Miss Amanda Ross v KD Johns & Co Pty Ltd

[2013] FWC 4835

[2013] FWC 4835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Amanda Ross
v
KD Johns & Co Pty Ltd
(U2013/6358)

COMMISSIONER WILLIAMS PERTH, 19 JULY 2013

Security for the payment of costs.

[1] Miss Amanda Ross (the applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is KD Johns & Co Pty Ltd (the respondent).

[2] The application was conciliated by a Fair Work Commissioner conciliator and a second conciliation was convened by myself but the matter has not been resolved.

[3] The respondent has now made an application for security for the payment of costs.

The legislation

[4] Section 404 of the Act provides as follows:

“The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.”

[5] This “Part” in section 404 means the Part of the Act which contains section 404 which is Part 3-2 Unfair Dismissal of the Act. The substantive unfair dismissal application is made under section 394 of the Act and so is a matter arising under Part 3-2 Unfair Dismissal.

[6] The “procedural rules” as defined in section 12 of the Act means the rules of the Commission made under section 609 of the Act.

[7] Rule 16 of the Fair Work Australia Rules 2010 (the Rules) provides as follows:

“16.1 FWA may, on application, make an order directing a person to furnish security for the payment of costs in respect of a matter or part of a matter arising under Part 3-2 of the Act.

Note FWA will not ordinarily make such an order before the conclusion of conciliation.

16.2 The security must be of such amount, and furnished at such time and in such manner and form, as FWA directs.

16.3 FWA may, on further application:

(a) reduce or increase the amount of security directed to be given; and

(b) vary the time at which, or manner or form in which, the security is to be furnished.

16.4 Without limiting any other power which FWA may exercise, if FWA directs a person to furnish security for costs in respect of a matter or part of a matter arising under Part 3-2 of the Act, it may order that the matter be:

(a) adjourned until security is furnished; or

(b) adjourned indefinitely.”

[8] The Rules have not yet been updated to reflect the Commission’s current name, the Fair Work Commission.

Making an order for security for the payment of costs

[9] The power to make such an order is obviously discretionary.

[10] In Harris v Home Theatre Group Pty Ltd t/a Home Theatre Group 1, Commissioner Asbury provided a summary of the factors to be considered when considering an application for security for the payment of costs which I agree are applicable.

[11] Both parties have filed witness statements and submissions in the substantive unfair dismissal application and I am aware of the contents of these materials.

Respondent’s submissions

[12] The respondent submits that the applicant voluntarily resigned from her employment on 24 January 2013 and gave a resignation letter to the respondent on the same day confirming her resignation. Consequently the respondent submits that there is no jurisdiction to bring the unfair dismissal application and it will inevitably be dismissed at hearing.

[13] Further it is submitted that as a consequence of this the respondent is likely to succeed in pursuing costs against the applicant for making the unfair dismissal application where there was no jurisdiction to do so.

[14] The respondent submits the evidence will demonstrate the applicant applied for jobs with other employers before she resigned.

[15] The applicant’s resignation letter(s) express the applicant’s gratitude for the opportunity to work for the respondent.

[16] The applicant advised other employees that she was resigning.

[17] The applicant processed the resignation through the respondent’s payroll system.

[18] The respondent argues all of these facts demonstrate that the applicant did voluntarily resign and there was no termination of the applicant at the initiative of the employer. It is submitted the weight of evidence is in the respondent’s favour on this.

[19] The respondent submits there is no merit in the unfair dismissal application and the applicant’s claim has no reasonable prospect of success.

[20] Mr Johns of the respondent gave evidence that since the applicant’s employment ended she has taken a number of overseas trips to Singapore, Bali and Europe. The respondent speculates that the applicant has recently incurred considerable expense for this travel and will be incurring costs for legal representation for the unfair dismissal application and so there is doubt that the applicant will be able to pay any costs that might ultimately be ordered against her by the Commission.

[21] The respondent says that in these circumstances the Commission should exercise its discretion and grant the security for the payment of costs application.

Applicant’s submissions

[22] The applicant submits that there has been no evidence led to demonstrate that the applicant will be unable to pay the respondent’s costs if so ordered in the future. The fact that the applicant has engaged legal representatives and has recently travelled overseas does not demonstrate what the state of the applicant’s financial affairs is. There is no evidence before the Commission that the applicant is impecunious.

[23] The only grounds that are seriously pursued for the security for the payment of costs application is that the unfair dismissal application has no real prospect of success.

[24] The applicant argues to the contrary, that the applicant’s case that she was unfairly dismissed is clearly arguable on its face. The applicant’s case will turn on the credibility of the witnesses particularly Mr Johns (for the respondent) versus Miss Ross because they have different versions of their 23 January 2013 conversation which was the catalyst for the separation of the applicant from the respondent.

[25] It is also submitted that it is not in the public interest that employers are able to obtain security for the payment of costs orders solely on the basis that they submit the employer’s evidence should be preferred over the evidence of the applicant. The critical differences in evidence between Mr Johns and Miss Ross are matters for the Commission to decide upon in the hearing of the substantive application.

[26] The applicant also argues that the security for the payment of costs application should have been brought promptly after the last conciliation conference but instead has been brought so late that if the application was successful it would be highly likely that the hearing of the substantive unfair dismissal application which is listed for 29 and 30 July 2013 would need to be vacated to allow the applicant time to arrange for payment in accordance with a security for the payment of costs order.

[27] There is no reason why the respondent could not have much more promptly brought the security for the payment of costs application and the delay in bringing it is a factor that the Commission should consider which goes against granting of the security for the payment of costs order.

Conclusion

[28] The materials that have been filed in the substantive unfair dismissal application include the witness statement of Mr Johns and a witness statement of Miss Ross. Their evidence has not yet been tested in cross examination and because it is likely that findings about the conflicts in their evidence will be central to the determination of the substantive unfair dismissal application it is not appropriate for that to occur in the proceedings for this interlocutory application.

[29] What is clear is that as the applicant submits the determination of the substantive unfair dismissal application is likely to turn on the credibility of these two witnesses.

[30] If in the determination of the substantive unfair dismissal application the Commission concludes that Miss Ross’s version of the conversation between her and Mr Johns on 23 January 2013 is correct then she has a sound factual base on which to argue that she was unfairly dismissed.

[31] I am consequently satisfied that on the applicant’s own version of the facts it cannot properly be said that the unfair dismissal proceedings lacks a reasonable cause. This is not a case where the applicant’s unfair dismissal application was always doomed to fail.

[32] I note that if in the determination of the unfair dismissal application I conclude on the contrary that Miss Ross’s version of her conversation with Mr Johns is not correct then the Commission is likely to conclude that she had voluntarily resigned and her unfair dismissal application will fail and should not have been pursued at all.

[33] There is no evidence before the Commission as to the financial circumstances of the applicant. I have no reason to believe that the applicant is impecunious and that if following the rejection of her unfair dismissal application an order for her to pay all or some of the respondent’s costs is made against her, that she will not be able to pay this.

[34] Considering the circumstances of this matter I do not believe that this is an instance where the Commission should exercise its discretion in favour of granting a security for the payment of costs order.

[35] The respondent’s application for an order for security for the payment of costs is dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

T Lethbridge, representative for the applicant.

B Greensides, representative for the respondent.

Hearing details:

2013.

Perth:

July 17.

 1   [2011] FWA 2910 at paragraph [7]-[23]

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