Mr Chris Miller v Koornang Pty Ltd T/A Rosstown Hotel
[2010] FWA 8304
•29 OCTOBER 2010
[2010] FWA 8304 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Chris Miller
v
Koornang Pty Ltd T/A Rosstown Hotel
(U2009/12785)
COMMISSIONER GOOLEY | MELBOURNE, 29 OCTOBER 2010 |
Application for costs.
[1] Mr Miller was employed by Koornang Pty Ltd t/a Rosstown Hotel (Koornang) as a hotel duty manager until his employment was terminated on 30 September 2009. Mr Miller’s application under section 394 of the Fair Work Act 2009 (FW Act) was heard on 3 and 4 March 2010 and on 23 April 2010 Commissioner Whelan dismissed Mr Miller’s application having been satisfied that the dismissal was not harsh, unjust or unreasonable. 1
[2] On 4 May 2010 Koornang made an application for costs and the application was heard on 30 July 2010.
[3] At the hearing of the costs application Mr Burnett of Counsel sought leave to appear for Mr Miller and Ms Stonier a legal practitioner sought leave to appear for Koornang. Permission was granted.
[4] Koornang sought costs of $16,807.50 being costs of the first proceeding and the costs of the costs application.
[5] Section 611 of the FW Act provides Fair Work Australia with power to award costs:
“(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.”
Section 611(2)(a) Vexatiously
[6] Ms Stonier submitted that the application was instituted vexatiously because it was instituted to harass or embarrass the other party or to gain a collateral advantage. 2
[7] Ms Stonier submits that the test in section 611(2)(a) requires an assessment of whether the respondent felt embarrassed or harassed. 3 The evidence of Mr Nikakis was that Mr Miller issued the proceedings to cause him embarrassment particularly when he appointed Mr Ian Hollingworth as his representative.4 Mr Hollingworth was a customer at the hotel and Mr Hollingworth appeared for Mr Miller at first instance. Ms Stonier further relied upon the fact that Ms Hollingsworth, who was an employee of the Koornang, gave evidence in the proceeding for Mr Miller and subsequently resigned her employment. Mr Nikakis’ evidence was that Mr Hollingworth stopped attending the hotel and Ms Hollingworth resigned her employment. It was clear from Mr Nikakis’ evidence that Mr Hollingworth attended the hotel after Mr Miller made his application5 and that Ms Hollingworth resigned her employment at the same time as the costs application was made and that he did not know why she resigned.6
[8] It was put to Mr Miller that the reasons why he made the unfair dismissal application was to be vexatious and to cause embarrassment to Mr Nikakis and the hotel and the family. Mr Miller’s answer was “not at all”. 7
[9] North J considered what meaning should be given to the term vexatiously in Nilsen v Loyal Orange Trust 8 and said when considering the meaning to be given to this expression in the Workplace Relations Act 1996:
“This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage: see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.”
[10] I do not accept the interpretation put on section 611(a) by Ms Stonier. A proceeding is not instituted vexatiously if it causes embarrassment or harassment. A proceeding is only instituted by the applicant vexatiously if the proceeding was instituted to harass or embarrass.
[11] In this case whilst it may have been embarrassing for Mr Nikakis to have a customer represent the applicant or to have an employee give evidence for the applicant neither of these matters go to the reasons for Mr Miller’s application. I accept Mr Miller’s evidence that he did not institute the proceeding to harass or embarrass the respondent.
Section 611(2)(a) Without reasonable cause
[12] To succeed on this ground Koornang must establish that Mr Miller made his application without reasonable cause.
[13] Wilcox CJ in Kanan v Australian Postal & Telecommunications Union 9 considered the approach to be taken to assessing whether an applicant instituted a proceeding without reasonable cause:
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”
[14] In this matter Commissioner Whelan found that Mr Miller:
1. failed to account for any drinks he provided to himself and other staff members
2. allowed staff to pour themselves drinks without these being recorded or otherwise accounted for both before and after the till was closed.
3. allowed staff to purchase drinks from the bottle shop and place them in the bistro bar fridge and to then consume them on the premises.
4. been drinking and smoking with off duty employees whilst on duty.
5. took minimal responsibility for the closure of the main bar and none for the bottle shop both of which were his responsibility
6. allowed money which should have been secured in the safe to be left on a filing cabinet for over 2 hours and left money in a cupboard in the bar near a door where members of the public were being let in and out of the hotel. 10
[15] Commissioner Whelan found that Mr Miller’s conduct was “of a serious nature and showed disregard for the essential obligations of Mr Miller’s employment.” 11 At the meeting held with his employer on 30 September Mr Miller “admitted to the matters put to him. He had no real explanation for his behaviour.”12
[16] Ms Stonier submitted that on the basis of these admissions it should have been apparent to Mr Miller that he had no reasonable cause to make the application and the application had no reasonable prospects of succeeding.
[17] Ms Stonier submits that while Mr Miller may have, at the time of his termination, had an honest belief that his summary dismissal was unfair this view must be reasonable. Ms Stonier submits that Mr Miller should have sought advice. 13 Ms Stonier submits that Mr Miller did the bare minimum in determining whether he had a claim.
[18] Mr Burnett submitted that this was not simply a case where the applicant admitted to the conduct and relied on procedural issues. He submitted that there were factual disputes between the parties before Commissioner Whelan about whether the conduct alleged warranted summary dismissal and also in issue was the failure of the employer at the meeting on 30 September 2009 to warn Mr Miller that his employment was at risk. Mr Burnett accepted that all of the factual disputes were resolved in favour of the employer and Commissioner Whelan whilst accepting that Mr Miller was not warned found that he “should have been aware that he was at risk of losing his employment because of the seriousness with which Mr Nikakis was treating the matters. 14
[19] Mr Burnett submitted that Mr Miller had an arguable case and it was not apparent to the applicant when he commenced his case that it would fail. 15
[20] Mr Miller’s evidence was that when he was dismissed he reviewed information provided on the Fair Work website about summary dismissals from which he gleaned “that at the start of the meeting I was never told that my job was in jeopardy. So I assumed that I had a fair case.” 16 He stated that the website advised employers that when summarily dismissing an employee to “make sure you follow all the steps because that’s usually an outcome of case like this.”17 He also gave evidence that Mr Hollingworth who represented him in the proceedings told him “that [he] had a very good chance.”18 Mr Miller’s evidence was that Mr Hollingworth told him this “mainly because of the summary dismissal and the way it was handled.19 Mr Miller admitted that he did not obtain legal advice and that Mr Hollingworth was not legally qualified.20 His evidence was that Mr Hollingworth “works in the government and he’s done a few unfair dismissals and Fair Work applications before, but I think it was when it was the old system.”21
[21] Ms Stonier submitted that a person aggrieved by the termination of their employment must do more than “having a chat to your mate in the pub and having a quick look on the web site.” 22 Ms Stonier submitted that “he must seek advice.”
[22] Mr Burnett submitted that as a long term employee Mr Miller had a genuine feeling that he was unfairly treated. That feeling was reinforced by the information on the web site and by Mr Hollingworth. Mr Burnett submitted that I should have regard to the fact that in announcing the Fair Work legislation the then Deputy Prime Minister made it clear that the system was “more accessible to ordinary people and that lawyers would have a much lesser role to play.” 23
[23] It is clear from the Fair Work Act 2009 that lawyers do not have an automatic right to appear before Fair Work Australia. 24 The Explanatory Memorandum states that “persons dealing with Fair Work Australia would generally represent themselves. ....However in many cases legal or other professional representation should not be necessary for matters before FWA.25
[24] In response to my question as to what should be expected of an unrepresented applicant Ms Stonier submitted that an unrepresented applicant is not absolved from the need to get legal advice. She submitted that the Fair Work Australia website makes it clear that the information provided is “not in substitution for legal advice. If you ring the 1300 number, they’ll make it quite clear they always encourage you to seek legal advice.” 26
[25] At the time Mr Miller made his application the information he had was limited. He did not know how the employer’s case against him was made out. Further he formed the view that his conduct did not warrant summary dismissal particularly in light of his length of service. He also formed the view that his termination was unfair because he was not warned at the time of his meeting on 30 September 2009 that his employment was under threat. While Commissioner Whelan found that his conduct did warrant summary dismissal there were facts in dispute in the matter that if resolved in Mr Miller’s favour may have affected the outcome. As such I find that at the time of the application it was not clear to Mr Miller that his case must fail.
Section 611(2)(b) No reasonable prospects of success.
[26] I accept Ms Stonier’s submission that section 611(2)(b) can apply after the application is made. For example it may become reasonably apparent to the applicant after reading the submissions and evidence of the respondent that their application has no reasonable prospects of success.
[27] Vice President Lawler in Australian Broadcasting Commission v Scott Dickson 27 considered the test that then applied in section 170CJ(1) of the Workplace Relations Act 1996. Section 170CJ(1) at that time provided the Commission with the power to award costs if the Commission was satisfied that a person made an application in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application.
[28] Vice President Lawler said “a conclusion that an application had no reasonable prospects of success should only be reached with extreme caution and where the application is manifestly untenable or groundless.” 28 He further held correctly that the test “invokes the standard of a 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.”29 I accept that while the legislation has changed the statement of Vice President Lawler is applicable to section 611(2) (b).
[29] Ms Stonier submitted that even if Mr Miller made his application with reasonable cause upon receiving the letter from the Australian Hotels Association on 16 February 2010 or when he received the respondent’s outline of submissions and 14 witness statements on 15 February 2010 he should have realised, at that time, that his application had no reasonable prospects of success.
[30] The submissions and witness statements filed by the respondent in this matter set out the factual matters, as opposed to the law, that the respondent relied upon to justify the summary dismissal of Mr Miller. As set out above those facts were in part in dispute. Also in dispute was whether the conduct, that Mr Miller admitted to, warranted summary dismissal.
[31] The submissions filed by the respondent to the unfair dismissal application would not have added to Mr Miller’s understanding of the law in this area. This is not intended as a criticism of the submissions filed by the respondent. However a reading of those submissions do not support Ms Stonier’s submissions that, having read those submissions, Mr Miller was in a better position, than he was at the time of making his application, to judge that his application had no reasonable prospects of success.
[32] I also do not accept that that an employee is required to get legal advice to enable them to assess whether their application has reasonable prospects of success. In this case Mr Miller relied upon the advice of Mr Hollingworth who was not just a friend in a pub but someone who on the unchallenged evidence of Mr Miller had experience with unfair dismissal matters even if he was not a lawyer. Mr Miller also relied upon the advice given to employers about summary dismissal on the website. 30 It was not unreasonable for Mr Miller to have relied upon this advice.
[33] As a result I find that it would not have been reasonably apparent to Mr Miller that his application had no reasonable prospects of success.
[34] The decision to award costs is discretionary. In this case having regard to the evidence and submissions made at first instance and the submissions and evidence at the hearing of the costs application I have decided not to award costs in this matter and therefore dismiss the application.
COMMISSIONER
Appearances:
D Burnett of Counsel for Chris Miller.
S Stonier for Koornang Pty Ltd.
Hearing details:
2010.
Melbourne:
July 30.
1 [2010] FWA 3123
2 Outline of submissions in application for costs filed by Koornang Pty Ltd at [12]
3 Transcript PN 19
4 Exhibit M 1 at [10]
5 Transcript PN 115
6 Ibid PN 94 and 98
7 Ibid PN 206 and 216
8 (1997) IRCA 267 at page 2
9 (1992) 43 IR 157, at 264-265
10 [2010] FWA 3123 at [59]-[61]
11 Ibid at [52]
12 Ibid at [54]
13 Transcript PN 293
14 [2010] FWA 3123 at [64]
15 Transcript Pn242 and 249
16 Ibid PN 185
17 Ibid PN 187
18 Ibid PN 192
19 Ibid PN 193
20 Ibid PN 204-205
21 Ibid PN 219
22 Ibid PN 291
23 Ibid PN 280
24 Section 596
25 Fair Work Bill 2008 Explanatory Memorandum [2291-2292].
26 Transcript PN 291
27 [2007] AIRC 502
28 Ibid at [12]
29 Ibid at [13]
30 Transcript PN 185
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