Matthew Gall v Brain Injury Association of Queensland Inc. T/A Synapse

[2014] FWC 7393

[2014] FWC 7393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Gall
v
Brain Injury Association of Queensland Inc. T/A SYNAPSE
(U2013/17396)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 OCTOBER 2014

Application for relief from unfair dismissal; application for costs.

Introduction

[1] Matthew Gall was employed as a Lifestyle Support Worker by the Brain Injury Association of Queensland Inc trading as Synapse (Synapse) until his dismissal on 5 December 2013.On 13 December 2013 the Mr Gall applied for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act). On 10 September 2014 I found that Mr Gall had not been unfairly dismissed and as a consequence I dismissed his application for a remedy 1.

[2] On 24 September 2014 Synapse applied for an order that its costs in defending Mr Gall’s application be paid by Mr Gall on the basis that it should have been reasonably apparent to Mr Gall that his application for a remedy had no reasonable prospect of success.

[3] Synapse’s application for costs relies upon the grounds set out in the submission attached to the application. In that submission Synapse seeks an order for costs to be made pursuant to s. 375B of the Act 2. It is also clear from these submission that Synapse does not apply for an order to be made pursuant to section 611 of the Act but merely says that the considerations relevant to that provision provide guidance with respect to its application under s. 375B of the Act3.

[4] Synapse’s application is misconceived as s. 375B of the Act is not a source of power for the making of an order for costs in relation to an application made under s. 394. As is evident from the terms of s. 375B, the section applies only if there is an application to the Commission to deal with a dispute under s. 365, which concerns disputes related to general protections contraventions involving a dismissal. Mr Gall’s application was not an application under s. 365 of the Act; rather it is an application for an unfair dismissal remedy made under s. 394. It follows that Synapse’s application under that section would fail.

Application to amend initial cost application

[5] On 17 October 2014, a week after it was advised by Mr Gall’s representative that it’s application was flawed, Synapse applied to amend its earlier application so that it was an application made under s. 400A and s. 611 of the Act. The submissions that have been exchanged by the parties are concerned with the circumstances that a costs order might be made under s. 611 and to the extent that those circumstances arise for consideration under s. 375B or s. 400A, the principles applicable to s. 611 are relied upon. For that reason, it seems to me that if the application for an amendment is to be granted, the amendment should be confined to amending the application for costs so that it is an application for costs under s. 611 of the Act. Indeed as I read Synapse submission in support of its proposed amendment, so much is conceded. 4

[6] The power to amend an application contained in s. 586 is discretionary. Mr Gall opposes the amendment. Synapse had been aware since 10 October 2014 that its original application was flawed but took no steps to seek to amend its application or to even foreshadow such application for seven days. No explanation is offered as to the delay. The delay in making its amendment application, which was done in conjunction with its submissions in reply to its principal application, is a factor that weighs against the exercise of my discretion. Conversely, it seems to me that Mr Gall will suffer no real prejudice by the grant of the amendment.

[7] The original application was made within the time that is prescribed by s. 402 for making of an application costs under s. 611 of the Act in relation to an unfair dismissal remedy application. The grounds relied upon, as set out in the submission accompanying the application, are grounds which address the matters set out in s. 611 of the Act. It is noted that Synapse does not suggest the application was vexatiously made. Mr Gall’s submission in opposition addresses the grounds of the making of a costs order under s. 611. Mr Gall is not taken by surprise and is not deprived of the opportunity to make submissions in opposition to an order for costs which are on point and relevent. Furthermore, the amendment proposal will not change the character of the remedy that is sought nor the arguments advanced or relied upon. In these circumstances, on balance I am prepared to amend the application so that it is an application for an order for costs to be made pursuant to s. 611 of the Act, on the grounds that Mr Gall made his unfair dismissal remedy without reasonable cause or that it should have been reasonably apparent to him that his application had no reasonable prospects of success.

[8] However for the reasons which follow I am not persuaded to make a costs order.

Relevant principles

[9] In Rebecca Jones v Brite Services 5 I discussed in some detail the operation and application of the section 611 the Act6. I adopt what is said in that discussion without repeating it. To that discussion I would add that which the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia in Spencer v The Commonwealth of Australia 7 had to say when their Honours considered the meaning of the phrase, “no reasonable prospect,” in the context of s. 31A of the Federal Court of Australia Act 1976. In that case their Honours said the following:

“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes. 8 ”

[10] In Spencer the High Court was saying that one should not make the mistake of only concluding that a proceeding has no reasonable prospect of success if it is frivolous, untenable, groundless or faulty and that full expression should be given to that phrase. It seems to me that the observations in Spencer are apt to apply to the construction and application of the phrase “had no reasonable prospect of success” as it appears in s. 611 of the Act.

Consideration

[11] Synapse submits that the determination of factual controversies in its favour coupled with my finding that I was satisfied that Mr Gall’s misconduct was serious misconduct justifying his dismissal support its contention for an order as to costs. It also maintains that as Mr Gall’s application depended on a false version of events and that he sought to disguise the true nature of this deals, it was also made without reasonable cause.

[12] As I have observed in Brite Services 9, and I repeat here, that a finding is made that there was a valid reason for a dismissal does not mean that the dismissal the subject of the application was not unfair or that the application had no reasonable prospects of success. Nor does it speak to whether, the fact that an application has that characteristic, should have been reasonably apparent to an applicant.

[13] The question of whether a dismissal was harsh, unjust or unreasonable is subject to multi-factorial considerations and is not confined to whether there was a valid reason for the dismissal. So much is clear from the enumeration of factors that must be considered by the Commission in determining whether or not a dismissal was harsh, unjust or unreasonable 10. It is not infrequently the case that a dismissal will be found to have been harsh, unjust or unreasonable on the basis that there was some procedural irregularity in effecting the dismissal even though there was a valid reason or that the consequences of the dismissal on an applicant are significant rending a dismissal for a valid reason nevertheless harsh. Indeed as the High Court of Australia observed in Byrne v Australian Airlines Ltd11, a dismissal:

“. . . may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from material before the employer, and maybe harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct . . . 12”

[14] Mr Gall’s application not only alleged the absence of a valid reason, but also alleged a failure to accord him procedural fairness and was critical of the delay in dealing with the allegations against him and the on again off again nature of the suspension. As I concluded in the decision, some of this criticism was not without merit. 13

[15] Synapse submits that Mr Gall’s application proceeded on an account containing several material falsehoods and was inconsistent with the evidence provided by him in his witness statement dated 12 March 2014. Whilst I accept that there are inconsistencies between the material in the application and the evidence ultimately given by Mr Gall, and that there are findings I have made which are contrary to the evidence given by Mr Gall, this does not result in the application having no reasonable prospect of success or a conclusion that it should have been reasonably apparent to Mr Gall that that was so.

[16] Mr Gall had an arguable case to prosecute. Putting to one side the inconsistencies discussed above, the gravamen of Mr Gall’s case was that he was subjected to an attack by the client in circumstances that were unprovoked and where he was unfamiliar with the client, and the client him. Mr Gall’s response was, according to his case, the least restrictive available to him the circumstances. That I have concluded to the contrary is beside the point. The conclusion to the contrary is based upon an overall assessment of the evidence given by Mr Gall about the incident in circumstances where he was the only person able to give evidence about the incident and after putting to Mr Gall a number of alternatives that I perceived, based on his evidence, were available to him, each of which was less restrictive than the one he ultimately deployed. Even then that conclusion speaks only to the question of whether there was a valid reason for the dismissal.

[17] As to whether, as Synapse now submit, Mr Gall misrepresented the incident in his initial application and did so cognisant of his wrongdoing, or that he gave a false version of events when making his application, these propositions in these terms were never put to Mr Gall. Nor were findings to that effect urged and it would be unfair now to characterise the inconsistencies as a misrepresentation from which an inference of the awareness of wrongdoing in relation to the incident involving the client could be drawn. Moreover I am not persuaded that the inconsistencies support a conclusion that Mr Gall gave a false version of events. I have made no finding of misrepresentation by Mr Gall or of him giving a false version of events.

[18] The key elements of the incident: that Mr Gall was struck but the client, that he was grabbed by the client, that he took down the client in a manoeuvre, that the client reacted with an arm lock and that Mr Gall released himself and then retreated were known to Synapse when it decided to terminate Mr Gall’s employment. These were known to Mr Gall when he made his application and these elements were the subject of evidence before me. The real question that required determinations by me and central to the dispute between the parties was whether Mr Gall employed the least restrictive means available to him. Mr Gall maintained he did, Synapse maintained he did not, and I concluded that he did not. Arising from the inconsistencies all that I have found is that Mr Gall sought to minimise the degree of restraint used by him. This finding falls a long way short of a conclusion of any misrepresentation or false version of events.

[19] Ultimately the determination of the relevant matters required me to assess whether Mr Gall’s dismissal was harsh unjust or unreasonable. This in turn required the resolution of both legal and factual disputes and a consideration of the weight that should be given to each of the matters. The resolution of some of the matters was not complex but in respect of others, the determination of them turned on matters of impression or interpretation. There was a serious dispute about whether Mr Gall’s conduct was contrary to Synapse policy on restrictive practices. That I ultimately concluded that his conduct was contrary to that policy, did not mean that his application had no reasonable prospect of success or that it was made without reasonable cause. It was open for example from me to have concluded that Synapse’s approach to the investigation reflected the seriousness of the incident and that in lifting the suspension and thus giving the impression to Mr Gall that the investigation had cleared him of any wrongdoing resulted in the ultimate decision to dismiss being unfair in those circumstances.

[20] In my view, objectively Mr Gall’s application was at the least arguable. That was so at the time Mr Gall made his application and continued to be so during the conduct of his case. It is not one that can be described as having been made without reasonable cause nor as having no reasonable prospect of success. In the circumstances it is unnecessary for me to consider whether, if the later characteristic could be ascribed to Mr Gall’s application, that fact should have been reasonably apparent to him.

Conclusion

[21] The application for costs as amended is dismissed.

DEPUTY PRESIDENT

 1   [2014] FWC 6048

 2   Submissions in support of application for costs dated 23 September 2014 at [3]

 3   Ibid at [6]

 4   Submissions in reply by Synapse dated 17 October 2014 at [10]

 5   [2013] FWC 4280

 6   Ibid at [4] – [12]

 7 (2010) 241 CLR 118

 8   Ibid at [59] - [60]

 9   Ibid at [24]

 10   See section 387

 11 (1995) 185 CLR 410

 12 (1995) 185 CLR 410 at 465

 13   [2014] FWC 6048 at [92]

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