Mr Andrew Bennett v Sere Corporate Solutions Pty Ltd t/as Perth Freightlines Pty Ltd
[2010] FWA 4581
•29 JUNE 2010
Note: An appeal pursuant to s.604 (C2010/4332) was lodged against this decision - refer to Full Bench decision dated 28 October 2010 [[2010] FWAFB 8315] for result of appeal.
[2010] FWA 4581 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mr Andrew Bennett
v
Sere Corporate Solutions Pty Ltd t/as Perth Freightlines Pty Ltd
(U2009/720)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 29 JUNE 2010 |
Costs application.
[1] Mr Bennett seeks costs against Sere Corporate Solutions Pty Ltd (Sere) pursuant to s658 of the Workplace Relations Act 1996 (the Act). He seeks his costs of the conciliation, the arbitration 1 and this subsequent costs application.
[2] Mr Latham of Counsel appeared for Mr Bennett, instructed by Ms Velasquez of Law Partners. Mr Shoebridge of Counsel appeared for Sere.
[3] The relevant legislative provisions are set out below:
“658 Commission may order payment of costs
------
(2) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 643 has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 643 caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.”
(my emphasis)
[4] Mr Latham outlined Mr Bennett’s claim as follows:
“3. ------ The first aspect is the unreasonable act or omission in failing to properly participate in conciliation proceedings. The second is the failure to properly respond to the offer of settlement proposed by the applicant.”
(my emphasis)
[5] On behalf of Mr Bennett Mr Latham submitted that Sere’s failure to attend the first conciliation was a proper basis for an application for costs pursuant to ss658(3)(b).
[6] The application was listed for conciliation before Commissioner Raffaelli on 4 August 2009. That conciliation was adjourned at a very late stage because of the alleged inability of Sere to attend the conciliation. Sere said it was arranging for lawyers to attend who were from Victoria. So far as I am aware there was no explanation for Sere’s failure to instruct solicitors in a timely fashion or for the necessity for lawyers to be instructed in Victoria.
[7] The explanation provided for Sere’s failure to attend the conciliation was unsatisfactory. Sere delayed instructing solicitors. They decided to instruct Victorian solicitors. As a consequence of these actions Sere alleged it could not attend the conciliation and caused it to be adjourned. Sere was unable to attend the conciliation because it had failed to do what it ought to have done. This involved Mr Bennett in costs which were thrown away and caused further preparation to be made for a second conciliation. I have concluded that Sere should be responsible for these costs.
[8] Sere did not attend the second conciliation but its lawyer did. Following that conciliation Commissioner Raffaelli issued a certificate in the following terms:
“In my view the application has substantial merit. On the material before me, I doubt that any valid reason for termination exists. In any case the decision by the Respondent is, on the material before me harsh in all the circumstances.
I consider that the Respondent is unreasonably failing to agree to terms of settlement that could lead to discontinuance of the application.”
[9] Following that conciliation the application proceeded to arbitration before me. Sere did not comply with directions in relation to the provision of statements or submissions although this failure did not add anything to the length of the hearing.
[10] After the second conciliation Mr Bennett’s solicitors made the following offer of settlement:
“15 September 2009
We are instructed that our client would be prepared to accept an offer on the following terms:
1. The Respondent to provide the Applicant with twelve (12) weeks pay, less applicable taxation;
2. The Respondent to pay the Applicant an amount equivalent to long service leave calculated on a pro-rata basis for a period of five (5) years;
3. The Respondent to provide the Applicant with a neutral Certificate of Service which does not refer to the circumstances surrounding the termination of our client’s employment; and
4. The Applicant to file a Notice of Discontinuance in the Australian Industrial Relations Commission within fourteen (14) days of receipt of the sum in item one.” 2
[11] Sere’s solicitors responded as follows:
“23 September 2009
……
Our client rejects your client’s offer of settlement.
The thrust of your client’s allegation is that his offer to sell our client’s goods was made in jest. As stated at the telephone conference, the unauthorized sale of our client’s property is not a matter for light-hearted comment and is tantamount to theft. As you have also been made aware, there were several attempts by various parties to buy those goods pursuant to your client’s offer.
Our client takes a serious view of your client’s offer to sell our client’s goods, and reserves its rights to make a police report in this regard.” 3
[12] Mr Bennett’s offer was a plausible offer within a reasonable range. Although it contained an offer to settle matters not able to be resolved in the proceedings before me, I do not consider that that is a fatal consideration. Mr Shoebridge and I had the following exchange in transcript.
“SENIOR DEPUTY PRESIDENT: I think though, Mr Shoebridge, let’s get rid of the fluff in the offer. It’s perfectly possible for the respondent to say that the long service leave can’t be resolved in these proceedings and offer to resolve anything that it thinks might arise in these proceedings, which is paragraph 1 only. It was possible for the respondent to respond and say set aside paragraph 2, let’s respond to paragraph 1 -----. 4
[13] In relation to the application for costs pursuant to ss658(2)(b), the issue of the quantum of Mr Bennett’s offer including matters which were recoverable in other proceedings, was the subject of a further exchange between Mr Shoebridge and I.
“MR SHOEBRIDGE: I accept what your Honour says. But your Honour, your Honour might chop it in two and say well l really there’s an offer of 12,000 and 4000. In my respectful submission, that's not the offer, the offer is a combined offer. But even if your Honour adopts that approach it’s still more than three times what this tribunal awarded.
SENIOR DEPUTY PRESIDENT: I’m not sure that’s a reason not to respond though. Unless you don’t want to respond at all and make an offer.” 5
[14] Firstly, settlement of proceedings of this kind often “wrap up” entitlements that do not arise from the application itself. Also, findings made in proceedings of this kind often establish entitlements recoverable in other proceedings. As a case in point, in my decision I found that Mr Bennett had an entitlement to proper notice. To include a consideration of the quantum of that entitlement in the offer from Mr Bennett was not unreasonable.
[15] Secondly, the offer without long service leave was for 12 weeks compensation. Setting aside a possible entitlement to notice that offer was for 8 weeks compensation. It was a plausible, reasonable offer in the circumstances. Sere’s Counsel pressed, as an alternative to dismissing the application, an argument that Mr Bennett was entitled to a lesser amount. Mr Bennett’s Counsel argued that Mr Bennett was entitled to a greater sum. I was not persuaded by Mr Bennett’s arguments in this respect, but that does not cause an offer made in contemplation of possible success in that argument to be an unreasonable offer.
[16] The merits were accurately summarised by Commissioner Raffaelli. I have concluded that it was unreasonable not to have responded to the offer made by Mr Bennett after contemplation of Commissioner Raffaelli’s certificate, and to have agreed to terms of settlement that could lead to the discontinuance of the application.
[17] I order that Sere pay Mr Bennett’s costs arising from this application on a party party basis from the date of the adjourned first conciliation until the conclusion of this costs application, including the costs of assessing those costs and, if necessary, taxing a bill of costs.
[18] Should Mr Bennett’s costs not be agreed within 28 days of this decision this matter should be brought to my attention. I will relist the matter and issue further orders.
SENIOR DEPUTY PRESIDENT
1 Bennett v Sere Corporate Solutions Pty Ltd t/as Perth Freightlines Pty Ltd – 4 March 2010 – PR993894
2 Exhibit Bennett 1 Annexure B
3 Exhibit Bennett 1 Annexure E
4 Transcript PN44 - 11/5/2010
5 Transcript PN45 - PN46 - 11/5/2010
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