[2018] FWC 7169

FAIR WORK COMMISSION

DECISION

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

Mr Craig Young
v
A & C Foster Pty Ltd T/A Heataire Services
(U2017/12035)

A & C Foster Pty Ltd T/A Heataire Services
v
Vasilaras & Co. Lawyers
(U2018/2252)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 NOVEMBER 2018

Application for costs against party and lawyer – Application dismissed.

[1] On 13 November 2017, Mr Craig Young made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment on 27 October 2017.

[2] Mr Young was represented by a lawyer, Mr Artemis Vasilaras, Principal of Vasilaras & Co. Lawyers (Vasilaras Lawyers).

[3] On 24 January 2018, Vasilaras Lawyers filed a Form F50 – Notice of Discontinuance (Notice of Discontinuance) on behalf of Mr Young.

[4] This decision concerns applications for costs that have been made against both Mr Young and Vasilaras Lawyers pursuant to sections 400A, 401 and 611 of the Act.

Preliminary Matter

[5] In the Form F2 – Unfair Dismissal Application (Form F2), Mr Young named ‘The Trustee for Foster Trading Trust T/A Heataire Services’ as the Respondent. Subsequently, in a Form F4 – Objection to Unfair Dismissal Application filed on 1 December 2017 (Form F4), it was indicated that the name of the business that was the Respondent was ‘A & C Foster Pty Ltd’ and its trading name was ‘Heataire Services’. In a witness statement filed and served on 21 December 2017 (Foster Statement) in accordance with directions of the Commission, it was stated by Mrs Christine Foster that she was the sole director of A & C Foster Pty Ltd, which in turn was trustee of the Foster Trading Trust and its business operated under the business name ‘Heataire Services’. Further, in the Form F6 - Application for Costs (Form F6) filed on 7 February 2018, the legal name of the business was recorded as ‘A & C Foster Pty Ltd’ and the trading name of the business was recorded as ‘Heataire Services’.

[6] I have therefore amended both the application for unfair dismissal remedy and the subsequent application for costs to this effect and I consider my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 1

[7] I shall hereinafter refer to the Respondent to the application for unfair dismissal remedy and Applicant for costs, being the same entity, as ‘Heataire’.

Procedural History

[8] In his Form F2, which was in two parts, Mr Young said that he commenced employment with Heataire in or around August 2013 and alleged that his dismissal on 27 October 2017 was not a genuine redundancy within the meaning of s.389 of the Act and lacked procedural fairness, before indicating he was seeking compensation for loss of earnings in lieu of reinstatement.

[9] Question 3.2 of the Form F2 asks “Why was the dismissal unfair?” and in answer to this, Mr Young stated:

“Background

1. The Applicant commenced employment for the Respondent in or around August 2013 as Service Engineer.

2. In or around June 2015, the Applicant suffered injury to his right elbow at work due to repetitive strain activity. The Applicant lodged a WorkCover claim, which was accepted by the Respondent’s insurer. The Applicant then took approximately 1 month off work and returned to work on light duties thereafter. During the time the Applicant returned to work on light duties, he received ongoing treatment and took time off to attend medical appointments.

3. In or around July 2017, the Respondent’s business owner, Mr Anthony Foster, passed away. In or around the same time, the Applicant was advised on several occasions that Mr Foster’s passing would not affect the Applicant’s employment and it was “business as usual”.

4. In or around early October 2017, the Applicant injured his left wrist at home and took sick leave.

5. On 27 October 2017, the Applicant’s employment was terminated by email. The Applicant was still on sick leave when his employment was terminated.

Section 389 of the Act / Genuine Redundancy?

6. To the Applicant’s knowledge, there were no changes to the operational requirements of the Respondent and his role is still required to be performed.

7. Further, the Respondent did not consult the Applicant before the decision to make his role redundant and/or did not consider him for redeployment, in circumstances where it would have been reasonable to do so.

8. In the event that the Fair Work Commission (“Commission”) finds that the Applicant’s redundancy was not genuine (which is submitted here), the Commission will then turn to s 387 of the Fair Work Act 2009 (Cth) (“the Act”) to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable. These matters are considered below.

Section 387 of the Act

Valid reason – s 387(a)

9. Section 387(a) of the Act requires the FWC to consider whether there was a valid reason for the dismissal, which is usually one relating to capacity or conduct.

10. For the reasons stated above, the Applicant submits that his redundancy was not genuine and/or did not fall within the meaning of “genuine redundancy”, as defined under s 389 of the Act.

11. Accordingly, the Applicant submits that the Respondent failed to provide him a valid reason for his dismissal…”

[10] In its Form F4 filed on 1 December 2017, Heataire raised two jurisdictional objections to Mr Young’s application for unfair dismissal remedy (the Application). It submitted that Mr Young’s dismissal was a case of genuine redundancy and that Heataire was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).

[11] Heataire asserted that upon the sale of its sole business, Heataire made Mr Young’s position redundant because the purchaser of the business had elected not to continue Mr Young’s employment. Heataire claimed it “made payment of all sums due” to Mr Young as a result of the termination of his employment and further asserted:

• the sale of the business constituted a substantial change to its operational requirements;

• it is irrelevant that the role performed by Mr Young may still be required in the purchaser’s business;

• from 27 October 2017, there was no work it could offer Mr Young;

• the Commission did not have jurisdiction to hear the matter as Mr Young’s termination was a genuine redundancy and it was a small business employer who followed the SBFDC; and

• the “application is vexatious, frivolous and an abuse of process and must be dismissed” and it would make application for costs under s.400A or s.401 of the Act.

[12] The matter was listed for conciliation by telephone at 9.15am on 7 December 2017. While a filenote dated 4 December 2017 on the Commission’s file indicated Heataire’s lawyer had indicated he would be discussing its jurisdictional objections at the conciliation, the filenote of the Commission’s conciliator at 9.50am on 7 December 2017 records that Heataire and its lawyer advised they did not wish to participate, requested the matter be referred to a hearing and again flagged an application for costs may be made.

[13] The Commission’s conciliator wrote a letter to the parties dated 7 December 2017, stating that the conciliation did not proceed and the matter would be listed for conference or hearing before a Commission member. Directions were also issued by the Commission on 7 December 2017. Subsequently amended, they directed Heataire to file material in support of its jurisdictional objections by no later than noon on 21 December 2017. Mr Young was directed to file material in support of his application by no later than noon on 11 January 2018 and Heataire had an opportunity to file reply final material.

[14] On 21 December 2017, Heataire filed its material in support of its jurisdictional objections in accordance with directions. This material included its submissions outlining the basis of its jurisdictional objections and the aforementioned witness statement of Mrs Christine Foster.

[15] Relevantly, Mrs Foster stated:

• Heataire had never operated any business other than the service business;

• She had had no active involvement in the Heataire business since her retirement from an administration and accounts role in 2007;

• Her husband, Mr Anthony Foster, was the sole director of Heataire before she was appointed sole director on 26 May 2017;

• Mr Foster passed away on 27 May 2017 and she thereafter received advice that she should sell the business;

• Pursuant to a Contract of Sale, she sold the business to Fossal Pty Ltd (ACN 620 558 787) (Fossal) on 27 October 2017.

• Fossal is a business owned by her son-in-law and one of his friends;

• The Contract of Sale was ‘an entirely arm’s length transaction’ and, in her opinion, Fossal paid market value;

• She has never been a director or shareholder of Fossal or had any involvement in it;

• Fossal elected to offer employment to five of Heataire’s eight employees. It elected not to offer employment to Mr Young and two other Heataire employees;

• As Heataire operated no other business, it did not have the capacity to offer employment to Mr Young or the two other Heataire employees;

• While she met with one of these three employees on 27 October 2017 at Heataire’s premises, Mr Young and the other employee were not there that day. Her understanding was that Mr Young was on sick leave at the time;

• Her solicitor attempted to make contact with Mr Young via telephone that day but was unsuccessful so he then sent Mr Young an email, explaining the sale of the business and advising he was to be redundant on 27 October 2017; and

• She was not in a position to direct Fossal as to whom an offer should be made when the sale completed and nor did she have any input into the offers of employment that were made.

[16] On 12 January 2018, following a request made by Vasilaras Lawyers, further amended directions were issued by the Commission. Mr Young was given until noon on 24 January 2018 to file material in support of his application. However, on 24 January 2018, aNotice of Discontinuance was filed on behalf of Mr Young. This notice recorded the reason for discontinuance was “to pursue an alternate application”.

[17] On 7 February 2018, Heataire filed the Form F6 seeking costs against both Mr Young and Vasilaras Lawyers.

Basis for costs application

[18] Heataire seeks costs against:

(a) Mr Young pursuant to ss.400A(1), 611(2)(a) and (b) of the Act; and

(b) Vasilaras Lawyers pursuant to s.401(1A) of the Act.

[19] On 15 March 2018, Heataire filed submissions in support of its application for costs.

Claim for costs against Mr Young

[20] Having regard to s.400A(1) of the Act, Heataire contends that Mr Young acted unreasonably in both the commencement and continuation of the matter.

[21] Heataire submits that having regard to the information available to Mr Young at the time of making his application, he should not have commenced the proceeding. It submits the commencement of the unfair dismissal application was an unreasonable act because:

a) Heataire operated a single business, Heataire Services, and this business was sold on 27 October 2017;

b) The Form F2 filed by Mr Young clearly indicates the reason for termination as a redundancy and no suggestion was made that there was a “sham” being undertaken or that the business had not been sold in accordance with the information given to Mr Young;

c) If there were questions as to whether Heataire had been sold, confirmation of the sale could have been easily ascertained by Mr Young;

d) If there were questions as to redeployment, confirmation of any other businesses being operated by Heataire could have been easily ascertained by Mr Young;

e) Accordingly, it can be deduced that Mr Young made an omission by failing to make inquiries to ascertain the legitimacy of the redundancy prior to the commencement of proceedings; and

f) It is unclear as to whether Mr Young had received any advice in relation to the prospects of success of his application as the objectively available facts were that there was a sale of a business and that Heataire was a small business employer.

[22] Further, Heataire submits that the continuation of this matter by Mr Young was an unreasonable act or omission as:

a) Heataire filed the Form F4 on 1 December 2017 outlining its jurisdictional objections to Mr Young’s application and at this time, it should have been reasonably apparent to Mr Young that his application had no prospect of success;

b) If, following the filing of the Form F4, there were further questions as to the sale of the business, the availability of work for Mr Young or the redundancy, those enquiries could have been made by Mr Young; and

c) Subsequently, further costs were incurred by Heataire between the filing of the Form F4 on 1 December 2017 to the filing of the Notice of Discontinuance on 24 January 2018.

d) Failure of Mr Young to file a Notice of Discontinuance shortly after Heataire’s filing of the Form F4 constituted an unreasonable act or omission in the continuation of a matter for the purposes of s.400A of the Act.

[23] It further submitted:

“The filing of the Notice of Discontinuance supports the conclusion that the application was either commenced without reasonable cause OR in recognition that there were no reasonable prospects of success. That conclusion is further enhanced by the failure of the applicant to file any material in response to the relevant directions.”

Claim for costs against Vasilaras Lawyers

[24] In its Form F6, Heataire stated that it was seeking costs against Vasilaras Lawyers because it was objectively demonstrable in relation to the sale of the business there was never any basis upon which the Commission had jurisdiction to hear the Application as it was a clear case of genuine redundancy. Further, Heataire stated it was a small business employer within the meaning of the Act and had complied with the SBFDC. Heataire asserted “it should have been reasonably apparent to a competent lawyer taking full instructions … that the commencement and continuation of the Application was vexatious and had no reasonable prospect of success” because these facts were addressed in the Form F4 and again at conciliation. Heataire submitted that while being advised by Vasilaras Lawyers, Mr Young commenced and continued his application to its expense and that as the Application was discontinued, it should be entitled to the payment of its costs under s.401 of the Act. Heataire attached a schedule of costs sought totalling $5,338.00.

[25] Heataire’s submissions on its costs applications filed on 15 March 2018 outlined the following:

a) It was clear from the termination letter and information in the possession of both Mr Young and Vasilaras Lawyers at the time of the filing of the Form F2 that Heataire’s business Heataire Services had been sold and the date of settlement was 27 October 2017;

b) Whether the role that had been performed by Mr Young was still required to be performed was irrelevant to the question of genuine redundancy in a sale of business scenario and this ought to have been known by Vasilaras Lawyers prior to the filing of the application. In the event that it was not, it was made clear in the Form F4.

c) Prior to lodging his application, Vasilaras Lawyers should have advised Mr Young that his application had “no reasonable prospect of success” given the information available objectively demonstrated a sale of business and therefore that Mr Young’s dismissal was a genuine redundancy.

d) Were there any questions of fact or issues of concern, there was opportunity to seek clarification from Heataire or its representative but this did not occur. Heataire further submitted “a representative is not permitted to fail to inquire or check relevant issues before commencing or continuing proceedings”.

e) The filing of the Form F2 necessarily set in train a process that caused Heataire to incur unnecessary legal costs. There were opportunities for Vasilaras Lawyers to provide advice to Mr Young to discontinue the proceedings at a point in time significantly prior to 21 [sic] January 2018 when the Notice of Discontinuance was filed.

f) It was unclear to Heataire, “the extent to which [Mr Young] was acting on the advice of [Vasilaras Lawyers] as to the commencement and continuation of the proceedings or whether [Vasilaras Lawyers] was acting on the instructions of [Mr Young] in that regard.”

[26] Heataire contends that in addition to its submissions, the factors outlined above in [21] and [22] are also relevant to the consideration of costs under s.401 of the Act.

Claim pursuant to s.611 of the Act

[27] Heataire submits that for similar reasons, the Application was commenced without reasonable cause (s.611(2)(a) of the Act) and it should have been reasonably apparent to Mr Young that the application had no reasonable prospects of success (s.611(2)(b) of the Act).

[28] It was further submitted that the filing of the Notice of Discontinuance supports the conclusion that the Application was either commenced without reasonable cause or in recognition that there were no reasonable prospects of success and the failure of Mr Young to file any material in response to the relevant directions further enhanced this conclusion.

[29] At this point, it is useful to outline Section 389 of the Act:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Submissions of Mr Young

[30] Mr Young submits that his dismissal was not a genuine redundancy as Heataire failed to adequately address all of the criteria under s.389 of the Act.

[31] In relation to s.389(1)(a) of the Act, Mr Young challenges the assertion of Mrs Foster that the business was “sold at arm’s length” because it was sold to her son-in-law for what she considered to be market value and suggests this may have been “considerably under commercial value.” Further, Mr Young submits that “there is no evidence before the Commission that [his] role is still not required to be performed by anyone” and asserts that prior to the sale of the business his role was advertised on seek.com.au, thereby being evidence that his role is still required. Mr Young further alleges he may not have been offered a role with the new business because of his pre-existing injury.

[32] Mr Young cited Amcor Limited v Construction, Forestry, Mining and Energy Union (Amcor) 2and posited that despite the business being sold, it could be argued that it was akin to a restructure, given that it was not sold at commercial arm’s length. Mr Young appeared to submit, applying Amcor, that the dismissal could not be considered a redundancy.

[33] In relation to s.389(1)(b) of the Act, Mr Young noted Heataire submitted it attempted to consult with him by contacting him by telephone on 27 October 2017, the day of the purported sale of the business and termination of his employment. As to this, Mr Young denies receiving any contact from Heataire and further submits that a phone call to advise him of his termination would not satisfy the meaning of consultation.

[34] Mr Young submits that Heataire failed to comply with the consultation clause in the Plumbing and Fire Sprinklers Award 2010 (the Award), which requires an employer to notify, discuss and provide a written outline of any major workplace changes that are due to effect employees as soon as practicable after a definite decision has been made.

[35] Mr Young submits that a major workplace change includes the proposed sale of the business. Mr Young suggested Mrs Foster’s witness statement confirmed Heataire’s definite decision to sell the business in the months prior to his termination.

[36] Mr Young submitted that if, in reply, Heataire asserted he was on sick leave at the relevant time when consultation should have occurred, Heataire could nonetheless have sent him a letter by email, in a similar manner to his termination letter, outlining the proposed major workplace change much earlier than the date of his termination.

[37] Mr Young submitted it was clear on Heataire’s submitted facts that:

“…it failed to comply with its consultation obligation under the Award and [Heataire’s] first jurisdictional objection was misconceived. If an employer was obligated to consult and fails to do so, there cannot be a genuine redundancy. Further, if the criteria under s 389 of the FW Act have not been satisfied, such as the failure to consult (as is the case here), this can be taken into account in the Commission’s consideration as to whether the dismissal was harsh, unjust or unreasonable under s 387(h).” (reference omitted)

[38] Finally, Mr Young submits that clause 18 of the Award requires an employer to make a redundancy payment. Mr Young submits that Heataire “has failed, refused or otherwise neglected” to pay his redundancy entitlement, despite its assertion that this is a case of genuine redundancy. He submits that whether his matter was conducted as an unfair dismissal or an underpayment claim, he would have been successful.

[39] Mr Young then asserted Heataire failed to satisfy the SBFDC on the basis that it failed to address the criteria or checklist relevant to a redundancy:

“3. Did you dismiss the employee because you didn’t require the person’s job to be done by anyone because of changes in the operational requirements of the business?...

If Yes

a. Did you comply with any requirements to consult about the redundancy in the modern award, enterprise agreement or other industrial instrument that applied to the employment?

b. Did you consider if the employee could have been redeployed in your business or the business of an associated entity?”

[40] Mr Young asserts that as Heataire clearly failed to comply with its consultation obligations under the Award, “it cannot be argued that the dismissal was consistent with the Code” and therefore, this jurisdictional objection was also misconceived.

[41] Mr Young posited that if the Commission found that his dismissal was not a case of genuine redundancy, it would then have considered the factors in s.387 of the Act to determine if the dismissal was harsh, unjust or unreasonable, submitting:

“[I]f the Commission found that the redundancy was not genuine, then there would be no valid reason. Further, and given [Mr Young] was terminated by email, it is submitted that there was no procedural fairness afforded to [him]. Accordingly, it is submitted that it was open for the Commission to find that the dismissal was unfair.”

[42] As to ss.400(A) and 611 of the Act, Mr Young submits that the Commission should not depart from its general rule that parties should bear their own costs.

[43] In response to Heataire’s assertion that commencing and continuing his application was an unreasonable act or omission, Mr Young submits that Heataire has not pointed to a specific act or omission, other than to state that he should have made reasonable enquiries as to the sale of the business and should not have continued the Application after the “incorrect” Form F4 was filed. He submits that had Heataire complied with its obligations under the consultation provisions of the Award, he could have made the necessary enquiries in the consultation period. Further, Mr Young submits that the Form F4 did not adequately address s.389 of the Act and thereby did not address his contention that his dismissal was not a case of genuine redundancy. Accordingly, he submits that “he was entitled to commence the Application and this did not constitute an unreasonable act or omission”.

[44] In response to Heataire’s assertion that his application was made without reasonable cause and/or had no reasonable prospect of success, Mr Young submits that as outlined above in [29] to [40] this assertion is misconceived, Heataire’s jurisdictional objections would have failed and it would be open to the Commission to find that his dismissal was unfair. In summary, Mr Young submits that:

“The conclusion that the Application “had no reasonable prospect of success” can only be reached in circumstances where the Application is manifestly untenable or groundless. However, as noted above, [Mr Young] submits that his dismissal was not a case of genuine redundancy because [Heataire] failed to comply with its obligation to consult under the Award and accordingly it cannot be argued that the Application was manifestly untenable or groundless.”

[45] Mr Young asserts that as there is no rule awarding party’s costs upon discontinuing an application, it is not appropriate to award costs in the circumstances where there has been no hearing of the merits of the dispute. In support of his contention, Mr Young referred to a number of Federal Court authorities, including Gribbles Pathology Pty Ltd v Health Insurance Commission & Ors 3, and the statement of Justice Finkelstein:

“For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made… [t]o do otherwise would require some prediction of the outcome of the case.” 4

[46] Mr Young’s submissions are finalised by stating that an order for costs should not be made by the Commission because:

“a. [Heataire’s] refusal to participate in the telephone conciliation was an unreasonable act or omission, which caused its own costs to be considerably increased by electing to proceed directly to a jurisdictional hearing;

b. [Heataire’s] rejection of [Mr Young’s] reasonable offer of settlement (i.e. his redundancy entitlement) was an unreasonable act or omission, which caused its own costs to be considerably increased by electing to proceed directly to a jurisdictional hearing;

c. [Heataire’s] unreasonableness and aggressiveness in defending the Application;

d. there is no evidence to support the proposition [Mr Young] commenced the Application vexatiously or for an ulterior purpose;

e. there is no evidence to support the proposition [Mr Young] commenced the Application without reasonable cause and at least some aspects of the Application could have succeeded if it proceeded to determination; and

f. there is no evidence to support the proposition [Mr Young] caused [Heataire] to incur costs because of an unreasonable act or omission in connection with the commencement or continuation of the Application.”

Submissions of Vasilaras Lawyers

[47] In support of its claim that parties should bear their own costs in this proceeding, Vasilaras Lawyers relies upon the facts and arguments as outlined in the submissions of Mr Young and the submitted the following in relation to s.401 of the Act.

Section 401(1A)(a) of the Act

[48] Vasilaras Lawyers relies on the approach it says was adopted by Vice President Catanzariti in Holmesby v Strathavon Resort Pty Ltd 5that awarding costs under s.401(1A)(a) of the Act requires the application of a two pronged test. Firstly, the representative must “encourage the applicant to start, continue or respond to the dispute” and secondly, it must be “reasonably apparent that the applicant had no reasonable prospect of success”.

[49] Vasilaras Lawyers submits that to “encourage” requires a “positive act, not merely an absence of discouragement” 6 and asserts that Heataire’s submissions failed to make any positive allegation that it acted in a manner as to encourage Mr Young to commence or continue his application. It posits that Heataire’s submissions simply state that it should have advised Mr Young that his application had no reasonable prospect of success, which it denies. Further, it asserts that Heataire concedes that “it is unclear to [Heataire], the extent to which [Mr Young] was acting on the advice of [Vasilaras Lawyers] as to the commencement and continuation of the proceedings”. It submits that accordingly, there has been no evidence submitted by Heataire to support its claim under s.401(1A)(a) of the Act that Vasilaras Lawyers encouraged Mr Young to commence or continue his application, and that its claim is thereby “doomed to fail at the outset”.

[50] With regard to the second element of the test in s.401(1A)(a), Vasilaras Lawyers relies upon the proposition Commissioner Whelan outlined in Darcy v Megan Fitzgerald & Associates Pty Ltd - re Application for costs:

“great care should be exercised in coming to a conclusion that a party either instituted proceedings ‘without reasonable cause’ or in circumstances where it should have been reasonably apparent that the application had ‘no reasonable prospect of success’ where the facts of the case and the applicable law have not been tested in a hearing”. 7

[51] Vasilaras Lawyers asserts that as the application was discontinued before a hearing and the merits remain undetermined, it is not possible for the Commission or Heataire to make the determination that the application had no reasonable prospect of success. Furthermore, it is argued that as addressed in the submissions of Mr Young, “at least some aspects of the unfair dismissal application could have succeeded if tried”.

Section 401(1A)(b) of the Act

[52] With regard to s.401(1A)(b) of the Act, Vasilaras Lawyers submits that there had been no submission by Heataire that supports the contention that it made an unreasonable act or omission in connection with the conduct or continuation of the dispute. In support of this submission, it cites the Explanatory Memorandum to the Fair Work Amendment Bill 2012 8 which provides that unreasonableness will depend on the circumstances and it was parliament’s intention that costs be ordered only where there is clear evidence of unreasonable conduct. Vasilaras Lawyers submits that due to the lack of evidence provided by Heataire, its application for costs against Vasilaras Lawyers should be dismissed pursuant to s.587 of the Act on the basis that it has no reasonable prospect of success.

[53] Having cited a range of decisions of the Commission, Vasilaras Lawyers finalised its submissions by stating that an order for costs should not be made by the Commission because:

“a. there is no evidence to support the proposition [Vasilaras Lawyers] encouraged [Mr Young] to start and/or continue his unfair dismissal application;

b. there is no evidence to support the proposition the unfair dismissal application had no reasonable prospect of success, as the merits of the unfair dismissal application have not been tested and at least some aspects could have succeeded (as submitted in the Applicant’s Outline of Submissions); and

c. there is no evidence to support the view [Vasilaras Lawyers] caused [Heataire] to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the unfair dismissal application.”

Submissions in Reply of Heataire

[54] At the outset of its submissions in reply, Heataire sought to highlight the absence of any witness statements filed in response to its application for costs and stated “objection is taken to matters that are properly the subject of witness statements and evidence from being included under the guise of submissions”. Heataire argued that many of the factual allegations contained in the submissions were not included in Mr Young’s Form F2.

[55] Heataire further asserted there was material contained in the submissions that is “irrelevant or not appropriately included”. As an example, Heataire rejects the assertion that it refused to participate in the conciliation conference and believes that the Commission's records will reflect a “lack of veracity in that claim”. It concluded that it is “open to the Commission to draw appropriate adverse inferences and to reject matters that should have properly been the subject of witness statements and or supportive documentation”.

[56] Heataire submits that for the Commission to grant an application for costs:

“[it] is not a requirement nor will it be expected that any applicant or their representative will admit to commencing proceedings where there is little prospect of success or where they have an ulterior motive. Inferences are able to be drawn from the surrounding circumstances including the obligations and duties incumbent upon lawyers and paid agents.”

[57] Heataire suggests the comments of Commissioner Bissett in relation to the meaning of ‘unreasonable’ in Hall v Hannanprint, 9 are apposite and highlights the Commissioner’s reference to the decision of Justice Katzman at [26] in Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited (No 2)10:

“While the Court should not rush to the conclusion that a costs order should be made, neither should it baulk at the prospect if the circumstances warrant it. No party should assume that any old allegation may be made in proceedings arising under the FW Act because it is unlikely to be penalised in costs.”

[58] Continuing its reliance on Hall v Hannanprint, Heataire submitted Commissioner Bissett then adopted observations from Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates 11 and highlighted the following paragraphs:

“[80] … From our own experience we can say that there is a certain incidence of unfair dismissal and similar applications filed in the Commission that are unmeritorious and appear to have been commenced in the expectation that a modest settlement can be achieved because it is cheaper for the employer to pay what is known as “go away” money than to defend and defeat the claim. Section 401 ought be available when the case being pursued by the representative has no reasonable prospects of success.

[81] It is open to a member of the Tribunal, in an appropriate case, to draw an inference from the particular circumstances, that the representative, if acting reasonably, must have appreciated that the case did not have reasonable prospects of success such that the representative was obliged to advise the client to withdraw his application and cease acting if that advice was not accepted.”

[59] Heataire submits that the reason for Mr Young filing a Notice of Discontinuance has not been explained, noting that it was not due to reaching a settlement in the matter. It believes that the discontinuance was “recognition that there was no merit in the proceeding that had been commenced and that no “go-away” money was to be paid”. Whilst it maintains the contention that the application should not have been commenced, it further noted that it could have been discontinued on numerous occasions prior to 24 January 2018. In particular, Heataire notes that the application could have been discontinued after the filing of the Form F4 or earlier, prior to it being “obliged to expend time, cost and effort complying with … directions”.

[60] Heataire further submits that it is “untenable” to suggest that the filing of the application and the obligation to comply with directions did not directly cause significant costs to be incurred by it and that significant costs were incurred at each procedural stage it was required to attend to.

[61] Heataire submits that the focus of Mr Young and Vasilaras Lawyers on the alleged merits of the application are not relevant to the application and that s.396 of the Act sets out the various matters for consideration prior to the determination of the merits:

“396 Initial matters to be considered before merits

(1) The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[62] Heataire submits that ASIC v Kyriackou 12 and cases cited therein, “counsel against a court/[C]ommission or tribunal embarking upon a de facto hearing on the merits in order to determine issues related to costs applications”. It submits that the Act does not place any impediment on awarding costs “unless or until there has been a hearing on the merits of the matter” and that any contrary suggestion “would be directly counter to the substance, effect and purpose of the relevant costs provisions”. Heataire submits that were the merits of the application to be considered, “the plainly demonstrable facts including that the business was sold, [Heataire] no longer operates any business and that contact was sought to be made with [Mr Young]” would make it unlikely that the Commission would make a finding of unfair dismissal.

[63] Heataire also cited the cases of Flower & Hart (a firm) v White Industries (Qld) Pty Ltd 13 and Williams v Spautz14 in support of its assertion:

“To the extent to which it may be considered that there were other matters relevant to the employment of [Mr Young] being pursued, if as seems to be suggested, there was a claim for anything other than an unfair dismissal, then such would constitute and [sic] abuse of process”.

[64] Heataire submits that by commencing and continuing to act, from the filing of the original application to the filing of the Notice of Discontinuance, Vasilaras Lawyers has bound its actions to those of Mr Young. Heataire submit that “lawyers and paid agents have a paramount duty to the commission ahead of their client” 15 and “the only reasonable inferences to be drawn from the discontinuance, in the absence of any evidence to the contrary, is that the matter was commenced and continued with no reasonable prospect of success.”

[65] Heataire again asserted that it is safe to infer that “go away” money was being sought and this is “not an acceptable approach and [it] should be paid the costs of responding to the application and of the costs applications”.

Applications for Costs

[66] Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. Sections 611(2), 400A and 401 of the Act operate as exceptions to this general rule and allow costs to be awarded in specific circumstances.

Costs Claim against Mr Young - Relevant Provisions

[67] Section 611 provides:

“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.”

(my underlining)

[68] Section 400A of the Act provides:

“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.”

Consideration – s.611 of the Act

[69] The determination of the s.611(2) of the Act part of the Costs Application requires me to consider the following questions:

1) Did Mr Young make his unfair dismissal application vexatiously or without reasonable cause (s.611(2)(a))?

2) Should it have been reasonably apparent to Mr Young that his unfair dismissal application had no reasonable prospects of success (s.611(2)(b))?

Was Mr Young’s unfair dismissal application made vexatiously or without reasonable cause (s.611(2)(a))?

[70] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (Church), 16the Full Bench considered the approach to be taken in determining whether proceedings have been instituted vexatiously or without reasonable cause and stated:

“[28] We now turn to the exceptions to the general rule expressed in s.611(1) and the meaning of the expression ‘vexatiously or without reasonable cause’.

[29] The question of whether an application was made ‘vexatiously’ looks to the motive of the applicant in making the application. It is an alternative ground to the ground that the application was made ‘without reasonable cause’ and may apply where there is a reasonable basis for making the application. In Nilsen v Loyal Orange Trust (Nilsen) North J observed that this context requires the concept of vexatiousness to be narrowly construed. His Honour went on to state that an application will be made vexatiously ‘where the predominant purpose ....is to harass or embarrass the other party, or to gain a collateral advantage’. Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said:

“The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously or unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’.”

[30] We now turn to the expression ‘without reasonable cause’. A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, Wilcox J put it this way:

“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.” ” (references omitted)

[71] In Keep v Performance Automobiles Pty Ltd (Keep), 17 the Full Bench summarised the principles relevant to when an application is made without reasonable cause as follows:

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (Church). 18 Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case. 19

(ii) A party cannot be said to have made an application “without reasonable cause” within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. 20

(iii) One way of testing whether a proceeding is instituted “without reasonable cause” is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. 21

(iv) The test imposed by the expression “without reasonable cause” is similar to that adopted for summary judgment, that is, “so obviously untenable that it cannot possibly succeed”, “manifestly groundless” or “discloses a case which the Court is satisfied cannot succeed.” 22 (references from Church included)

[72] It was not argued before me that Mr Young made his unfair dismissal application vexatiously. Regardless, the facts of this case are not such that I am satisfied the predominant purpose of Mr Young was to harass or embarrass Heataire, or to gain a collateral advantage and nor am I satisfied the unfair dismissal application was seriously or unfairly burdensome, prejudicial or damaging.

[73] As to whether Mr Young made his unfair dismissal application “without reasonable cause”, I have considered whether upon the facts known to Mr Young at the time of instituting the Application, there was no substantial prospect of success and I am not persuaded that on Mr Young’s own version of the facts, it was clear to him that the proceeding would fail and nor am I persuaded that his case was so obviously untenable that it could not possibly succeed. This is because the Form F2 documents he filed at the time he made the Application, make clear Mr Young relied on the fact that he had not been consulted in relation to Heataire’s decision to terminate his employment on the basis of redundancy.

[74] As is outlined at paragraph [9] above, the Form F2 documentation indicates the considerations driving Mr Young at the time he made the Application included:

• He had initially been advised that notwithstanding the passing of Mr Anthony Foster his employment would be unaffected and it was “business as usual.”

• Heataire did not consult him before the decision to make his role redundant and nor did it consider him for redeployment.

• His belief his redundancy was not genuine and/or did not fall within the meaning of “genuine redundancy”, as defined under s 389 of the Act.

• There was no valid reason for his dismissal.

[75] As the Application progressed, it emerged there really is no dispute that Mr Young was not consulted about his redundancy and at best, Heataire attempted to consult him at the time it intended to terminate his employment. This leads to the conclusion it was not open to Heataire to argue the termination was a genuine redundancy within the meaning of s.389 of the Act or argue that Mr Young’s dismissal was consistent with the SBFDC.

[76] Heataire may ultimately have sought to argue in its defence of the Application that Mr Young was nonetheless made redundant and thus deciding the Application may ultimately have involved consideration of Mr Young’s circumstances under s.387(h) of the Act. While Mr Young’s apparent redundancy may on the one hand have weighed against a finding that the termination of his employment was unjust or unreasonable, that Mr Young received no warning that it was a possibility or going to come into effect prior to receiving the letter terminating his employment, or a redundancy payment, suggests there was a basis for him to submit his dismissal was nonetheless harsh.

[77] Accordingly, I am not satisfied that Mr Young made the Application without reasonable cause.

Should it have been reasonably apparent to Mr Young that his unfair dismissal application had no reasonable prospects of success (s.611(2)(b))?

[78] As to s.611(2)(b), the issue I have to determine is whether I am satisfied that in all the circumstances it should have been reasonably apparent to Mr Young that his claim that he had been unfairly dismissed had no reasonable prospect of success.

[79] In Keep, 23 the Full Bench also summarised the principles relevant to s.611(2)(b) of the Act:

“[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that “it should have been reasonably apparent” to that person that their application had ‘no reasonable prospect of success’. The expression “should have been reasonably apparent” in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.”

[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had “no reasonable prospects of success”. In Deane v Paper Australia Pty Ltd 24 a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;

“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”. 25

[80] More recently, when considering the meaning of s.611(2)(b), despite referencing it as s.611(1)(b), the Full Bench in Health Services Union – Victoria No.1 Branch v Sanli 26stated:

“[113] The observations of the High Court in Spencer v The Commonwealth 27 as to the meaning of the expression ‘no reasonable prospect’ in s.31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), are apposite to the matter before us:

‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.’ 28

[114] Section 31A of the Federal Court Act is a power to enter summary judgment and accordingly is not directly relevant to the matter before us. However, the High Court’s observation (in Spencer) that full weight must be given to the expression as a whole and that descriptors such as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ do not provide a sufficient chart of the metes and bounds of the power, are also applicable to s.611(1)(b).”

[81] Having regard to these authorities, I am required to exercise caution in determining whether to exercise the power to order costs pursuant to s.611(2)(b) of the Act and consider whether it would have been apparent to a reasonable person that Mr Young’s application “had no reasonable prospect of success”, giving full weight to this expression as a whole.

[82] I am not satisfied that it should have been reasonably apparent to Mr Young that his application had no reasonable prospects of success. As outlined in paragraph [73] above, at the time he made the Application, Mr Young relied on the fact that he had not been consulted in relation to Heataire’s decision to terminate his employment on the basis of redundancy.

[83] However, this does not necessarily end the consideration under s.611(2)(b). I agree with the views Deputy President Gostencnik expressed in Galea v Billabong Custom Caravans Pty Ltd T/A Billabong Custom Caravans, 29 that an assessment of whether the circumstance described in s.611(2)(b) existed is not limited to the time at which a person makes an application and “[k]nowledge gained by a person during the course of a proceeding and after making an application or response might lead to a conclusion that it should have been reasonably apparent to a person that the person’s application or response had no reasonable prospect of success.”30

[84] As it turns out, the opposite has occurred in this case because during the course of the proceeding, it became apparent to Mr Young that at its highest, the defence of Heataire was that it merely unsuccessfully attempted to make contact with Mr Young about its decision to terminate his employment on the basis of redundancy just prior to sending him the letter terminating his employment by email.

[85] In light of these considerations, and those I outlined in paragraphs [75] and [76] above, I am not satisfied that it should have been reasonably apparent to Mr Young that his application had no reasonable prospects of success during the course of the proceeding.

Consideration – s.400A of the Act

[86] Section 400A was inserted into the Act by virtue of the Fair Work Amendment Act 2012. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 states:

“Parts 3 and 4 of Schedule 6 to the Bill enhance the FWC’s ability to order costs against a party and/or their representative in unfair dismissal matters. The new ‘party costs’ provision applies where a party to an unfair dismissal matter (either an employee or employer) has caused the other party to incur costs by an unreasonable act or omission. Under section 401 of the FW Act, lawyers and paid agents may currently be exposed to costs orders if FWA has granted permission for a person to be represented in an unfair dismissal matter. The Bill will provide for the FWC to order costs against a lawyer or paid agent whether or not the FWC has given permission for a person to be represented.

The amendments strike a balance between the need to protect workers from unfair dismissal, and to provide a deterrent against unreasonable conduct during proceedings. The amendments will enable costs orders to be more easily made in the case of unreasonable conduct but will not prevent genuine claims from being pursued. They will discourage frivolous and speculative claims and assist in the efficient resolution of claims by encouraging all parties to approach proceedings in a reasonable manner. These measures are reasonable and proportionate to address the time and expense that an unreasonable conduct by a participant and/or their representative may cause another party to incur” 31 (my emphasis).

and

“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.” 32

[87] The Full Bench of the Commission said in Gugiatti v SolarisCare Foundation Ltd 33(Gugiatti) that s.400A of the Act “is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.”34

[88] The Full Bench also stated:

“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.” 35

[89] Section 400A of the Act provides that costs may be awarded to Heataire if I am satisfied that the costs it claims were incurred as a result of an unreasonable act or omission of Mr Young in connection with the conduct or continuation of the unfair dismissal application. However, even if I am satisfied that the relevant circumstances exist, I am not obliged to order costs. It is a discretionary decision. The legislative intent behind s.400A was that the power to award costs is to be exercised only in clear cases of unreasonable conduct.

[90] Adopting the approach to s.400A of the Act in Gugiatti, I am not persuaded that Mr Young engaged in unreasonable acts or omissions in connection with the “conduct or continuation” of the Application after it had been instituted. Upon Heataire’s filing of the Form F4, it became apparent that its jurisdictional objections were that the dismissal was a genuine redundancy within the meaning of s.389 of the Act and that Mr Young’s dismissal was consistent with the SBFDC. However, there was no assertion in the Form F4 that Heataire had complied with the obligation in the Award to consult and nor was it asserted that Heataire had addressed the criteria/checklist relevant to a redundancy situation in the SBFDC at Question 3. 36

[91] Accordingly, on the basis that he had not been consulted in accordance with the obligations in either the consultation clause in the Award or the SBFDC, I am not satisfied Mr Young acted unreasonably in continuing with the Application or that him not discontinuing the Application at that time was an unreasonable omission. I consider it not unreasonable at this point for Mr Young to have waited for the material Heataire would be (and was) required to file and serve in support of its jurisdictional objections.

Costs Claim against Vasilaras Lawyers – s.401 of the Act

[92] Section 401 of the Act applies where an unfair dismissal application has been made, a person has engaged a lawyer or paid agent to represent him or her and the person is required to seek the Commission’s permission to be represented by the representative. It makes a lawyer or paid agent subject to the possibility of adverse costs orders even if they are not granted or do not seek permission to represent the person. 37

[93] Section 401(1A) of the Act provides as follows:

“401(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.”

[94] In Rohan Veal v Sundance Marine Pty Ltd 38, a Full Bench of the Commission stated (at [15]):

“… because the section applies to the actions taken or not taken by a legal representative of a party it seems to us to follow that these actions or omissions by legally qualified and trained people should be measured against a higher standard than that which would apply to an unrepresented party, by virtue of the representative’s training and expertise.”

[95] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 provided as an example of where the Commission may award costs against a representative, where the representative knows his or her client’s unfair dismissal claim is dishonest or without foundation but still actively encourages them to proceed with the claim to try and extract a remedy such as a financial settlement from the employer. 39

[96] I am not persuaded on the facts of this case that I should make an order for costs against Vasilaras Lawyers.

[97] Firstly, I am not satisfied Vasilaras Lawyers caused costs to be incurred by Heataire because it encouraged Mr Young to start and continue the Application when it should have been reasonably apparent that he had no reasonable prospect of success in the matter (s.401(1A)(a)), having regard to the matters I have outlined above at [73] and [75]-[76]).

[98] Secondly, I am not satisfied Vasilaras Lawyers caused costs to be incurred by Heataire because of an unreasonable act or omission of it in connection with the conduct or continuation of the matter (s.401(1A)(b)), having regard to the matters I have outlined above at [90] –[91].

[99] As I stated earlier, I consider it is possible that Mr Young may have ultimately succeeded in persuading the Commission that his dismissal was harsh and it is not to the point to speculate as to what he may or may not have been awarded in terms of compensation had he been successful or submit that an alternative claim should have been pursued by him.

Conclusion

[100] For the reasons outlined above, I am not satisfied that I should make an order for costs against Mr Young pursuant to either s.611 or s.400A of the Act and nor am I satisfied that I should make an order for costs against Vasilaras Lawyers pursuant to s.401(1A) of the Act.

[101] Accordingly, Heataire’s Application for Costs filed on 7 February 2018, seeking costs against both Mr Young and Vasilaras Lawyers, is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (unreported, Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at [28].

2 (2005) 222 CLR 241.

3 (1997) 80 FCR 284.

4 Ibid at 287.

5 [2015] FWC 2754.

6 Khammaneechan v Nanakhon Pty Ltd[2011] FWA 651 (unreported, Bartel DP, 31 January 2011) at [22].

7 [2009] FWA 1547 (8 December 2009) at [28].

8 See [171] and [234].

9 Hall v Hannanprint Pty Ltd T/A Hannanprint[2014] FWC 2731.

10 [2013] FCA 362.

11 [2014] FWCFB 1276.

12 [2008] FCA 1860.

13 [1999] FCA 773 (11 June 1999) at [59] and [64].

14 (1992) 174 CLR 509.

15 E. Allen and Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174 at [48].

16 [2014] FWCFB 810.

17 [2015] FWCFB 1956.

18 [2014] FWCFB 810.

19 Ibid at [27].

20 Ibid at [30].

21 See Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, cited with approval in Church at [30].

22 Heidt v Chrysler Australia Limited (1976) 26 FLR 257 at [272 - 273]; Geneff v Peterson (1986) 19 IR 40 at [87-88]; Hatchett v Bowater Tutt Industries Pty Ltd (1991) 28 FCR 324 at 327; Re Ross and others, Ex Parte Crozier (2001) 111 IR 282 at [12]; Re Australian Education Union (NT Branch) (No.2) [2011] FCA 728 at [30]. Also see Wright v Australian Customs Service, PR926115, 23 December 2002 per Giudice J, Williams SDP and Foggo C and Church at [33].

23 [2015] FWCFB 1956.

24 PR932454, 6 June 2003.

25 Ibid at [8], also see Baker v Salva Resources Pty Ltd[2011] FWAFB 4014 at [10]; and Metecno Pty Ltd T/A Bondor v Cameron [2014] FWCFB 2128 at [16].

26 [2018] FWCFB 745.

27 (2010) 241 CLR 118.

28 Ibid at [59]-[60] per Hayne, Crennan, Kiefel and Bell JJ.

29 [2017] FWC 2943.

30 Ibid at [26].

31 Explanatory Memorandum to the Fair Work Amendment Bill 2012, page 7.

32 Ibid at page 37.

33 [2016] FWCFB 2478.

34 Ibid at [61].

35 Ibid at [43].

36 See above at paragraph [39].

37 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at paragraph [180].

38 [2013] FWCFB 8960.

39 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at paragraph [184].

Mr Craig Young v A & C Foster Pty Ltd T/A Heataire Services