Miss Lara Coops v Rural Industry Training & Extension Ltd T/A Rite

[2015] FWC 588

[2015] FWC 588

The attached document issued with the above code on 11 May 2015 is now re-filed to rectify administrative errors.

Jenny Hannay

Associate to Commissioner Simpson

Dated: 12 May 2015.

[2015] FWC 588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Lara Coops
v
Rural Industry Training & Extension Ltd T/A RITE
(U2014/10522)

COMMISSIONER SIMPSON BRISBANE, 11 MAY 2015

Application for costs order pursuant to s.400A and s.611 against Applicant - Application for costs order pursuant to s.401(1A)(a) of the Act against paid agent - Unreasonable act or omission of representative in connection with the conduct or continuation of the matter - Costs order would have been made - No costs available as Second Respondent not a paid agent.

[1] On the 3 July 2014 Miss Lara Coops (“the first Respondent”) made an application under s.394 of the Fair Work Act (“the Act”) for an unfair dismissal remedy against Rural Industry Training and Extension Ltd. (“the Applicant”) For simplicity and to avoid confusion I will identify the parties throughout this decision by their standing in the two costs applications and not the discontinued unfair dismissal application.

[2] On 23 July 2014 the Applicant filed the Employer’s Response (F3) raising their jurisdictional objection on the basis that the Applicant resigned from her employment without notice. On 24 July 2014 the Applicant sent correspondence to the Fair Work Commission (FWC) advising that it had received legal advice, and foreshadowing a separate jurisdictional issue that the first Respondent’s employment did not meet the minimum employment period.

[3] The Applicant submits that on the 14 August 2014 a conciliation conference was conducted by telephone where the Applicant was self represented and the first Respondent participated with her representative, Mr O’Donnell (“the second Respondent”). The Applicant submits that on several occasions in this conference the second Respondent requested the matter proceed to a hearing. The matter did not settle at this conciliation.

[4] On the following day, 15 August 2014 the Applicant filed a Form F4 Objection to Application for Unfair Dismissal Remedy which stated that the Applicant had 11 employees at the time of the alleged resignation, was a small business employer, and that the first Respondent did not have 12 months service. The Applicant sent a further email to the FWC that day clarifying that it engaged other casual employees who were not regular and systematic employees.

[5] On 22 August 2015 Ms Annie Smeaton of Cooper Grace Ward Lawyers acting on behalf of the Applicant wrote to the FWC requesting that the Applicant’s jurisdictional objection concerning the minimum employment period be dealt with first and separately to the merits of the Application. This proposal was put on the basis that it would avoid unnecessary time and costs for all parties in preparing for a hearing of the entire matter when this jurisdictional objection could be dealt with first. It was further requested that the matter be referred to a Commissioner so that directions could be made about the jurisdictional objection, which it was put could most likely be heard on the papers. A Form F53 Notice of representative commencing to act was filed by the Applicant’s lawyers on 25 August 20014.

[6] Senior Deputy President Drake took carriage of the file and on 31 August 2014 Senior Deputy President Drake wrote to the first Respondent, copying in the Applicant’s lawyer, requesting that the first Respondent provide a statement regarding the period of her employment with the Applicant, and to confirm whether it was to her knowledge, an employer with less than 15 employees.

[7] The first Respondent provided a statement to the FWC on 17 September in response to Senior Deputy President Drake’s correspondence which included a claim that she commenced employment with the Applicant on 22 June 2013 as a school based trainee, and also referring to the Form F3 filed by the Applicant which stated that it employed 18 employees at the time of termination, and further that she maintained at the time of termination the Applicant employed 21 employees.

[8] On 29 September the associate of Senior Deputy President Drake wrote to the Applicant attaching the statement provided by the first Respondent regarding the jurisdictional objection concerning the minimum employment period, and requesting the Applicant provide evidence in relation to the matter within 7 days.

[9] On 1 October 2014 the Applicant’s lawyer wrote to the FWC in response to the correspondence from the FWC confirming its minimum employment period objection, and its other jurisdictional objection that the first Respondent had voluntarily resigned. In support of both objections the Applicant filed five witness statements each including attachments, and also filed a signed letter from Mr Brett Schreiber of Brett Schreiber & Associates, the Applicant’s accountants and auditors dated 29 September 2014.

[10] It is noted that the Applicant was not in fact requested to file material addressing both jurisdictional objections and was only requested to file material addressing the minimum employment period objection. It is also noted that Senior Deputy President Drake adopted the approach of dealing with the minimum employment period objection first and separately to the remainder of the matter which was an approach consistent with what had been requested by the Respondent’s lawyers in their correspondence of 22 August.

[11] There is also further correspondence on the case file forwarded by the first Respondent by email on 2 October 2014 to the Associate of Senior Deputy President Drake 2 October 2014, objecting to the Applicant filing material beyond the scope of the issue that the Senior Deputy President had requested the Applicant to address, and continuing to dispute the claim that the Applicant had less than 15 employees. The letter identified by name 10 persons that the Applicant maintained should be counted in addition to the 12 conceded in the correspondence of 1 October from the Applicants lawyers.

[12] The file was referred to me by Senior Deputy President Drake on the basis that it involved factual disputes regarding the minimum employment period objection which could not be dealt with on the papers. The effect of section 397 of the Act is that it affords the FWC no discretion under Chapter 3, Part 2 of the Act to deal with a matter on the papers where it involves facts the existence of which are in dispute.

[13] On 12 November 2014 I listed the matter for a directions hearing on 3 December 2014. On 1 December 2014 a Form F53 Notice of Representative commencing to act was filed by the second Respondent on behalf of the first Respondent.

[14] In the course of the directions hearing before me on 3 December 2014 representation was granted to both parties. Further both parties agreed to continue to deal the minimum employment period objection first and separately. The Applicant’s representative requested a further conciliation on the basis that it was instructed by the Applicant, (who was self represented at the first conciliation) that the first and second Respondent did not conciliate at the previous conciliation conference. I advised the parties I would take steps to arrange for a further conciliation to be conducted by a person other than myself.

[15] I also determined at the directions hearing to list the minimum employment period objection for hearing on 21 January 2015 and for the hearing to be conducted by telephone, and that any witnesses would be allowed to give evidence by telephone in order to minimise cost. It became apparent in the course of the directions hearing that factual disputes existed concerning whether up to eight or nine different employees of the Applicant should or should not be counted for the purpose of determining whether the Applicant was a small business employer at the relevant time.

[16] In the course of the directions hearing I also noted that material had already been filed by both the first Respondent and the Applicant on the jurisdictional issue of the minimum employment period, however I advised the parties that if either party wished to file further material on that discrete issue they could do so by 13 January 2015. It should be noted parties were not directed to file further material; it was left to the parties to decide for themselves whether they wished to add to the material that had already been filed or not. The direction for the filing of further material at the discretion of the parties was repeated in the Notice of Listing issued on 22 December 2014. The language in that Notice of Listing included the following;

“..Please note any further material the parties which (sic) to submit must be in by close of business Tuesday 13 January 2015...”

[17] It is apparent the use of the word ‘which’ was a typographical error, and should have read ‘wish’

[18] I noted in the course of the directions hearing on 3 December 2014 that of the five statements previously filed by the Respondent, only two appeared to deal with the minimum employment period objection.

[19] A further conciliation conference was conducted before a conciliator on Monday 5 January 2015 which was not successful.

[20] On 13 January 2015 the Applicant filed additional materials including two further witness statements and other supporting documents however the first or second Respondent did not file any additional material.

[21] On 14 January 2015 an amended notice of listing was issued at the FWC’s initiative changing the time of the jurisdictional telephone hearing from 12.45pm on Wednesday 21 January to 12.45pm on Friday 23 January 2015 because of other hearing times in the arbitration roster for that week.

[22] On 15 January 2015 the Applicants lawyers sent email correspondence to my chambers advising of the telephone numbers at which the Applicant’s representative, and three witnesses could be contacted for the scheduled jurisdictional hearing.

[23] On the 22nd January at approximately 11.45am the first Respondent’s representative Mr O’Donnell wrote to my chambers, copying in the Applicant’s lawyers requesting an adjournment of the hearing on the basis of three points, namely;

“(a) The three witness statements for the Applicant (“a reference to the first Respondent in the costs matters”) which I have in my possession (that is statements from Lara Jean Coops, Joanne Power and Rosemary Powley) have not been verified and thus I am reluctant to tender the statements to the Commission.

(b) There are still two statements outstanding at this time, which are the statements of Rebecca Sheehan and Erin Hanley. Miss Sheehan normally resides in Mount Isa but is currently on a property south of Mount Isa and is not contactable. Erin Hanley does not return to Charters Towers until 27 January, 2015.

(c) I advise that it is also my intention to seek leave to view and examine the original documentation, which covers approximately 79 pages, attached to the further witness statement of Kim Anne White dated 13 January, 2015.

Given the circumstances, I seek an adjournment of this matter and apologise for the late notification of this request...”

[24] Later that day correspondence was received from the Applicant’s lawyers objecting to the request for an adjournment on the basis that the directions issued by the FWC required any further material be filed by 13 January, and further that the first Respondent and her representative had been on notice since at least 31 August 2014 that the Applicant objected to the application on the basis of the Applicant not having completed to minimum employment period.

[25] The correspondence strenuously objected to the application for an adjournment, and foreshadowed an application for costs against the first and second Respondents in accordance with s.400A and 401(1A)(b)) if the matter were adjourned. The Applicant otherwise reserved its right in relation to costs.

[26] At 3.22 pm on 22 January email correspondence was forwarded to both parties from my chambers advising them that the adjournment request had not been granted.

[27] At 4.27pm 22 January the Commission received a copy of correspondence from the first Respondent representative to the Applicant regarding material submitted. At 5pm 22 January 2015 a Notice of Discontinuance was filed by the Applicant’s representative.

[28] On 3 February 2015, the Applicant lodged two separate applications for costs, one application pursuant to s.400A and s.611 against the first Respondent, and a separate application pursuant to s.401(1A)(a) of the Act against the second Respondent as paid agent of the first Respondent.

[29] The two costs applications were listed for a directions hearing on 4 March 2015 at which both parties agreed to the application being determined on the basis of the filing of written submissions. Directions were issued on 5 March for the filing of submissions, in the case of the Applicant by 18 March, and the first and second Respondent by 1 April. In accordance with the directions issued both parties filed written submissions, however the Applicant also filed an Affidavit from Mr Russell Toohey.

Costs order pursuant to s.400A and s.611 against Applicant, and Costs order pursuant to s.401(1A)(a) of the Act against second Respondent.

[30] The Applicant submits that the first Respondent engaged in an unreasonable act in connection with the conduct of the matter pursuant to s.400A and brought her application without reasonable cause pursuant to s.611(a), and it should have been reasonably apparent to the first Respondent that her claim had no reasonable prospect of success pursuant to section 611(b).

[31] The Applicant submits that the second Respondent was engaged as a paid agent by the first Respondent in accordance with section 12 of the Act, and unreasonably encouraged the first Respondent to continue with the matter when it should have been reasonably apparent that the matter had no reasonable prospects of success pursuant to s.401(IA)(a). Further it is said that the second Respondent engaged in an unreasonable act or omission in connection with the conduct and continuation of the matter pursuant to s.401(1A)(b) of the Act.

[32] Sections 400A states:

“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.

[33] Section 401 states:

401 Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for an unfair dismissal remedy has been made under section 394; and

(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and

(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under this section 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.”

[34] Section 611 states:

“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).”

[35] The Applicant in its submission attributes the reason for the first Respondent bringing the Application ‘without reasonable cause’ as contemplated in s.611(2)(a) to being that she was angry with the decision of the Applicant to engage a new casual employee to perform work temporarily in the role of receptionist. Further at the first conciliation conference the first and second Respondent just wanted the matter to proceed to a hearing and the matter did not settle.

[36] I am not prepared to award costs on this basis. It is clear the matter of whether the first Respondent’s termination was at the initiative of the Applicant or not, had not been tested at a hearing, and further that question had not even progressed to the point where either party had been directed to file statements or submissions in regard to it. Whilst the Applicant elected to file five witness statements and other material that addressed this issue in addition to the other jurisdictional matter, it had not been required to and did so of its own volition. I make no criticism of the Applicant for electing to file more material then it had been directed to, but I do not accept it would be appropriate to draw a conclusion about a matters in dispute merely on the basis of the filing of untested statements going to part of the case that the first Respondent had not at that stage been required to yet address by the filing of statements or submissions.

[37] I am also not prepared to order costs in the basis of what occurred at the first conciliation conference given there is insufficient material to be satisfied that what occurred at that conference was grounds for the ordering of costs against the first or second Respondent.

[38] The Applicant also says the first and second Respondent provided no evidence to support the first Respondent’s claim that the Applicant was not a small business at the time, providing only a list of names in contrast to the Applicants numerous witness statements and evidence from it accountants and auditors.

[39] It must be remembered the onus falls to the objector to make out its objection. I am not prepared to award costs on the basis of a ‘without reasonable cause’ argument in regard to the minimum employment period issue. The issue was in dispute, the Applicant identified itself in its Form F3 response to the Application as having 18 employees. The first Respondent, in her statement of 17 September maintained at the time of termination the Applicant employed 21 employees, 11 permanents and 10 casuals 6 of those being long term. The Applicants material filed in response conceded that 12 employees should be counted, however claimed 6 of those claimed by the first Respondent were irregular casuals, and another 4 were irregular casuals who no longer worked for the Respondent. On 2 October the first Respondent sent correspondence to the FWC continuing to maintain contested persons were long term casuals and identifying them by name. At the directions hearing on 3 December I sought to clarify the extent of the contest in regard to this issue and it was apparent there remained in the order of 8 or 9 employees in addition to the 12 conceded by the Applicant, that were pressed by the first Respondent.

[40] In the circumstances I am not satisfied that at the time of the making of the application that the matter of whether the Applicant was a small business employer or not was so clear as to satisfy me the application was made without reasonable cause.

[41] The Applicant argues the first and second Respondents would have known, or ought to have known that even if the Applicant was successful on the first jurisdictional issue, evidence that she willingly resigned meant it should have been reasonably apparent to the first and second Respondent’s that the claim had no reasonable prospect of success. This related to the provisions in the Act as s.611(2)(b) in regard to the first Respondent, and s.401(1A)(a) in regard to the second Respondent.

[42] I have a similar view on this point as I do in my approach concerning the submission as to s.611(2)(a) in that the contest regarding whether there had been a termination at the initiative of the employer had not progressed to a hearing, and further that issue had not yet progressed to the point where either party had been required to file statements or submissions on it. As previously stated the Applicant elected to file witness statements and other material that addressed this issue before being required to do so. In those circumstances I am not prepared to make an adverse finding against the first or second Respondent regarding their case concerning the s.386(1) issue, when they had not yet been required to do so. I also cannot be satisfied in those circumstances that it should have been reasonably apparent to the first and second Respondents that the claim had no reasonable prospect of success.

[43] The Applicant also argues the first and second Respondents did not comply with the directions of the FWC to file material on 13 January 2015 causing the Applicant to incur costs in preparing its material in compliance with those directions and preparing for the hearing. It was said it was open for the first or second Respondent to seek an extension or adjournment of the proceedings at that time if they were unable to file their materials.

[44] I disagree with the Applicant’s submission that the first and second Respondents did not comply with the directions of the FWC to file material by 13 January because of a failure to file material by that date. That is because it is clear that it was open to the parties to decide if they wished to provide further material in addition to what they had already filed if they wished to. It is almost always the case that an employer will be in a better position than a former employee to produce evidence concerning whether particular employees should or should not be counted for the purpose of determining whether an employer was a small business at the relevant time or not.

[45] In my view all of the material filed by the Applicant going to the matter of the number of employees that should or should not be counted for the purpose of establishing whether it was a small business employer, including the material filed on 1 October, and 13 January was not of itself sufficient to put the matter beyond doubt. Questions concerning whether particular casual employees fall inside or outside the meaning of the expressions ‘regular and systematic’ and having a ‘reasonable expectation of continuing employment by the employer on a regular and systematic basis’ can involve some complexity. Given the number of persons contested and the material available, it would have been open to the first and second Respondent to have filed no further material than had already been filed, and proceeded to hearing on 23 January relying only on what had been filed to date and seeking to test the Applicants evidence on that point to resolve the issue.

[46] I do however agree with the Applicant’s submissions on a more limited basis. I accept that by the second Respondent allowing the date of 13 January to pass and then waiting for 9 days before alerting the FWC and the Applicant for the first time that it intended to seek to file further statements was an unreasonable act or omission of Mr O’Donnell as a representative in connection with the conduct or continuation of the matter. Further the second Respondent requested an opportunity to examine original documents filed by the Applicant. There was no reasonable explanation provided as to why both the matter of the filing or further statements, or the request to examine original documentation could not have been raised much earlier than the day before the hearing. There was no reasonable basis to grant the adjournment request made on 22 January and it was rejected.

[47] To be clear I make no finding in regard to the asserted difficulties the second Respondent claimed to have been having in securing witness statements - that is not the issue. The issue is that the second Respondent failed to take any steps by 13 January 2015 or between that date and the day before the hearing to advise either the FWC or the Applicant that he was having difficulties in preparing for the scheduled hearing on behalf of Ms Coops or sought leave to file further material after 13 January had passed. Instead the second Respondent waited until the day before the hearing to request firstly the adjournment, and on failing in that course discontinuing the matter on behalf of the first Respondent.

[48] I accept the Applicant’s submission that it was open for the first and second Respondent to proceed to the jurisdictional hearing despite the refusal of the adjournment request the day before the hearing, rather than to discontinue. The adjournment request was made in relation to matters that should have been raised by the second Respondent on behalf of the first Respondent by no later than 13 January. I am satisfied by not doing so this would fall within the meaning of an unreasonable act or omission in connection with the conduct or continuation of the matter pursuant to s.401 (1A). Where I have been prepared to accept the Applicants arguments concerning the merits of a costs order, costs should be borne by the second Respondent and not the first. The second Respondent is an experienced practitioner with many years of practicing in the jurisdiction. The first Respondent is a young person, apparently sixteen at the relevant time who was no doubt relying on the second Respondent’s advice.

Was the Second Respondent a paid agent?

[49] The second Respondent raised for the first time in written submissions filed on 2 April 2015 that he was not a lawyer or a paid agent in this matter as defined at s.401(1) of the Act. The term paid agent is defined in s.12 of the Act as follows:

“paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter”.

[50] As previously stated Mr O’Donnell is an experienced industrial practitioner who has appeared in this jurisdiction, its predecessors and other industrial tribunals for many years. On 1 December 2014 he filed a Form 53 Notice of Representative Commencing to Act in accordance with the FWC Rule 11. Rule 11 reads as follows:

11 Notice of representative commencing or ceasing to act

(1) A person who commences to act as a lawyer or paid agent of a party to a matter that is already before the Commission must lodge a notice with the Commission.

Note: The notice must be in the approved form—see subrule 8(2).

(2) Subject to section 596 of the Act, the Commission may permit a person to represent a party in a matter before the Commission despite the person’s failure to lodge a notice in accordance with subrule (1).

Note: Section 596 of the Act provides for when a party may be represented by a lawyer or paid agent.

(3) A person who ceases to act as a lawyer or paid agent of a party to a matter before the Commission must lodge a notice with the Commission.

Note: The notice must be in the approved form—see subrule 8(2).

[51] At the commencement of the directions hearing on 3 December 2014 I raised the matter of representation, and requested submissions from both parties regarding the matter. Both parties advised they had no objection to the other being represented and I proceeded to make a ruling in accordance with s.596 granting permission for both parties to be represented. No suggestion was raised at any point by Mr O’Donnell following his filing of the F53 that he was appearing in some capacity other then as contemplated by the filing of that notice, including at the mention/directions hearing on 3 December 2014. It is noted that the originating application named the Applicant’s representative as Jo-Anne Power, the Applicants mother.

[52] Correspondence received throughout the conduct of the matter from the second Respondent by the FWC was received on letter head marked, ‘James O’Donnell & Associates Industrial Relations Consultant and Advocate.’

[53] The F50 Notice of Discontinuance was filed on 22 January 2015 and signed by Mr O’Donnell on behalf of Ms Coops in accordance with rule 10. Mr O’Donnell described himself on the form as ‘Applicant’s Representative’. Rule 10 reads as follows:

10 Discontinuance

(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or

(b) advising the Commission by letter, email, fax or telephone that the applicant:

(i) wishes to discontinue the application; or

(ii) has settled the application; or

(iii) wishes to withdraw the application; or

(iv) no longer needs the Commission to deal with the application; or

(c) advising the Commission of the discontinuance during the course of a conference or hearing.

Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).

Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.

Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.

[54] Rule 17 of the Rules reads as follows:

17 Documents to be signed and dated

(1) A document (other than an affidavit, annexure or exhibit attached to another document) that is lodged by a party in a matter must be dated and signed by either:

(a) the party; or

(b) if the party has a lawyer or paid agent—the lawyer or paid agent.

Electronic signatures

(2) If a document (other than a statutory declaration) is required by these Rules to be signed by a person, the requirement may be satisfied:

(a) by affixing the person’s signature to the document by electronic means by, or at the direction of, the person required to sign the document; or

(b) if the document is an approved form that is lodged with the Commission by email or using the Commission’s electronic lodgement facilities—by typing the name of the person completing the form in the box beside the word “Signature”.

[55] The costs applications were listed for directions on 4 March 2015. The costs application filed on 2 February directed at the second Respondent made explicitly clear it was seeking a costs order again him in his capacity as a paid agent. However at the directions hearing of 4 March 2015 the second Respondent took no steps to alert either the FWC or the Applicant to a claim that he had not acted as a paid agent in the matter for the first Respondent and directions were issued for the filing of material on that basis.

[56] The second Respondent in a written submission in response to the costs applications provided no particulars to support his submission that he was not acting as a paid agent on behalf of Ms Coops. All of the second Respondent’s conduct up to that point supported a conclusion that he was acting as a paid agent. As an experienced industrial practitioner Mr O’Donnell should have been aware that he could only file lodge, sign and date documents on behalf of the Applicant in the capacity of either a lawyer or a paid agent.

[57] Given the written submission made that he was not a paid agent I listed the matter for a further telephone hearing on 11 May to address the discrete issue of the second Respondent’s submission that he was not a paid agent. At the telephone hearing on 11 May the second Respondent maintained that he had been contacted by the Applicant’s mother concerning the matter and in discussions with her agreed to represent the Applicant at no cost. I asked Ms Power, the Applicant’s mother to provide me with her understanding regarding the arrangement with the second Respondent and she confirmed the second Respondent’s claim that there was never an arrangement requiring payment. When I queried the second Respondent as to why he had filed and signed documents that are applicable only to a lawyer or paid agent he pleaded ignorance. I also queried the second Respondent as to why he did not bring to the attention of the FWC, or the Applicant in the costs matter the submission he now makes at either of the directions hearing on 3 December 2014 (at which he was granted permission to appear in accordance with s.596), or at the directions hearing for the costs matters on 4 March 2015). The Second Respondent was unable to provide any reasonable explanation in my view as to why he did not raise this matter at those times.

[58] Given the submission of the second Respondent and Ms Power that at no time was there an arrangement involving the second Respondent charging or receiving a fee to represent the first Respondent the only conclusion available is that he was not a paid agent within the meaning of the Act. On that basis there is no power to grant the order sought by the Applicant against the second Respondent.

[59] Had the second Respondent been a paid agent I would have concluded that costs should be paid by the second Respondent to the Applicant for costs incurred from the period between 14 January 2015 and 22 January 2015 for the reasons set out above. The second Respondent on behalf of the first Respondent challenged the ability of the Applicant to pursue costs against the first Respondent as she was a minor during her employment. As I do not intend to make any costs order against the first Respondent I do not intend to address this submission. On the basis of the findings above both cost applications are dismissed.

[60] In closing however I make the following comment. Mr O’Donnell appears regularly in the FWC and also has many years experience as an industrial advocate. It reflects poorly on Mr O’Donnell to appear as he did at the hearing on 11 May 2015 and plead ignorance of the procedural rules that apply to paid agents given he regularly seeks permission to appear before the FWC on that basis. Mr O’Donnell needs to bear in mind that the FWC has broad discretionary powers in determining the procedure to be followed by parties appearing before it. This power goes beyond the granting of permission for a paid agent to appear pursuant to s.596. Conduct of the kind described in this decision could ultimately jeopardise permission being granted to appear regardless of the basis on which it is sought.

COMMISSIONER

Appearances:

Ms Smeaton and Ms Le Roy of Cooper Grace Ward Lawyer on behalf of the Respondent.

Mr O’Donnell on behalf of the Applicant.

Hearing details:

2015

Brisbane

4 March, 11 May

Printed by authority of the Commonwealth Government Printer

<Price code B, PR560368>