Mr Frank Femia v Prima Pizza and Pasta

[2015] FWC 3780

[2015] FWC 3780

FAIR WORK COMMISSION

DECISION

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

Mr Frank Femia
v
Prima Pizza and Pasta
(U2013/17374)

COMMISSIONER CLOGHAN PERTH, 4 JUNE 2015

Application for costs.

[1] This is my decision concerning an application by Prima Pizza and Pasta (Employer) for costs arising out of an application by Mr Frank Femia (Applicant) seeking a remedy for alleged unfair dismissal from his employment with the Employer.

[2] Mr Femia’s originating application was the subject of Decision [2014] FWC 5293 and Order (PR553910).

[3] The Employer’s application for costs was the subject of an Interim Decision [2014] FWC 7816 and a conference on 17 February 2015.

[4] In his originating application, the Applicant contended that the real reason for his dismissal was his claim to be treated as an employee. On 26 March 2014, the Employer withdrew its jurisdictional objection that the Applicant was not an employee. From this point in time onwards, Mr Femia’s unfair dismissal application would succeed or fail on the substantive merits of his case.

[5] I found in Decision [2014] FWC 5293 that Mr Femia was among those small proportion of applicants who pursued an application alleging unfair dismissal for ulterior purposes. The ulterior purpose was that his employment status was that of an employee. When the ulterior purpose was achieved and the Employer withdrew its objection that Mr Femia was not an employee, he continued with his application on clearly unsustainable grounds. Mr Femia should have been aware that his claim had no reasonable prospect of success and this became clearly evident in his evidence at the hearing.

[6] I set out in my Decision [2014] FWC 5293, my assessment of Mr Femia’s evidence and it would serve no useful purpose repeating those comments. Simply put, he lacked credibility and was dishonest.

[7] In my Interim Decision concerning the costs application, I referred to the paucity of material provided by the Applicant in compliance with the Directions and at hearing. For example, I referred to the Applicant’s witness statement consisting of 11 points of which 10 of those points are two lines or less.

[8] The Applicant did not provide a Statement of Facts.

[9] The Agreed Statement of Facts consisted of six (6) points of approximately 11 lines and would have required no more thought, than the time it took to read the material.

[10] In view of this scarcity and quality of the material from the Applicant, I consider them as not requiring prolonged consideration by the Employer’s lawyer.

[11] This dearth of written material, in my view, complemented the lack of substance to Mr Femia’s application.

[12] However, notwithstanding these circumstances, it is appropriate and readily understandable that the Employer would want to prepare and properly comply with the Directions in presenting its case at hearing. For this reason, I am satisfied that costs should be made at the level discussed below.

[13] The initial costs schedule submitted by the Employer for the period after 26 March 2014, was $8 975.

[14] A further submission by the Employer included amounts not previously covered in the initial costs application and matters costed differently. The revised costs schedule totalled $9 858.50.

CONCLUSION

[15] For the reasons in Interim Decision [2014] FWC 7816 and above, I am satisfied that the jurisdictional requirement in s.400A(1) of the FW Act has been satisfied and that an order for costs should be made.

[16] In the circumstances, I am satisfied that my discretion should be orientated towards those costs incurred in relation to the Employer’s preparation and presentation of its case and not in response to the Applicant’s material.

[17] I have adopted the originating costs schedule. I am satisfied, pursuant to s.400A(1) of the FW Act, that from 26 March 2014, Mr Femia acted unreasonably in continuing his application alleging unfair dismissal, and as a consequence, the Employer unnecessarily incurred costs because of his actions. The unnecessary costs are contained in items 2, 3, 5, 6, 7, 8, 10 (at $50), 13, 15, 16 and 17. With respect to amounts in the subsequent schedule, I am satisfied that item 6 should apply and I have no information to validate items 14 and 15.

[18] An order for payment of costs is published in PR568042.

COMMISSIONER

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<Price code A, PR568035>