Michelle Gray v Hamilton James & Bruce Pty Limited

[2012] FWA 3064

[2012] FWA 3064

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Gray
v
Hamilton James & Bruce Pty Limited
(U2011/675)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 12 APRIL 2012

Application for costs - section 611 - appeal proceedings dismissed application for costs on successful appeal - application for costs at first instance.

[1] On 2 August 2011, the respondent, Hamilton James and Bruce Pty Ltd (HJB), made an application for costs (first application for costs) pursuant to s.611 of the Fair Work Act 2009 (the Act) following my decision to dismiss Ms Gray’s application for an unfair dismissal remedy on 22 July 2011.

[2] I delayed dealing with the application for costs as Ms Gray sought to appeal my decision. On 7 October 2011, a Full Bench declined to grant Ms Gray permission to appeal. 1 HJB then applied for costs in respect of Ms Gray’s appeal (second application for costs), which was dismissed by the Full Bench on 22 December 2011.2 That application for costs was substantially made on the same grounds as the first application for costs.

[3] HJB made written submissions in respect of the first application for costs dated 4 November 2011, and filed supplementary materials on 14 March 2012. Ms Gray filed written submissions in respect of the first application for costs on 13 March 2012.

[4] HJB’s supplementary submissions raise an issue about Ms Gray’s subsequent employment with another company. Those submissions are not relevant for the purposes of this application and have not been relied upon in reaching my decision.

[5] Section 611 of the Act provides 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 ofthe 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 that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: FWA can also order costs under sections 376, 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).

[6] It is HJB’s submission that it was untenable for Ms Gray to argue that she was covered by the Clerks-Private Sector Award 2010 3(the Clerks Award) and as a result, it ought to have been reasonably apparent to Ms Gray that her application under s.394 of the Act had no reasonable prospects of success, and, or in the alternative, was made without reasonable cause. HJB submitted that this enlivened Fair Work Australia’s jurisdiction to make an order for costs under ss.611(2)(b) and (a) respectively, and that I ought exercise my discretion in favour of an order for costs against Ms Gray.

The submissions made in this matter have to a large extent, already been considered by the Full Bench, as the basis for that application was essentially the same as the basis for this application. Irrespective of the grounds of appeal, any reconsideration of whether Ms Gray was an employee covered by the Clerks Award was bound to be unsuccessful having regard to the nature of her role and responsibilities as a General Manager at HJB’s Brisbane office.

[7] The Full Bench considered HJB’s submissions that it should have been reasonably apparent to Ms Gray that her appeal under s.604 of the Act had no reasonable prospects of success, or was made without reasonable cause. 4 In doing so, the Full Bench turned its mind to the matters that also arise in the matter which I now must decide.

[8] Although one ground of appeal asserted that I had made factual errors, in particular my finding that Ms Gray reported to the CEO when in fact she reported to the CFO, the second application for costs was dismissed largely because it was at least arguable that the Clerks Award 2010 covered Ms Gray’s employment.

[9] In deciding to dismiss the second application for costs, the Full Bench made the following remarks:

“[24] The new modern award, the Clerks Award 2010, had not been relevantly considered by a Full Bench. It is in different terms to clerical awards which had been the subject of earlier decisions, including Layton v North Goonyella Coal Minies Pty Ltd. The application of this decision was addressed in submissions and in our earlier decision. Consideration of the grounds of appeal required us to interpret the terms of the new modern award including the coverage and definitions clauses, the annual salary provisions, the history of earlier provisions including an exemption clause, and the terms of the Level 5 classification definition. We also had to analyse and categorise the evidence at first instance about Ms Gray’s contact of employment, position, responsibilities and tasks at HGB, and apply that analysis and categorisation to the construction of the Clerks Award 2010.” (Footnote omitted)

[10] This identifies relevant considerations that would have existed when Ms Gray made her application for an unfair dismissal remedy. I also note that at such time, as opposed to the time at which she instituted her s.604 appeal proceedings, Ms Gray had not had the benefit of having had her evidence tested under cross-examination, and having seen the evidence of the General Manager of the Queensland Office of HJB. 5 Thus, if anything, her case was stronger at first instance than it was on appeal. In these circumstances, it cannot be said that Ms Gray initiated the proceedings in respect of her s.394 application for a remedy in such a way that could enliven Fair Work Australia’s power to make an order for costs under s.611 of the Act; it was at least arguable that her employment at HJB was covered by the Clerks Award and that she was therefore a person protected from unfair dismissal.

[11] Accordingly, I am unable to find that it should have been reasonably apparent to Ms Gray that her application under s.394 of the Act had no reasonable prospects of success or was made without reasonable cause. Her case was at least arguable, and does not fit within the established principles associated with applications for costs brought under ss.611(a) and (b) of the Act.

[12] I adopt the view expressed by the Full Bench in its decision on 22 December 2012, and see no reason for distinguishing it.

[13] HJB’s application for costs is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Michelle Gray v Hamilton James and Bruce Pty Limited, [2011] FWAFB 6884

 2   Hamilton James and Bruce Pty Limited v Michelle Gray [2011] FWAFB 9235

 3   MA000002

 4   Hamilton James and Bruce Pty Limited v Michelle Gray [2011] FWAFB 9235 at [7] and [12]

 5   Ibid. at [11]

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