Mr Joe Szybkowski v Monjon Australia Pty Ltd T/A Monjon Australia Pty Ltd
[2010] FWA 7705
•4 OCTOBER 2010
[2010] FWA 7705 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joe Szybkowski
v
Monjon Australia Pty Ltd T/A Monjon Australia Pty Ltd
(U2010/10386)
COMMISSIONER ROE | MELBOURNE, 4 OCTOBER 2010 |
Application for costs.
[1] This is an application for costs made on behalf of Monjon (Australia) Pty Ltd (the Respondent in the unfair dismissal proceedings).
[2] The Section 394 Application for unfair dismissal remedy was heard on 17 September 2010 and the background to the proceedings and decision in that matter are set out in my decision of 17 September 2010 in PR501876. I found that there was no jurisdiction due to the fact that the Applicant had not completed the minimum employment period of six months.
[3] The Respondent had 200 employees at the time of the Applicant’s dismissal and is not a small business employer. The minimum employment period specified in Section 383(a) of the Act is therefore six months. The Applicant had been employed by Protect Security since 2003 as a security guard at Martha Cove. Martha Cove invited tenders for the security work in December 2009 and in April 2010 the Respondent was awarded the tender. Protect Security no longer had a contract to provide security services to Martha Cove. The Respondent agreed to engage the Applicant. The Applicant continued to perform the same work for the Respondent as he had previously performed for Protect Security. There was no significant period of unemployment between work with Protect and work with the Respondent.
[4] On 18 April 2010 the Martha Cove Guards employed by Protect Security were invited to apply for employment with the Respondent. The invitation advised that the Respondent would commence providing the security services at Martha Cove on 3 May 2010 and that Protect Security would cease providing the service at that time. On 27 April the Applicant was interviewed for employment with the Respondent and signed documents that he understood the conditions of employment. The Monjon (Australia) Pty Ltd Collective Agreement 2007 applies to the Respondent. The collective agreement provided that new employees were subject to a 3 month probation period. The Applicant commenced employment with the Respondent on or about 3 May 2010.
[5] The Applicant was dismissed at the initiative of the Respondent employer on 30 June 2010. This was less than three months after the commencement of employment with the Respondent.
[6] At the hearing of the application for costs on 1 October 2010 the Applicant Mr Szybkowski appeared together with a former employee of the Respondent Mr Norman McDonald. Mr Bryan Goudsblom, Chief Operating Officer of the Respondent appeared for the Respondent. A solicitor, Mr Sam Eichenbaum sought leave to appear for the Respondent employer. I granted leave for the costs hearing. However, I did not make a decision to grant leave in the earlier proceedings. At the end of the proceedings I rejected the application for costs and advised the parties that I may publish further reasons for my decision.
[7] The determination of the matter in respect to the unfair dismissal application proceeded largely in conference. In my earlier decision I said:
“(5) Having carefully read the submission of the Applicant and the submission of the Respondent and the witness statement of Mr Goudsblom for the Respondent I initially sought confirmation from the parties of some of the basic facts. Having received confirmation of those facts with the consent of the parties I adjourned the matter into conference for a period of time. Having reached understanding concerning some further matters in conference I then confirmed those understandings on transcript. I felt this was an appropriate manner in which to proceed given that the Applicant did not have the benefit of legal or union representation and the case depended upon matters of statutory interpretation. This was particularly the case given that the Respondent had the benefit of legal advice and was seeking to be represented by a solicitor. The Applicant objected to the Respondent being represented by a solicitor. At the conclusion of the hearing I dismissed the application on the grounds that I found that the Applicant did not have the required minimum period of employment to attract the unfair dismissal jurisdiction”.
[8] The Respondent employer wrote to Mr Dirks who was at that time representing the Applicant employee on 11 August 2010 (Exhibit M-1) setting out the reasons why they believed that the Application was outside the jurisdiction of Fair Work Australia and had no prospects of success and threatening to pursue costs if the matter continued to be pursued. There were a number of grounds for the assertions of the Respondent employer set out in the letter. They included that there was no transfer of business, that there was no reasonable expectation of continuing employment, that the Applicant employee had been informed in writing that prior service would not be recognised and that he was engaged as a casual and there had not been employment on a regular and systematic basis.
[9] Mr Dirks ceased to represent the Applicant employee sometime shortly after the correspondence from the Respondent employer’s solicitor of 27 August 2010. The Respondent employer’s solicitor then wrote in similar terms to the Applicant employee directly on 27 August 2010 (Exhibit M2). The letter also included the threat about costs if the matter was not withdrawn. The letter gives prominence to the same reasons as to why the application for unfair dismissal should fail as were set out in the letter of 11 August 2010.
[10] The Respondent employer sought to orders made for the Applicant employee to produce any correspondence between Mr Dirks and himself relating to the jurisdictional objection of the employer in these proceedings or any notes prepared relating to this matter. I refused to make such an order. I did so because unless there are exceptional circumstances I do not believe that the advice given by a representative to their client should be discoverable.
Furthermore even allowing for an inference that the refusal of the Applicant employee to
provide such information is that the information would not be helpful to the Applicant employee’s case there is still not a sufficient basis for an award of costs for the reasons I set out.
[11] In my decision I found that a number of the bases on which the Respondent employer had said the Applicant employee had no case were in fact matters that were strongly arguable in the favour of the Applicant employee. I found that it was most likely that Applicant would have satisfied the requirements of the legislation provided that there had been a transfer of business. I was not persuaded by the arguments of the Respondent employer that there had been written advice that prior service would not be recognised in a case of transfer of business. I was not persuaded by the arguments of the Respondent employer that the requisite period of continuous service could not have been met because the period of employment with the Respondent employer had been on a casual basis and that there was no reasonable expectation of continuing employment. There was only one of the matters raised by the Respondent in his letters of 27 August and 11 August which I did accept and that is that there had not been a transfer of business.
[12] In my decision I set out why the Applicant employee’s submissions on the question of transmission of business were unsuccessful. (Paragraphs 18 and 19 of Print 501876). It was absolutely clear to me that the Applicant employee sincerely believed the submissions that he made in the proceedings on 17 September and I have no reason to doubt this was also his sincere belief prior to that date. Furthermore as I said in my decision (Paragraph 20 of Print 501876) it was quite understandable that the Applicant employee expected to be protected in the situation he was in. He had every reason to believe that it was a transfer of business. That is what it looked like and felt like to him. He was doing the same work in the same place before the change in employer as he was doing after the change in employer. The legal situation around transmission of business is not an easy thing to understand.
[13] The Applicant employee says that he left school at 12 years of age. English is not the first language of the Applicant employee. Given the age, skills and educational background of the Applicant employee there is a reasonable prospect that he may not get further paid employment. His dismissal has very significant consequences for him. An award of costs against this employee would be to impose very significant further hardship upon him.
[14] It is reasonable in my view for an Applicant in proceedings to regard the assertions about the weaknesses in a case by the other side prior to the matter being heard with some suspicion. Therefore the fact that the Applicant employee in this case did not accept the arguments of the Respondent employer prior to the proceedings is not a matter of any great moment in my view. The fact is some of the points raised were clearly arguable and therefore it was reasonable for the Applicant employee to be sceptical about the arguments as a whole.
[15] It is also reasonable in my view for an Applicant to accept or reject the advice of those they might engage to represent them. A paid agent might decide that a case is not worth pursuing because of the risk to them receiving their fees but the Applicant might still have a reasonably held view that they still have an arguable case and decide to proceed.
[16] The legislation provides as follows:
“611 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.
Note: This subsection is a civil remedy provision (see Part 4-1).
[17] There is no suggestion from the Respondent employer that the application was made vexatiously or without reasonable cause. The Respondent employer argues that 611(2)(b) applies and that after they sent the letters on August 11 and 27 that it should have been reasonably apparent to the Applicant employee that the application had no reasonable prospect of success. The Respondent argues that I should infer from the refusal of the Applicant employee to produce correspondence in these proceedings that there was some advice from Mr Dircks to the Applicant that was negative about the prospects of success of the case if it proceeded. Even if I accept that negative inference and assume that Mr Dircks told the Applicant employee that the case did not have good prospects of success I do not accept given all the circumstances I have described that the Applicant should have known that the case had no reasonable prospect of success.
[18] In coming to my decision I have had regard for all the submissions made by the Applicant employee and the Respondent.
[19] I dismiss the application for costs.
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