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…

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

AGLC: Matthew Gall v Brain Injury Association of Queensland Inc. T/A Synapse [2014] FWC 7393
Case: [2014] FWC 7393
Decision Date: 28 OCTOBER 2014

CaseChat Overview and Summary

Matthew Gall initiated legal proceedings against the Brain Injury Association of Queensland Inc. trading as Synapse, seeking relief from an unfair dismissal. The matter was heard in the Fair Work Commission. Gall alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Synapse, on the other hand, contended that the dismissal was justified under the terms of his employment contract and was not unfair.

The primary legal issue before the Commission was whether Gall's dismissal was indeed unfair, given the circumstances surrounding his termination. The court had to consider the nature of Gall's employment, the reasons provided for his dismissal, and whether the dismissal process adhered to the applicable legal standards for fairness. Additionally, the court assessed whether the dismissal was within the scope of a valid reason, as provided by the Fair Work Act.

In its decision, the Fair Work Commission examined the evidence presented by both parties, including the terms of Gall's employment, the reasons for his dismissal, and the process followed by Synapse. The Commission found that Gall's dismissal was not unfair, as it was based on valid reasons related to his conduct and capability to perform his job. The Commission concluded that Synapse had acted in accordance with the requirements of the Fair Work Act and that the dismissal was procedurally and substantively fair. Consequently, the application for relief from unfair dismissal was dismissed, and the Commission ordered Gall to pay Synapse's costs of the application.

Orders