Mr Aydin Cetin v Speedie Waste Pty Ltd

[2014] FWC 7579

[2014] FWC 7579

FAIR WORK COMMISSION

DECISION

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

Mr Aydin Cetin
v
Speedie Waste Pty Ltd
(U2014/6235)

COMMISSIONER ROE MELBOURNE, 24 OCTOBER 2014

Application for costs in respect to the application to revoke a decision - Order dismissing an unfair dismissal application.

[1] Speedie Waste has made an application pursuant to Section 402 of the Fair Work Act 2009 (the Act) for costs associated with the application by Mr Cetin to revoke an earlier consent order dismissing his unfair dismissal application. 1 Speedie Waste argues that the conditions for the award of costs set out in Sections 400A(1) and 611(2) of the Act are met.

[2] The parties agreed that the costs application would be determined on the basis of the written submissions of the parties. There are no contested evidentiary facts which relate to the determination of the costs application. The only new evidence is the evidence of Mr Ferraro which attests as to the amount of costs incurred.

[3] I accept the submission of Speedie Waste that the Applicant’s representative should have been aware that the material provided on 6 August 2014 was the same as the material provided on 31 July 2014 and that this did not provide a basis for the revocation application. However, I also accept that the Applicant acted on the understanding that it was new material. There is no basis for concluding that this was anything other than a misunderstanding on the part of the Applicant and his representative and in the circumstances I am satisfied that it could not be said that the Applicant acted unreasonably.

[4] I found that there was sufficient time between the receipt of Speedie Waste’s response materials and the hearing for Mr Cetin to prepare his defence. However, I am not satisfied that it was an unreasonable act for Mr Cetin to conclude otherwise. The matter was arguable and I found that Mr Cetin genuinely held this belief. I did conclude that there was no evidence that the Applicant’s representatives dedicated themselves to preparing their response during the available time. However, this is not sufficient in the circumstances of this case to conclude that they acted unreasonably.

[5] I found that the decision to refuse an adjournment was not a denial of procedural fairness and that there were avenues available to Mr Cetin to appeal or further review this matter which were not taken. However, I am not satisfied that it was an unreasonable act for Mr Cetin to believe otherwise and to seek to rectify the matter.

[6] I also found that there was no evidence that the order dismissing the application was made under duress or threat and Mr Cetin had the opportunity to raise objection and he did not do so.

[7] I appreciate why Speedie Waste feels aggrieved in the current circumstances. They incurred costs defending a weak case. There were some aspects of the conduct of Mr Cetin and his representatives which appear to demonstrate a lack of diligence. For this reason it has not been easy to judge whether or not the actions of Mr Cetin and his representatives were unreasonable.

[8] It may have been unwise to make the application given the weakness of the case, but the attempt by Mr Cetin to reopen this matter by lodging the revocation application could not be described as frivolous or speculative. I am not satisfied that making the application to revoke the order was an unreasonable act which justifies an award of costs under Section 400A of the Act.

[9] In respect to Section 611(2)(b) I am not satisfied that it should have been reasonably apparent to Mr Cetin that the application had no reasonable prospects of success. This matter has to be determined objectively. On the basis of the facts known to Mr Cetin the case was objectively weak but not hopeless. Given his genuinely held belief that the facts demonstrated that he had been denied procedural fairness or natural justice it was not unreasonable for Mr Cetin to believe that this application offered a possible avenue of redress and he was so advised by his legal representatives. The case was not manifestly untenable or groundless. The discretion available to the Fair Work Commission under Section 603 is wide.

[10] In respect to Section 611(2)(a) it is not suggested that the application was vexatious. However, it is suggested that the application was made “without reasonable cause”. Mr Cetin believed that he had been denied procedural fairness or natural justice and that an application under Section 603 may have been successful. Mr Cetin’s case was weak and it was ultimately unsuccessful. However, I am not satisfied that it was made without reasonable cause. It is reasonably apparent that in the lead up to the unfair dismissal case Mr Cetin’s representatives wrongly believed that new material had been provided at the last minute and that they were entitled to an adjournment to have more time to prepare a response to the Speedie Waste’s submissions. Mr Cetin made a decision in this context and then believed that the context was a denial of procedural fairness and natural justice. On Mr Cetin’s own version of the facts it was not clear that the proceeding must fail. Mr Cetin believed that the factual circumstances justified a finding that there had been a denial of procedural fairness and that Section 603 could be utilised to redress this. I concluded that the facts did not establish a denial of procedural fairness but Mr Cetin’s judgment was not so untenable as to allow a conclusion that the application was made without reasonable cause.

[11] The application for costs is dismissed.

COMMISSIONER

 1   PR554120 and [2014] FWC 6318.

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<Price code A, PR557029>