Miss Kate Achieng v The Commonwealth of Australia, represented by Centrelink
[2011] FWA 2111
•6 APRIL 2011
[2011] FWA 2111 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Kate Achieng
v
The Commonwealth of Australia, represented by Centrelink
(U2010/6081)
COMMISSIONER DEEGAN | CANBERRA, 6 APRIL 2011 |
Application for costs.
[1] This application arises from a decision to dismiss an application for an unfair dismissal remedy lodged by Ms Kate Achieng (Ms Achieng) on 15 February 2010 in respect of the termination of her employment by Centrelink.
[2] The decision to dismiss the application was made ex tempore at the conclusion of the hearing on 3 June 2010 and reasons for the decision were published on 14 July 2010. 1 The representative for Centrelink made an oral application for costs at the time the ex tempore decision was given. In accordance with directions given at that time, on 27 July 2010 Centrelink lodged, and served on Ms Achieng, submissions in support of the costs application.
Background
[3] Due to a period of extended leave (1 August 2010 - 5 November 2010) no further action was taken on the matter until 9 November 2010 when Ms Achieng was directed to file any response to the Centrelink application by 29 November 2010. On 16 November 2010 Ms Achieng sought an extension of time for the filing of her response due to a medical condition. After a hearing on 13 December 2010, at which Ms Achieng failed to appear, further directions were given that Ms Achieng file any submissions in response to Centrelink’s application by 31 January 2011. Those directions were sent to Ms Achieng by email and by registered post on 14 December 2010. The registered post envelope was returned, unclaimed, on 16 January 2011. On 29 January 2011 an email was received in Chambers from Ms Achieng requesting a further extension for the filing of her response as she was in Kenya, receiving medical treatment and unable to travel.
[4] On 11 February 2011 Centrelink indicated that it did not object to a further “reasonable extension of time” being granted to Ms Achieng to file her submissions, and to new directions being issued requiring Ms Achieng to file her submissions by 14 March 2011. The revised directions made it clear that the matter would be determined on the written submissions of the parties and that Ms Achieng was not required to attend for a hearing.
[5] On 14 March 2011 Ms Achieng filed a response to the Centrelink application.
[6] I have decided that this matter should be decided on the submissions filed by both parties in order to avoid the costs of a further hearing, which would appear to be unnecessary.
The Legislation
[7] Section 611 of the Fair Work Act 2009 (Cth) provides Fair Work Australia with power to award costs on the following terms:
(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.”
Centrelink’s submissions
[8] It was Centrelink’s central submission that Ms Achieng should not have filed her unfair dismissal application as it had no reasonable prospect of success. In the alternative, it was submitted that Ms Achieng acted unreasonably in failing to discontinue and withdraw her application at each or one of the stages of the proceedings when Centrelink’s attitude and response to the claim were made known to her: firstly, after the conciliation of 9 March 2010 when Centrelink’s witness statements and response were filed; and again on 26 May 2010 when Centrelink put her on notice that it would be seeking costs against her unless she withdrew her application.
[9] Centrelink argued that the following passages from the decision at arbitration indicated that the case was not decided on arguable questions of law but on facts which were known to Ms Achieng at the time she made the application, and as a result of which it should have been apparent to her that her application had no reasonable prospects of success:
[47] I was satisfied that there was a valid reason for the termination of the applicant’s employment. I was satisfied that when the applicant completed her pre-employment forms in respect of her position with Centrelink she was patently dishonest, both in not disclosing the WorkCover charges pending against her and in not admitting that she had, in the past, used and been known by the name Kate Otieno.
...
[50] Whether or not the applicant was guilty of the WorkCover fraud for which she was charged and convicted is immaterial to the reasons for which her employment with Centrelink was terminated. The applicant concealed her use of the name Otieno and did not disclose the proceedings pending against her, which were clearly directed to her as Kate Otieno also known as Kate Achieng. It was as a result of her dishonesty in completing the forms that the applicant’s employment was terminated. Consequently, the outcome of the appeal from the magistrate’s decision was of no relevance. Whatever that outcome, it would not excuse the dishonesty through which the applicant gained employment with Centrelink, or restore the trust essential for Centrelink to allow the applicant to occupy the position of Customer Service Adviser.
[10] Centrelink also relied on numerous passages from the evidence referred to in the decision which, it was put, indicated that Ms Achieng was disingenuous in her claim that she was not known by the name Kate Achieng Otieno and that she was not the person against whom the Workcover proceedings had been brought. 2 Additionally it was argued that at the time of her termination Ms Achieng had been aware of all those documents Centrelink relied upon in establishing her dishonesty and that these were again brought to her attention at each stage of the proceedings before Fair Work Australia (including the filing of Centrelink’s response to the application and upon Ms Achieng’s receipt of Centrelink’s statements, submissions and documentary evidence). Centrelink noted that on 26 May 2010 an offer was made to Ms Achieng that costs would not be pursued if the application was withdrawn at that stage, but that costs would be sought if the application proceeded.
Ms Achieng’s Submissions
[11] In response Ms Achieng submitted that:
- she was within her rights in making the claim as she was dismissed for crimes she did not commit;
- she was dismissed on the basis of wrong information;
- she was prepared to be suspended without pay until her innocence was proven but Centrelink would not agree and dismissed her;
- there were two people involved in the case - Kate Achieng who worked for Centrelink and Kate Achieng Otieno “who had done the crime”;
- she had now lost her dream career;
- she has no money and her house has been repossessed;
- she is undergoing treatment for mental illness; and
- she should not have to pay the “court charges” (sic) as she was “trying to prevent someone who is innocent from losing her life and career”.
Consideration and Conclusion
[12] In this matter I have a discretionary power to order that Ms Achieng pay some, or all, of the costs of the respondent if I am satisfied that it should have been reasonably apparent to her that her application had no reasonable prospect of success. 3
[13] There have been relatively few decisions of this tribunal in relation to the application of s.611(2)(b) since that section took effect on 1 July 2009. The expression “no reasonable prospects of success” was a feature of the previous legislation. 4 In Australian Broadcasting Corporation v Scott Dickson5Lawler VP considered the meaning of the expression as follows:
[12] The expression “no reasonable prospects of success” in s.170CJ(1) invokes the general law test for summary dismissal. A conclusion that an application had no reasonable prospect of success should only be reached with extreme caution and where the application is manifestly untenable or groundless. 6 In relation to s.170CJ(1), “unless, upon the facts apparent to the applicant at the time of instituting the appeal, the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available.”7 There is a very high standard. It is not met by merely finding that the applicant was likely to fail.
[13] The element of reasonableness in the tests in s.170CJ invokes the standard of the reasonable person. The tests call for a consideration of assessment or actions of a reasonable person in the position of the party against whom the order is sought. This was explained by the Full Court of the Federal Court in Council of Kangan Batman TAFE v AIRC. 8 Addressing the test in s.170CJ(2), the Full Court said:9
“The discretion to award costs is only available if the Commission is satisfied that the party in question acted unreasonably in failing to agree to terms of settlement.
The requirement that the Commission be satisfied means that the Commission must make an assessment of the actions of the party in question. In undertaking this assessment it acts objectively, that is to say, it brings its own opinion to the circumstances which resulted in the failure to agree to the terms of settlement.
Because the Commission must make its own judgment about whether the party acted unreasonably, the views of that party about the chances of success of the case cannot be determinative.
But that is not to say that the views of that party on various issues relevant to the decision not to agree to the terms of settlement are necessarily irrelevant or cannot be taken into account. Indeed, as the Commission is investigating the action of that party, an obvious starting place for the investigation is to enquire why that party did not settle. A natural process of reasoning under the section would start by determining why the party failed to enter into the terms of settlement. The next step would be to assess whether that action was unreasonable. In other words, the views and motivations of the party will be the usual basis from which an assessment of reasonableness will be made.”
[14] The tests invoking the standard of reasonableness are not applied solely by reference to the facts as believed or asserted the party against whom an order is sought. In determining the “facts apparent to the applicant”,
“[a] distinction must be drawn between facts which were reasonably susceptible to objective specification and facts which turn on matters of impression or interpretation. In relation to facts that were reasonably capable of objective specification, a costs application will be determined by reference to the facts as found. In the case of facts that turn on matters of impression or interpretation, the Commission ought proceed on the basis of the facts as reasonably perceived by the party against whom the application is made.” 10
(Footnotes in original)
[14] The decision in Kangan Batman TAFE v AIRC is apposite to this matter. The applicant continues to claim that she is not the person against whom the Workcover charges were brought and, in such circumstances, she was not required to reveal those charges to Centrelink when completing her pre-employment forms. On any objective view of the evidence before me such a claim could not, and cannot, be sustained. My decision set out in some detail matters given in evidence by the applicant which totally contradicted such a claim. It should have been apparent to the applicant, as it would have been apparent to any reasonable person in possession of the facts known to her at the time she made her application, that her claim of mistaken identity, and as a consequence her claim of unfair dismissal, had no reasonable prospect of success.
[15] Satisfied as I am that the test in s.611(2)(b) has been made out, whether or not costs should be awarded in this matter is still within my discretion. In determining this matter I have taken into account the significant expense to which the respondent has been put to defend the matter and the correspondence sent to Ms Achieng on 26 May 2010 in which the respondent offered not to pursue her for costs if she withdrew the application. At that stage of the proceedings the respondent had already been put to considerable cost and Ms Achieng was fully aware of all the evidence upon which the respondent would rely to respond to her claim.
[16] In all the circumstances of this case I consider that an award of costs should be made. I am prepared to order that Ms Achieng pay all the costs of the respondent incurred after 26 May 2010 when Ms Achieng was clearly put on notice that, unless she withdrew her application, costs against her would be sought. At that date Ms Achieng was fully aware of the strength of the respondent’s case. In reaching this decision I have also taken into account that Ms Achieng was self-represented in the proceedings and now claims to be suffering from a mental illness, a claim that had some limited support in the nature of an email from a medical practitioner which Ms Achieng supplied when requesting more time to respond to the costs application.
[17] I do not consider either of the above matters excuse Ms Achieng’s decision to pursue her application on the basis of that she was not the person who was the subject of the WorkCover proceedings. That claim was clearly unsustainable in the face of the evidence and Ms Achieng was fully aware of all that evidence by 26 May 2010.
[18] An order giving effect to this decision will issue separately.
COMMISSIONER
Appearances:
Mr Jason Noakes and Ms Lindsey Easton, Norton Rose, for Centrelink.
Hearing details:
2 June 2010, arbitration hearing, Sydney
13 December 2010, directions hearing, Canberra
Final written submissions on costs:
27 July 2010 (Centrelink)
14 March 2011 (Ms Achieng)
1 Kate Achieng v The Commonwealth of Australia (Represented by Centrelink) [2010] FWA 5174, PR999249, 14 July 2010 (Deegan C).
2 Paragraph 10 of Centrelink’s written submissions regarding costs dated 27 July 2010.
3 Fair Work Act 2009 (Cth) s 611(2)(b).
4 See Workplace Relations Act 1996 (Cth) s 170CJ(1) and section 658 of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth)).
5 Australian Broadcasting Corporation v Scott Dickson [2007] AIRC 502, 13 July 2007, PR977410 (Lawler VP).
6 Wright v Australian Customs Service (2002) 120 IR 346 at paras [23] - [27] and [32]; Deane v Paper Australia Pty Ltd (2003) 121 IR 362 at paras [7] - [8].
7 Deane v Paper Australia Pty Ltd (2003) 121 IR 362 at para [8].
8 (2006) 156 FCR 275. At para [48] the Full Court assessed as correct the approach adopted at first instance in that case - see para [18].
9 (2006) 156 FCR 275 at para [41]ff.
10 Abbey v Daycare Management Pty Ltd (PR946186, Lawler VP, 30 April 2004) at para [8], cited with apparent approval by the Full Federal Court in Council of Kangan Batman TAFE v AIRC (2006) 156 FCR 275 at para [61].
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