Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre
[2013] FWCFB 4056
•25 JUNE 2013
[2013] FWCFB 4056 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.611—Costs
v
Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre
(C2012/5547)
SENIOR DEPUTY PRESIDENT ACTON | |
Application for costs in matter numbers U2012/6941 and C2012/5547.
Introduction
[1] This decision concerns an application for costs made under s.611(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act) by Ms Mary Read against Gordon Square Child Care Centre Inc (Gordon Square). Ms Read seeks an order for all of the costs she has incurred in respect of the unfair dismissal remedy application she made against Gordon Square, including the costs of her costs’ application.
Background to the costs’ application
[2] Ms Read made an application for an unfair dismissal remedy on 11 April 2012. The application was heard by Commissioner Bissett. The Commissioner was not satisfied Ms Read’s dismissal by Gordon Square was harsh, unjust or unreasonable and dismissed her application. The Commissioner subsequently issued an order to that effect.
[3] Ms Read appealed the Commissioner’s decision 1 and order.2 A Full Bench of the Fair Work Commission (FWC) upheld the appeal and found that Ms Read’s dismissal was harsh, unjust or unreasonable and Ms Read was unfairly dismissed.3 The Full Bench ordered Gordon Square to pay Ms Read compensation of $16,000 gross plus 9 per cent in superannuation less taxation as required by law.4
Relevant law
[4] Section 611 of the FW Act provides as follows:
“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 ofthe 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)”. [Underlining added]
[5] The phrase “without reasonable cause” was considered by Wilcox J in Kanan v Australian Postal and Telecommunications Union. 5 Section 347(1) of the then Industrial Relations Act 1988 (Cth) provided that:
“A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.” [Underlining added]
[6] In Kanan, Wilcox J said in respect of the phrase:
“A proceeding is not to be classed as being launched ‘without reasonable cause’ simply because it fails. As Gibbs J said in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 at 473, speaking of the Conciliation and Arbitration Act equivalent of s 357 (s 197A):
‘... a party cannot be said to have commenced a proceeding “without reasonable cause”, within the meaning of that section, simply because his argument proves unsuccessful. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s.197A.’
In Standish v University of Tasmania (1989) 28 IR 129 at 139 Lockhart J applied the qualification in ordering costs against an applicant whose case he thought ‘misconceived’, rather than simply unsuccessful. But, as the Full Court pointed out in Thompson v Hodder(1989) 29 IR 339 at 342, ‘there may be cases which could not be described properly as “misconceived” but which would nevertheless be held to have been instituted without reasonable cause’.
It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.” 6
Submissions
[7] Ms Read’s costs’ application under s.611(2)(a) of the FW Act is made on the ground “that the Commission in its discretion might be satisfied that the respondent (the Centre), without reasonable cause, responded to applicant’s (Ms Read) application for ‘unfair dismissal’.” 7
[8] Ms Read submits that the Kanan test applies to determining whether Gordon Square defended her application for unfair dismissal from the outset “without reasonable cause” and that on Gordon Square’s own version of the facts it was clear from the outset that its defence in respect of her application would fail.
[9] In this regard, Ms Read submits that Gordon Square, as an employer in the highly regulated child care industry, is governed by its own supervision policy and management arrangements and State legislation.
[10] Ms Read says the supervision policy was considered by Gordon Square in the processes leading up to her dismissal. As a result, from the outset Gordon Square had the requisite knowledge, responsibility and management resources to measure accurately her actions and behaviours and to make the correct decision that her actions did not warrant dismissal for having failed to provide “effective” or “adequate supervision”. However, Gordon Square failed to implement a commonsense, practical interpretation of key elements of its own supervision policy. Moreover, the supervision policy did not provide any sanctions for its breach.
[11] Ms Read further says she was entitled to expect that from the outset Gordon Square would bring the relevant legislation to bear in assessing her actions. However, such assessment was not done.
[12] Ms Read submits the significant flaws in the decision making of Gordon Square that resulted in her unfair dismissal, were of Gordon Square’s own making. If immediate and proper regard had been had to Gordon Square’s own supervision policy and the relevant law, it should have been clear to Gordon Square that there was no reasonable cause to dismiss her and, therefore, no reasonable cause to oppose her application for unfair dismissal.
[13] Ms Read maintains she has been put to considerable unnecessary expense and personal strain in successfully maintaining her application, and vindicated in her rejection of Gordon Square’s offer of settlement and her courage in defending her professional reputation.
[14] The costs’ application is opposed by Gordon Square.
Consideration
[15] We are not persuaded Gordon Square responded to Ms Read’s unfair dismissal remedy application, or her notice of appeal on Commissioner Bissett’s decision and order on that application, without reasonable cause.
[16] The determination of Ms Read’s unfair dismissal remedy application and notice of appeal involved a decision by the FWC and its predecessor as to whether the conduct of Ms Read, that led to her dismissal by Gordon Square, resulted in a breach of the Education and Care Services National Law (Application) Act 2011 (Tas) and the Guide to the National Law and National Regulations. This was a matter about which the parties were in dispute, both at first instance and on appeal, and on which the argument presented by Gordon Square was not unworthy of consideration.
[17] Further, Ms Read’s unfair dismissal remedy application was for an order granting her a remedy. The remedy she sought until the very end of the hearing before Commissioner Bissett was reinstatement. Only towards the end of that hearing, after the evidence had been heard and Gordon Square had made its submissions, did she seek compensation instead of reinstatement. On appeal, Ms Read again sought a remedy of reinstatement.
[18] Gordon Square opposed the reinstatement of Ms Read at first instance and on appeal.
[19] Ms Read was not granted reinstatement by Commissioner Bissett or on appeal by the Full Bench of the FWC. Gordon Square’s opposition to Ms Read’s reinstatement was successful at first instance and on appeal.
[20] In the circumstances, we do not think it can be sustained that, on the facts apparent to Gordon Square at the time it responded to Ms Read’s unfair dismissal remedy application or her notice of appeal, there was no substantial prospect of its response succeeding or that on its own version of the facts it was clear its response would fail. Nor did we think there are other bases for concluding Gordon Square responded to Ms Read’s unfair dismissal remedy application or notice of appeal without reasonable cause.
Conclusion
[21] For the foregoing reasons, we dismiss Ms Read’s application for costs. An order 8 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
1 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, [2012] FWA 7680.
2 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, PR529179.
3 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, [2013] FWCFB 762.
4 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, PR533994.
5 [2009] 43 IR 257.
6 Ibid at 264-265.
7 Written Submissions of Mary Read dated 12 April 2013.
8 Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Early Learning Centre, PR538138.
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