed. The decision underscored the importance of procedural timeliness and substantial success in determining the eligibility for cost recovery under the Fair Work Act.

Orders