Mr Daniel Cole v PQ Australia Pty Ltd T/A PQ Australia

[2016] FWC 355

[2016] FWC 355

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Cole
v
PQ Australia Pty Ltd T/A PQ Australia
(U2015/10896)

COMMISSIONER ROE MELBOURNE, 18 JANUARY 2016

Application for relief from unfair dismissal – Procedural Issues.

[1] There are three preliminary matters which require decision in this case. An application by the Respondent to be represented by a lawyer, an application by the Respondent that the unfair dismissal application be dismissed because the Applicant has made an application to the Victorian Equal Opportunity and Human Rights Commission and an application by the Respondent for security for costs.

Legal representation

[2] In respect to representation I have considered the written submissions of the parties. The Applicant is not represented and the Respondent seeks to be represented. The Applicant submits that Mr Doran, Vice President Human Resources for the Respondent could provide representation. However, the Respondent does not accept this submission and argues that there is no dedicated human resources specialist employed by the company in Australia or available to represent it at the hearing. MR Doran is based in Philadelphia US. I accept the submission of the Respondent that the most senior employee of the Respondent in Australia with direct involvement in the case is Mr Rice. I acknowledge that some inequity is created for the Applicant if the Respondent is represented but I am satisfied that:

● The most senior employee of the Respondent, Mr Rice would be the person who would have carriage of the Respondent’s case absent the grant of representation.
● There is an intervention order preventing the Applicant from being within 5 meters of Mr Rice.
● Mr Rice is a key witness for the Respondent in the case.
● The Commission will have to make arrangements for Mr Rice to be in a separate court room to the Applicant during the proceedings and provide a video link.

[3] In these circumstances I am satisfied that the conduct of the proceedings will be more efficient if I allow the Respondent to be represented by a lawyer. Permission is therefore granted.

Multiple applications

[4] In respect to the issue of the impact of the Application made by the Applicant to the Victorian Equal Opportunity and Human Rights Commission I have considered the submission of the Respondent and I am satisfied that:

● The Application to the Victorian Equal Opportunity and Human Rights Commission was made after the unfair dismissal application was made. This is clear from the Victorian Equal Opportunity and Human Rights Commission application which specifically refers to U2015/10896.
● The subject matter of the application to the Victorian Equal Opportunity and Human Rights Commission concerns a number of a matters which allegedly occurred during the employment including matters relating to the alleged dismissal.
● The Applicant is not, pursuant to Section 725 and Section 732 able to make the application to Victorian Equal Opportunity and Human Rights Commission to the extent that the application is in relation to the dismissal.

[5] The application to the Victorian Equal Opportunity and Human Rights Commission cannot be made, however, this does not render the unfair dismissal application which was previously and properly made invalid. There is no basis to dismiss the unfair dismissal application because another invalid application has been made. In his submission the Applicant states that the purpose of his Victorian application is to address bullying allegations and not the dismissal. The correct course of action is for the Applicant to withdraw those aspects of his Victorian Equal Opportunity and Human Rights Commission complaint that are in relation to the dismissal or if the Applicant fails to do this for the Respondent to make representations to the Victorian Equal Opportunity and Human Rights Commission that pursuant to Section 732 of the Fair Work Act 2009 (the Act) the Victorian Equal Opportunity and Human Rights Commission application must be dismissed.

Security for costs

[6] In respect to the issue of security for costs pursuant to Section 404A of the Act I have considered the written submission of the Respondent. The principles for dealing with such applications have been set out by the Full Bench in Zordana v St John Ambulance (Western Australia) Inc 1 as follows:  

“[34] Commissioner Asbury, as she then was, outlined the principles to be considered in assessing whether to grant an order for security for costs in Harris v Home Theatre Group t/as Home Theatre Group:

“[7] Principles relevant to the making of orders for security of costs can be summarised as follows. There is no absolute rule to control the exercise of the discretion to order security for costs, and what should be done in each case depends on the circumstances of the case with the governing consideration being what is required by the justice of the matter. The making of an order for security for costs should not be oppressive in that it would stifle a reasonably arguable claim.

[8] The financial position of the party against whom the order is sought, will be relevant in a number of circumstances. There is no absolute rule that impecuniosity of a party will entitle its opponent to an order for security for costs. There is also a general rule that poverty should not be a bar to a person prosecuting a claim at first instance. On appeal, the question of security is to be determined differently on the basis that the appellant has had his or her day in court, and should not be given a “free hit”, particularly in circumstances where the costs of a proceeding below had not been paid by the appellant.

[9] In cases where the impecuniosity of the party against whom the order for security for costs is sought, it is relevant that the impecuniosity is itself a matter which the litigation may help to cure or arises from the conduct the party is complaining of. In such circumstances the party against whom the order is sought should not be shut out of litigation.

[10] The prospects of success and the strength of the case of the party resisting the order is relevant. In Merribee (Supra) Kirby J said (citations omitted):

“Another consideration that has sometimes been judged to be relevant is the strength of the case of the party resisting an order that it provide security for costs and evaluation (necessarily tentative) of its prospects of success. Thus, the fact that a party has secured special leave to argue its case on appeal has been thought a relevant consideration in some circumstances. Similarly, if a proceeding appeared hopeless and such as was bound to fail, the lack of apparent merit in a party’s case might be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent. Such a consideration would need to be exercised with care, given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security of costs. Furthermore, if a party asserts that its opponent’s proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation.”

[11] In relation to costs, it is relevant that the nature of a proceeding is such that, even if successful, an order for costs might not be made or might be limited. The inability of a party to meet the costs of an unsuccessful proceeding, or the risk that a cost order will not be satisfied is also relevant to the exercise of the discretion. Other related considerations are that a party is, or is likely to be absent from the jurisdiction when a decision is made and has no, or few assets within the jurisdiction.

[12] There may also be aspects of public interest which are relevant to the exercise of the discretion to make an order for security for costs, such as an application raising matters of general public importance, quite apart from the interests of the parties. Other matters that have been considered relevant are that a hearing of the proceedings is close at hand, or the party seeking the order has delayed its application for such an order. It may also be relevant that the parties, or some of them, are legally aided.
(original references omitted)”

[35] We agree with the summary provided by her Honour. We further note that costs orders in this jurisdiction are extraordinary, and security for costs orders even more so. This is because the Act reflects the longstanding principle that costs will not be awarded against parties in industrial proceedings, other than in exceptional circumstances. Costs are limited to circumstances where the proceedings have been commenced vexatiously, without reasonable cause, or in circumstances where it should have been reasonably apparent that the application had no reasonable prospect of success. It should be noted that a proceeding is not to be classed as being instituted without reasonable cause simply because it fails, but rather in circumstances where the applicant’s own version of the facts, it is clear that the proceeding must fail.

[36] Accordingly, the Commission should award security for costs only in the rarest of circumstances, once the Commission has balanced the merits of the application, the financial position of the parties, and what is just in the circumstances.”

[7] There is no basis for a conclusion at this stage that the Applicant in this case has made the application vexatiously or without reasonable cause. The Respondent says that the Applicant admits that he resigned but the facts surrounding this are bitterly contested. In the circumstances of this case there is a dismissal letter and there is also a resignation. In such circumstances it would be impossible to conclude prior to hearing the case that the matter has been brought vexatiously or that it should have been reasonably apparent that the application had no reasonable prospect of success.

[8] In the Fair Work Commission it is common for parties to not be represented. In these circumstances parties often have difficulty articulating their case in written materials provided prior to the hearing of the matter. It would be completely contrary to the objects of the Act and Part 3-2 (Section 381) to draw strong conclusions about the Applicant’s case on the basis of the inadequacy of written materials provided prior to the hearing. This is precisely what the Respondent is asking me to do. For example, the Respondent submits that: “the Applicant has not filed any materials that show that he has any developed or comprehensive submissions or any available evidence that would suggest that he has a sustainable case”.  There is no basis to conclude at this stage that it would have been reasonably apparent to the Applicant that the case has no reasonable prospect of success.

[9] The Respondent complains of the Applicant’s conduct in respect to alleged non-attendance at the telephone conciliation conference. The Applicant disputes the facts surrounding that matter. The Applicant has produced correspondence which shows that at a late stage he advised that he needed to be contacted on a different telephone number and the Fair Work Commission acknowledged the email and advised that the records had been updated. The Applicant also produced correspondence from the Fair Work Commission stating that the conciliation conference had not proceeded due to the Respondent deciding not to participate. I am not satisfied that there is a basis for any adverse finding against the Applicant in respect to the conciliation conference. The Respondent also complains about the Applicant’s failure to conclude the settlement which was reached with the assistance of Commissioner Wilson. The Applicant says that the written terms of settlement did not reflect the expected and accepted settlement and he therefore declined to sign the terms within two days of the conference. On its face there is nothing unreasonable or unusual about that behaviour. In the face of contested facts I am not able to conclude that there have been unreasonable acts by the Applicant.

[10] Given that the Applicant has been unemployed since the alleged dismissal it is reasonable to assume that he is impecunious and that this is because of the loss of his employment. An order for security for costs would discourage the Applicant from pursuing his unfair dismissal application. The frustration of the applicant’s ability to pursue his case is a matter which should be given considerable weight.

[11] There is nothing extraordinary in a situation where one of the matters in dispute in an unfair dismissal hearing is whether or not there was a dismissal. The existence of a resignation is not of itself sufficient to conclude that there was no dismissal. The Act specifically contemplates constructive dismissal. It is also possible that where there is both a termination letter and a resignation that the termination letter is taken to be the operative instrument depending upon the circumstances.

[12] There is nothing extraordinary about a situation where the Applicant has failed to adequately articulate their case in written materials provided prior to the hearing of the matter.

[13] As the Full Bench observed: “costs orders in this jurisdiction are extraordinary, and security for costs orders even more so.” This is not one of those extraordinary circumstances where security of costs should be required. The application for security for costs is dismissed.

COMMISSIONER

 1   [2013] FWCFB 8255.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR576222>