Michael Ranieri v BioGiene Pty Ltd

[2011] FWA 9138

[2011] FWA 9138

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Ranieri
v
BioGiene Pty Ltd
(U2011/6909)

COMMISSIONER MCKENNA SYDNEY, 23 DECEMBER 2011

Application for costs.

[1] On 17 August 2011, I issued a decision and made an order for compensation with respect to an application for an unfair dismissal remedy that had been made pursuant to s.394 of the Fair Work Act 2009 (“the Act”) by Michael Ranieri (“the applicant”). The applicant subsequently filed an application for costs. The application initially sought costs against both the former employer, BioGiene Pty Ltd (“the respondent”) and its paid agent, Mr P Tilbury of HR Genie Pty Ltd. The application is now pressed only against the respondent itself.

Background

[2] The factual background to the substantive application is set out in the earlier decision and need not be repeated here. As to the costs application, however, the following matters arising from the proceedings may briefly be noted. There were some central features in the respondent’s case, as were (variously) outlined in its Form F3 (Employer’ Response to Application for Unfair Dismissal Remedy), in the papers that were filed pursuant to the directions and in the hearing. Shortly stated, the respondent contended it was a small business employer and that the applicant had been summarily dismissed by a manager as a result of the tenor and content of comments by the applicant in a telephone conversation, coupled with prior conduct-related issues. In the end, in the absence of any evidence in the respondent’s case as to the telephone conversation in question in which the dismissal was effected, reliance in the hearing was placed on conduct-related issues.

[3] By way of brief background, after the allocation of the application to me, the matter was initially listed for a telephone mention for the purposes of giving directions. Mr P Smart of counsel appeared for the applicant and Mr Tilbury appeared for the respondent. The directions for hearing and dates for hearing in Lismore, in regional New South Wales, were set by consent. Mr Tilbury subsequently advised that two of the respondent’s witnesses would not be available on the dates that had been set by consent and he made an application that those witnesses give their evidence by telephone. That application was declined, but I acceded to an application that the witnesses appear by video-link. Arrangements were put in place with Lismore Court for the evidence of the witnesses concerned to be given by video-link.

[4] Some short time prior to the proceedings, Mr Tilbury confirmed that not all the witness statements that had been filed would be relied on the respondent’s case, although the estimate of two days had been set against the background of the numbers of witnesses that originally had been advised. As a result, the respondent proposed, in the end, to rely on the evidence of four witnesses. Two of those witnesses were to attend in person at Lismore Court, with the other two to give evidence by video-link.

[5] The evidence of the applicant and the two witnesses for the respondent who appeared in person at Lismore Court completed early on the first day. Mr Smart submitted that the proceedings should continue on the first day, with a view to endeavouring to conclude the proceedings in one day. The proceedings nonetheless needed to be adjourned to the second day because of the arrangements that had been made for the respondent’s remaining two witnesses to give their evidence by video-link. There was no indication that the witnesses would not be available to give evidence by video-link when the proceedings adjourned early on the first day. Further, Mr Tilbury submitted he was not, on the first day, in a position to adduce documentary material in support of the respondent’s contention it was a small business, being a matter which was disputed by the applicant.

[6] At the outset of the proceedings on the second day, Mr Tilbury submitted that neither of the respondent’s witnesses was available to give evidence by video-link. Mr Tilbury’s application that the witnesses should give their evidence by telephone was opposed by Mr Smart and declined by me. On taking further telephone instructions from his client, Mr Tilbury submitted he had been instructed “To go for it and continue”. The matter then moved directly into closing submissions, without any further application being made so as to receive the remaining witnesses’ evidence and permit cross examination. Mr Tilbury submitted in closing that the respondent maintained it was a small business, despite materials such as an induction booklet indicating the respondent employed some 1,500 employees. The respondent’s submissions also maintained that it had no access to human resources expertise in connection with the dismissal, despite a letter that was in evidence from the respondent’s human resources manager to the applicant about certain payments. The respondent’s case had been advanced on the basis that the applicant was aggressive and intimidating towards co-workers and administrative staff, but the evidence was against that proposition. The respondent’s case placed reliance on matters such as warnings that were said to have been issued to the applicant concerning unauthorised early departures from work, but there was, for example, payslip evidence indicating the applicant was on annual leave on one of the dates in question. The applicant was alleged to have misconducted himself in response to lawful and reasonable instructions prior to the dismissal but, again, there was either no evidence as to that or the evidence was against that proposition.

Consideration

[7] The ordinary position in the legislative scheme is that parties to unfair dismissal proceedings bear their own costs, other than in specified circumstances. That is, s.611 of the Act reads as follows:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA is satisfied that it should have been reasonably apparent to the first person, or the first person’s response to the application, had no reasonable prospect of success. ...”

[8] Here, I am satisfied, as to s.611(2)(a) of the Act, that the respondent responded to the application vexatiously or without reasonable cause, or both. From the outset, the respondent asserted it was a small business, despite all available evidence in the proceedings otherwise indicating the respondent employed some 1,500 employees. This position the respondent adopted as to its small business status and the consequential operation of the Small Business Fair Dismissal Code (“the Code”) in relation to the summary dismissal apparently could not succeed. That aspect of the respondent’s case was, it appears, manifestly groundless and bound to fail, based on the evidence the respondent itself adduced into evidence in the proceedings as to an induction booklet describing its size and operations. In any event, and more fundamentally, as I will turn to later, there was, in the end, no evidence at all in the respondent’s case as to the reason for the decision-maker’s decision to effect the dismissal.

[9] The respondent responded to the application by filing nine witness statements pursuant to the directions, but Mr Tilbury later advised that the respondent would not rely on the majority of those statements. The evidence of the two witnesses who were called by the respondent did not support the matters for which the respondent had variously contended prior to the hearing. In particular, and in a way that may be characterised as responding vexatiously or without reasonable cause, the respondent filed various hyperbolically-worded papers (such as two pre-hearing applications which sought to have the applicant excluded from parts of the proceedings), premised on what were said to be witnesses’ security-related concerns about the applicant. The applicant’s submissions, both on the substantive application and on the costs application, posited that the applications such as those which referred to the applicant’s alleged intimidation of the respondent’s witnesses were designed to portray the applicant in a “bad light”. Based on the evidence that eventually unfolded in the proceedings, I consider that the respondent’s response to the applicant’s application in such respects was vexatious or without reasonable cause, and appeared to be premised on harassing or embarrassing the applicant, or so as to gain some collateral advantage in the proceedings by portraying him in just such a light. The evidence of the respondent’s employee witnesses themselves contradicted the matters that had been advanced by the respondent as to such matters in its response to the application.

[10] The arrangements for video-linking two of the respondent’s witnesses had been in place for months in advance of the hearing and it was the responsibility of the respondent to ensure the witnesses were available to give their evidence by video-link following the respondent’s application thereto. The submissions during the hearing of the substantive application suggested the respondent preferred to give priority to business matters as against participation by two of its employee witnesses in the proceedings. Similarly, on the costs application, the respondent’s submissions relied on the respondent’s business-related reasons in explanation of its witnesses’ failure to appear by video-link. That is, the respondent’s submissions on the costs application were that “there existed within the respondent’s organisation inherent difficulties in having witnesses available for cross examination ...”. The respondent has not advanced any satisfactory reason why the witnesses in question were not available to give their evidence by video-link.

[11] The submissions for the respondent on the costs application indicated that the respondent was not aware of the consequences of not making witnesses available. Nonetheless, the directions had been given to facilitate the respondent’s application to have its witnesses appear by video-link, but that facilitation was disregarded in favour of unspecified business-related priorities. The applicant’s submissions on the costs application suggested there was an available inference that the witnesses concerned were never intended by the respondent to give evidence by video-link (and, by extension, that this would have been known to the respondent prior to the second day of the hearing). I am minded to draw the conclusion advanced in the applicant’s submissions. For example, although it would have been open to the respondent to, for example, request its employees to promptly attend the pre-arranged video-link facilities or to seek an adjournment to later that day or to another day for that purpose, the respondent instructed Mr Tilbury, as he quoted in the proceedings, “To go for it and continue”. As a result, the respondent’s evidentiary case concluded without the evidence of two witnesses on whose evidence the respondent would have principally relied, most pertinently including the manager who had effected the dismissal. In those circumstances, I am satisfied that it was reasonably apparent, and should have been reasonably apparent to the respondent, that the respondent’s response to the application had no reasonable prospect of success. I also accept the applicant’s submission in relation to the costs application that if the respondent had indicated that its witnesses were not going to give evidence by video-link on the second day, the hearing would easily have completed in one day - thereby giving rise to consequential costs considerations in relation to the attendance on the second day by Mr Smart of counsel and the instructing solicitor, Mr D Quigley. The respondent, now represented in the costs application by Ms T O’Neill, solicitor, contended that the respondent was largely in the hands of Mr Tilbury as to the conduct of the proceedings, and the respondent did not properly appreciate matters related to the conduct of the proceedings. Notwithstanding this submission, the concept of whether it should have been reasonably apparent to a party that it had no reasonable prospect of success is an objective test.

[12] Objectively considered, even allowing for any subjective impressions of the respondent, there could be no reasonable prospect of success where the respondent did not advance in its case evidence as to the respondent’s version of the content of the telephone conversation with the applicant in which the dismissal was effected and the decision-maker’s reason for the dismissal. Further, there was no evidence from another manager, being the manager whose lawful and reasonable instructions were said to have been disregarded by the applicant in the day or two preceding the dismissal. The failure to adduce relevant evidence in support of matters in contention, in a case of this nature, may, in and of itself, give rise to a finding as to no reasonable prospect of success within the meaning of s.611(2)(b) of the Act. It was the respondent which instructed Mr Tilbury to proceed to closing submissions without the balance of its witness evidence, despite what I observed to be Mr Tilbury’s discomforted demeanour in the proceedings when conveying his specific instructions in this respect. Further, the respondent apparently did not provide to Mr Tilbury any documentary material in support of the contention it was a small business and thus subject to the Code and, in any event, its own induction booklet described matters related to its sizeable operations. I am satisfied, pursuant to s.611(2)(b) of the Act, that it should have been reasonably apparent to the respondent that its response to the application had no reasonable prospect of success absent evidence from the two managers in question. As to ancillary matters, I have already noted that the respondent did not adduce evidence as to its (alleged) status as a small business and such evidence as it did adduce indicated it employed some 1,500 employees. In this regard, the respondent’s submissions also contended it had no access to human resources expertise, whereas the available evidence was indicative of the respondent having not just a human resources manger but a human resources department.

[13] The applicant’s submissions purported to rely on a number of matters in support of the costs application which were not statutorily apposite; I have disregarded those aspects of the applicant’s submissions in the conclusions I have reached. On a consideration of relevant matters, I am satisfied that costs may be awarded in relation to this application under either s.611(2)(a) or s.611(2)(b) of the Act, or both. While orders for costs are uncommon in unfair dismissal proceedings because of the statutory scheme, I am satisfied, given the special and unusual characteristics of the respondent’s response to this application, that it would be appropriate in the exercise of discretion to make an order for costs. I should also note that the applicant’s costs, in this otherwise fairly routine unfair dismissal application, were, as the applicant’s submissions noted, escalated due to the volume of atypical applications and communications made on the respondent’s behalf by the respondent’s former agent.

[14] The applicant sought indemnity costs, i.e., all his costs, not costs limited to party/party costs but including solicitor/client costs. Orders for costs of this nature are rare but are available under the Act given the circumstances of a particular case. I am satisfied that the circumstances of this case justify an order that the respondent pay the applicant's costs assessed on a solicitor/client basis. The circumstances demonstrate an abandonment by the respondent of any responsibility for establishing the facts relied on in its own response, and an equal abandonment of any obligation to Fair Work Australia to follow directions as to evidence as to any matter relied upon or provide advice as to its arrangements. This dereliction extended to wasting not only the time of the applicant and his representatives but also the time and resources of this Tribunal. I am satisfied it is appropriate to order costs against the respondent from the date this application was listed before me for directions on 8 June 2011, when permission was granted by me for the applicant to be legally represented, until decision.

[15] The applicant has also sought costs in relation to the costs application. I intend to order costs in relation to that application on a party/party base basis only. All of my reasons for decision for ordering costs in the substantive application justify an order for costs in the costs application. However, there was none of the unsatisfactory conduct by the respondent in relation to this subsequent application which would cause it to be in the category of an indemnity costs order.

[16] I direct the parties to confer as to costs. If the quantum of costs cannot be agreed, I will refer this file to a member designated for the purpose of taxing a bill of costs. The parties should confirm with my Chambers whether they have reached agreement by close of business on 13 January 2012. Unless I am advised that settlement as to the quantum of costs has been reached, the file will then be so referred without further notice to either party.

Conclusion

[17] In summary, the respondent shall pay the applicant's costs of these proceedings on a solicitor/client basis for the period from 8 June 2011 until 17 August 2011. The respondent shall pay the applicant's costs of his costs application against the respondent in respect of costs incurred in his substantive application on a party/party basis. The parties shall attempt to reach agreement as to the quantum of costs. Unless agreement is reached and advised to Fair Work Australia by close of business 13 January 2012, the file relating to the substantive application and as to the costs application shall be referred to a designated member for taxation of a bill of costs without further notice.

COMMISSIONER

Appearances:

D Quigley, solicitor, for the applicant (on the costs application).

T O’Neill, solicitor, for the respondent (on the costs application).

Hearing details:

Written submissions: 8 November 2011 and 14 December 2011.

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