Mr Gerardo Papalia v Co.As.It. - Italian Assistance Association T/A Co.As.It

[2014] FWC 2815

[2014] FWC 2815

FAIR WORK COMMISSION

DECISION

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

Mr Gerardo Papalia
v
Co.As.It. - Italian Assistance Association T/A Co.As.It.
(U2013/5638)

COMMISSIONER ROE MELBOURNE, 30 APRIL 2014

Application for costs for Jurisdiction objection.

[1] On 22 October 2013 I issued a decision dismissing a jurisdictional objection by the Respondent that the Applicant had been employed on a maximum term or outer limit contract that expired and therefore the termination of employment could not be an unfair dismissal [[2013] FWC 7996]. Mr Butera on behalf of the Applicant advised his intention to apply for costs in respect to the jurisdiction hearing on 24 October 2013. Mr Butera then advised on 13 November 2013 that he would make the application for costs after the substantive hearing of the matter which was scheduled for early February 2014. The substantive matter settled just prior to the hearing and in advising of the settlement on 5 February 2014 Mr Butera wrote to the Fair Work Commission (the Commission) as follows:

“We now require directions hearing before Commissioner Roe to make an application for costs in relation to the jurisdiction issue. Please let us have a mention date as soon as possible.”

[2] After some further correspondence Mr Butera submitted a formal costs application on 5 March 2014. It appears that directions I intended to issue on the same day were not received by the parties. Once we became aware of this problem further directions were issued. The parties agreed that the matter should be determined on the basis of written submissions. The Applicant provided submissions on 24 April 2014.

[3] Having considered the submissions I decided that it was not necessary that the Respondent be put to the expense of submissions in reply as I was in a position to issue a decision based upon consideration of the Applicant’s submission.  

[4] As would become immediately apparent from a reading of my decision of 22 October 2013 I was only able to determine that the contract of employment was not a maximum term contract after careful consideration and weighing of the evidence before me. In those circumstances I cannot see a proper basis for concluding that the jurisdictional objection of the Respondent was either brought vexatiously in circumstances where there was no prospect of success or where it should have been reasonably apparent to the employer that their objection was without merit. I do not accept that it should have been reasonably apparent to the employer that the nature of the contract of employment would be determined to be as was as asserted by the Applicant. The Respondent had an arguable case.

[5] The Applicant also submits that the position of the Respondent that the Commission was limited to considering the written documents in determining the nature of the contract between the parties was not only wrong in law but also unreasonable. Even if I was to accept the submission, which I do not, simply because a particular matter raised by a party in proceedings is found to be wrong does not make the whole application without reasonable prospect of success or without reasonable cause.

[6] There is therefore no basis on which I can order the costs sought under Section 401(1A)(a) or under Section 611(2)(a) or (b) of the Fair Work Act 2009 (Cth) (the Act). The only other relevant Section is Section 401(1A)(b) of the Act.

[7] The Applicant submits that the application was one that could have been dealt with at the hearing on the merits without the necessity for a separate hearing. This potentially raises the considerations in Section 401(1A)(b) and the Applicant also submits that this is an alternative basis for considering that the conditions in Section 611(2)(a) and/or (b) are met.  However, it is the Fair Work Commission which determines the conduct of proceedings and whether or not a jurisdictional objection is heard together with the merits or not. This is not a matter within the control of the Respondent. It was the Commission which determined, having considered the position of the parties, to hear the jurisdiction matter separately from the merits matter. I am satisfied that it is not possible to order costs against the Respondent because they made a successful submission to the Commission for the matter to be heard separately.

[8] The Application is dismissed. The file will now be closed.

COMMISSIONER

Final written submissions:

Applicant submissions received 24 April 2014.

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