Ming Han v Golden Palace Chinese Restaurant

[2020] FWC 5987

[2020] FWC 5987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ming Han
v
Golden Palace Chinese Restaurant
(C2020/6599)

DEPUTY PRESIDENT MANSINI MELBOURNE, 31 DECEMBER 2020

Costs application – general protections application discontinued in advance of hearing – application dismissed.

[1] This decision concerns an application by Golden Palace Chinese Restaurant for a costs order against Mr Ming Han, made pursuant to sections 400A and 611 of the Fair Work Act 2009 (Cth) (Act).

Context

[2] The original application was filed by Mr Han pursuant to section 365 of the Act, in which he alleged that he had been dismissed by Golden Palace Chinese Restaurant in contravention of the general protections provisions of the Act after two days’ work. Golden Palace Chinese Restaurant filed an initial response in which it objected to the jurisdiction of the Commission because Mr Han was not a person protected from unfair dismissal and contended that it is a small business to which the Small Business Fair Dismissal Code applied. 1

[3] On 10 September 2020, the matter was listed for conciliation to be facilitated by a staff member of the Commission. Golden Palace Chinese Restaurant sought and was granted an adjournment to accommodate its business operations.

[4] On 21 September 2020, Golden Palace Chinese Restaurant filed a notice that it had a lawyer and would seek permission for the lawyer to participate in a conference or hearing.

[5] On 22 September 2020, the parties attended a conciliation facilitated by a Commission staff member. Golden Palace Chinese Restaurant was represented by Hutchinson Legal.

[6] Mr Han’s general protections claim was not resolved at conciliation and Golden Palace Chinese Restaurant pressed an objection to the jurisdiction of the Commission on the basis that there was no “dismissal”. Accordingly, the matter was referred to me for determination of the jurisdictional issue.

[7] On 2 October 2020, I convened a mention. Golden Palace Chinese Restaurant was represented only by its lawyer at that proceeding, who sought and was granted permission pursuant to section 596 of the Act. It was agreed that the matter would be set down for hearing on 10 November 2020 and an exchange of materials in advance was programmed.

[8] On 9 November 2020, Golden Palace Chinese Restaurant requested an adjournment of the hearing which was listed for the following day. Mr Han opposed the adjournment request. However, as neither party had filed any materials in accordance with the program as directed, I determined it appropriate to allow the parties further time. The hearing was relisted for 10 December 2020 with an extended program for the exchange of materials in advance.

[9] At 10.03pm on 13 November 2020, Golden Palace Chinese Restaurant filed an outline of submissions in relation to the jurisdictional objection and two witness statements (some six hours after the directed time for filing).

[10] On 16 November 2020, Golden Palace Chinese Restaurant requested a further adjournment of the hearing. Mr Han opposed the adjournment request.

[11] On 18 November 2020, Mr Han discontinued his application by filing a notice of discontinuance. In an email sent to the Commission on the same date, Mr Han gave reasons for the discontinuance as follows:

I would like to withdraw my complaint against Wei Qing Chen due to the fact the Respondent refused to settle my complaint during the compulsory mediation conference organized by your agency back last Sept.

I have since filed the other legal proceeding against Wei Qing Chen in VCAT.

I would like to focus the proceeding in VCAT as this is more appropriate court to handle this type of complaint.

Thank you for your highest attention on the matter.

[12] As a result of the application being discontinued, the hearing was cancelled and the Commission’s file was closed.

[13] On 1 December 2020, Golden Palace Chinese Restaurant made this application for costs which the application form indicated was pursuant to sections 400A, 611(a) and/or (b) of the Act (Costs Application). In summary, it contended that:

We submit that the FWC should be satisfied under sections 400A, 611(a) or 611(c) (sic) of the Act the Respondent’s Application was vexatious or alternatively caused costs to be incurred because of an unreasonable act or omission of the party in connection with the conduct or continuation of the matter, the Respondent should not have continued the Application in the FWC after making his application to VCAT.

[14] Golden Palace Chinese Restaurant sought an order for $1,290 (an itemised schedule of costs is extracted at Attachment A of this decision).

[15] On 7 December 2020, directions were issued for the filing of materials in relation to the Costs Application. The directions required any requests for a hearing to be made by 15 December 2020 otherwise the matter would be determined on the papers. Neither party requested a hearing and I considered it appropriate for the matter to be determined on the basis of the materials filed with and presently before the Commission.

Statutory context

[16] Section 400A of the Act appears in Part 3-2 – Unfair dismissal and provides:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

[17] Section 611 of the Act provides:

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 of the 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).

[18] In a case involving a costs application following an “early withdrawal” of a general protections claim, the following extracts were cited and it is apt to reference those here:

“[7] A Full Court of the Federal Court of Australia in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (No 2) said the following in relation to the meaning of the relevant test under an identically worded predecessor provision:

“[14] The fact that the CFMEU may have been unsuccessful in its application does not, of course, necessarily lead to the conclusion that the continuation of the proceedings was unreasonable: see McAleer v The University of Western Australia (No 2) wherein Siopis J found that the absence of power in the Court to grant relief did not result in the finding that a counter claim by the respondent university constituted an "unreasonable act" for the purpose of s 824. His Honour observed that the counter claim raised "a blend of public and private law issues". In these proceedings the amendments to the WRA 1996 created significant changes to the conduct of litigation in industrial matters and the Court’s determination affected not only the immediate interests between the parties, but had a wider application for other litigation of an industrial nature.

[15] In R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia, Gibbs J (as he then was) said of s 197A of the Conciliation and Arbitration Act 1904 (Cth):

In my opinion 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.

[16] Young J made a similar observation in Paras v Public Service Body Head of the Department of Infrastructure (No 3)where his Honour said:

There is, however, a distinction between an application that proves unsuccessful and an application or argument that is so misconceived that it can be characterised as unreasonable or vexatious. An order for costs might be made under s 824 in the latter case but not the former.”

(References omitted)

[8] See also Imogen Pty Ltd v Sangwin (1996) 70 IR 254.” 2

Consideration

[19] The original application by Mr Han was made pursuant to section 365 and is a matter arising under Part 3-1 (General protections) of the Act. It is not a matter arising under Part 3-2 (Unfair dismissal) of the Act. Accordingly, there is no jurisdiction to make a costs order pursuant to section 400A and it falls for the Commission to consider the application for costs under section 611.

[20] The role of the Commission in section 365 matters is to take all reasonable steps to resolve the dispute by way of conference of the parties, and to determine certain jurisdictional issues. 3 A majority of these matters are resolved by way of conference or do not otherwise give rise to litigation.

[21] In this matter, Mr Han contended that he was employed for no more than two shifts and was dismissed because he complained about the suggestion he would be paid in cash and about the workplace health and safety practices of Golden Palace Chinese Restaurant. It appears to be common ground that Mr Han sought to pursue multiple avenues in order to seek redress, including via this general protections application, a WorkSafe complaint and a Victorian Civil and Administrative Tribunal (VCAT) claim.

[22] Golden Palace Chinese Restaurant denied these allegations and contended that Mr Han was not dismissed as he was not employed in the first place. It argued that Mr Han had attended the workplace voluntarily for observation purposes between 4.00pm-7.20pm on 24 August 2020 and separately for a supervised “trial” between 5.00pm-7.55pm on 26 August 2020, following which Mr Han was not successful in securing employment. Golden Palace Chinese Restaurant effectively contended that it exercised its right not to offer Mr Han employment following the trial and there was nothing unlawful about its reason(s) for not offering him a job and nor was its conduct unlawful in any way.

[23] On the information before me, I am not able to assess the strength of Mr Han’s claim. It is arguable that Mr Han was employed for at least one shift on 26 August 2020 (described by Golden Palace Chinese Restaurant as a “trial”) if not also the initial attendance to “observe the work environment” on 24 August 2020. It is also arguable that the fact of his complaints was at least one of the reasons for the decision not to continue with employment following the said trial. On the materials before the Commission, there is also a genuine dispute about whether the role Mr Han applied to perform was part time or casual.

[24] Throughout its materials and including in its Costs Application, Golden Palace Chinese Restaurant has addressed the Commission about Mr Han’s “unfair dismissal” claim and the Commission’s unfair dismissal jurisdiction. Those submissions are plainly misconceived and of little assistance in the context of this claim which is made pursuant to section 365 of the Act. A general protections claim is subject of different thresholds and considerations as prescribed by the statute. However, it plainly was contended that notwithstanding the “trial” Mr Han was not employed and therefore was not dismissed. Golden Palace Chinese Restaurant also contended that the claim was vexatious because Mr Han made complaints to WorkSafe Victoria and to the VCAT and in the VCAT claim, sought the same remedy as that of the claim filed in the Commission.

Conclusion

[25] For the above reasons, there is no jurisdiction to make an order pursuant to section 400A. Further, I do not consider in all of the circumstances that the general protections application was made vexatiously or without reasonable cause. The alleged contravention of section 340 of the Act is not conceptually misconceived and I do not consider that it should have been reasonably apparent to Mr Han that it had no reasonable prospects of success. I therefore do not have jurisdiction to make an order for costs pursuant to section 611 of the Act. It is unnecessary that I consider discretionary factors that would have arisen if I had jurisdiction.

[26] Accordingly, I dismiss the application for the payment of Golden Palace Chinese Restaurant’s costs.

DEPUTY PRESIDENT

Determined by written submissions:

Golden Palace Chinese Restaurant
Mr Han 10 December 2020
21 December 2020

Printed by authority of the Commonwealth Government Printer

<PR724375>

ANNEXURE A - Itemised table of costs claimed by Golden Palace Chinese Restaurant

Item No.	Date	COSTS Description of work done		Amount
1.	14 October 2020	103 Instructing for a case for opinion of counsel, or for counsel to advise (including attendance on counsel with brief)		$91
2.	14 October 2020	204 A brief to counsel (including a brief to hear judgment) and attending counsel with the brief		$100
3.	15 October 2020	1301 Counsel fees		$275
4.	13 November 2020	104 Instructing for the preparation of the Respondent’s submissions		$125
5.	13 November 2020	104 Instructing for the preparation of the Witness statements x 2		$125
6.	13 November 2020	203 Preparing Respondent’s submissions		$74
7.	1201 General care and conduct		$500
Costs and Disbursements			Amount claimed	Amount taxed and allowed
Total costs			$1,015	$1,015
Total disbursements			$275	$275
Total costs and disbursements			$1,290	$1,290

 1 Sections 385 and 388 of the Fair Work Act 2009 (Cth).

 2   Mr Vangelis Karantzounis v King Of Knives Pty Ltd T/A King Of Knives [2013] FWC 2601 at [7] – [8].

 3   Coles Supply Chain v Milford [2020] FCAFC 152.