Mr Adrian Barbaro v Latro Southern Pty Ltd trading as Latro Lawyers

[2015] FWC 7678

[2015] FWC 7678

The attached document replaces the document previously issued with the above code on 18 November 2015.

“Latro Southern Pty Ltd trading as Latro Lawyers and Great Southern Distilling Company” has been replaced with “Latro Southern Pty Ltd trading as Latro Lawyers”.

Stevie Smith

Associate to Commissioner Riordan

Dated: 30 November 2015

[2015] FWC 7678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Adrian Barbaro
v
Latro Southern Pty Ltd trading as Latro Lawyers
(U2015/8238)

COMMISSIONER RIORDAN PERTH, 18 NOVEMBER 2015

Application for Costs Order.

[1] This decision relates to an application by Latro Southern Pty Ltd trading as Latro Lawyers (Latro) for a costs order against one of its former employees, Mr Adrian Barbaro. Mr Barbaro was dismissed by Latro on 15 May 2015. His employment commenced on 3 June 2014.

[2] Mr Barbaro filed an unfair dismissal application on 5 June 2015.

[3] An unsuccessful conciliation proceeding was conducted by the Fair Work Commission (FWC) on 25 June 2015. Mr Barbaro was represented at this conciliation by Ms Young of HHG Legal Group.

[4] Directions were issued by Commissioner Cloghan on 6 July 2015, in relation to the upcoming arbitration.

[5] Mr Barbaro filed a form F50 Notice of Discontinuance on 20 July 2015. I note that both parties had to file and serve documents upon which they intended to rely upon in the proceedings to each other by 21 July 2015. I also note that Latro were not required to file and serve any witness statements until 18 August 2015, some two weeks after the Applicant.

[6] Section 611 of the Fair Work Act, 2009 (the Act) states:

(i) “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).”

[7] Section 400A of the Act 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.”

[8] I note that the Explanatory Memorandum, Fair Work Amendment Bill 2012 states;

“168.     Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.

169.     As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

170.     The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

171.     However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.”

[9] In A Baker v Salva Resources Pty Ltd 1the Full Bench of the FWC confirmed the required analysis in relation to the assessment of applications under section 611 of the Act;

“[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:

• “should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and



• a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless 4 or so lacking in merit or substance as to be not reasonably arguable.”

[10] Latro argued that Mr Barbaro has been given numerous warnings about his performance throughout his employment. Latro submitted that, as a Lawyer, Mr Barbaro should have known that his unfair dismissal application had no reasonable prospect of success based on the seriousness of his actions. Mr Barbaro believes that he had an arguable case for his unfair dismissal. He claims that there was no breach of confidentiality and that he did not work in breach of his WA Legal Practicing Certificate. I note that Mr Barbaro had been represented by Ms Young up until the time that the matter had been discontinued.

Determination

[11] I am not satisfied that Mr Barbaro should have known that his unfair dismissal application had no reasonable prospect of success.

[12] I am also not prepared to find that Mr Barbaro’s application was made vexatiously or without reasonable cause.

[13] Mr Barabaro escorted a photographer, that was known to him, upstairs to his workstation in the office of Latro. This action was in breach of Company policy. In the process, he walked past the firm’s Human Resources Manager, Ms Pascoe. Whilst Ms Pascoe made an enquiry as to why the visitor was upstairs, an explanation was given and Mr Barbaro and his guest walked onto Mr Barbaro’s workstation. If Ms Pascoe had a real or significant concern about Mr Barbaro’s visitor then she should have made the appropriate comment to Mr Barbaro, reminding him that having visitors upstairs is a breach of Company policy. Ms Pascoe made no such comment.

[14] A breach of company policy in this manner does not necessarily warrant termination. It would be a difficult argument to prove that Mr Barbaro has breached client confidentiality as a result of his actions. I sincerely doubt that Mr Barbaro’s behaviour could be characterised as serious misconduct.

[15] The issue in relation to Mr Barbaro breaching his legal practicing certificate is a very serious matter. I note that Mr Barbaro vehemently denies this accusation.

[16] Whilst Latro had not yet been required to file evidence for the unfair dismissal hearing, there is no substantive evidence contained in the file to support this accusation. There is a report of a conversation where Mr Barbaro’s supervisor claims that he “can’t recall” discussing, reviewing or making comments about the file that Mr Barbaro had opened. “Can’t recall” is a non-definitive response. Such a comment pertains little evidentiary value. It means that the person being asked the question cannot provide an accurate answer “one way or the other”. Evidence of this nature does not pass the requisite fairness test for termination.

[17] I raised with Mr Syme during the proceedings the process in relation to Mr Barbaro’s termination. It is obvious from the submissions of the parties and the comments of Mr Syme during the hearing, that Mr Barbaro was not afforded an appropriate level of procedural fairness during his termination process as required by section 387 of the Act.

[18] I also note that Mr Barbaro had engaged legal representation immediately after being terminated.

Conclusion

[19] In determining this matter, I have taken into account all of the submissions and evidence that has been submitted by the parties.

[20] I am prepared to accept and find that Mr Barbaro had an “arguable case” in relation to his unfair dismissal application and that the application was not vexatious.

[21] For the reasons stated above the application is refused.

COMMISSIONER

 1   [2011] FWAFB 4014

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