Mr John Mokomoko v Zennforce Protection Group Pty Ltd
[2011] FWA 1217
•23 FEBRUARY 2011
[2011] FWA 1217 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Mokomoko
v
Zennforce Protection Group Pty Ltd
(U2010/5582)
COMMISSIONER ASBURY | SYDNEY, 23 FEBRUARY 2011 |
Application for unfair dismissal remedy - application for costs.
Background
[1] This is an application under s.611 of the Fair Work Act 2009 (the Act), by Zenn Force Protection Pty Ltd (Zenn Force) for an award of costs against Mr John Abraham Mokomoko, in relation to an application for an unfair dismissal remedy, which was withdrawn by Mr Mokomoko prior to hearing. Directions for the hearing and determination of the costs application required the parties to file submissions and statements of evidence within a specified time frame, and required either party to inform the Tribunal if it wished to cross-examine in respect of a witness for whom a statement was provided by the other party. The parties did not require any person who made a statement for cross-examination, and accordingly as foreshadowed in the Directions, I have determined this matter on the basis of material contained on the file.
Legislation and case law
[2] Section 611 of the Act provides:
“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).”
[3] The power to award costs under s.611 of the Act is discretionary, as was the case with earlier versions of the legislation. An order for costs first involves determining whether the situation is one in which there is a power to award costs, and if so, is an award of costs appropriate in all of the circumstances. 1 The general statement in s.611(1) that a person must bear the person’s own costs in relation to a matter before FWA, reflects the longstanding principle that costs will not be awarded against parties in industrial proceedings, other than in exceptional circumstances.
[4] The Objects of the unfair dismissal provisions include establishing quick, flexible and informal procedures, addressing the needs of employers and employees and ensuring that a “fair go all round” is afforded to the employer and the employee concerned. Parties in unfair dismissal applications may not be represented by lawyers or paid agents other than with permission of FWA, and where circumstances relating to efficiency and fairness are found to exist.
[5] Parties to applications for unfair dismissal remedies before FWA often have limited financial means - applicants are frequently unemployed. Many respondents are small businesses struggling in the current economic environment. Many parties cannot afford representation and have no option but to be self-represented, often under great difficulty, given the complexities of the legislation. Parties should not be deterred from bringing proceedings, or responding to them, by the risk of a costs order, and are entitled to their “day in court”. 2
[6] The grounds under s.611 on which an application for costs may be granted against an applicant are:
- The application was made vexatiously - s.611(2)(a);
- The application was made without reasonable cause - s.611(2)(a); or
- It should have been reasonably apparent to the applicant that the application had no reasonable prospects of success - s.611(2)(b).
[7] The grounds upon which costs can be awarded against an applicant under s.611(2)(a) relate to the point at which the application in respect of which costs are sought, is made. FWA must be satisfied that at the point the application was made, it was made vexatiously or without reasonable cause. Unreasonable or vexatious conduct on the part of an applicant which occurs after the application is made, may be relevant to determining what the position was at the point the application was made, but it cannot of itself, constitute grounds for an award of costs against an applicant.
[8] For example, the late withdrawal of an application or the refusal of a reasonable offer of settlement, will not of itself justify an award of costs against the applicant. However, such conduct may be indicative of an application made vexatiously or without reasonable cause. Such conduct may also be relevant in circumstances where there is a power to award costs and consideration is being given to whether there are discretionary grounds to make such an award or to refrain from doing so.
[9] This approach is consistent with the approach taken in cases dealing with previous provisions relating to costs, containing terms such as “instituted proceedings”, “made an application” or “began proceedings”. It has been held that such provisions require an investigation of the position at the date of the application. 3
[10] Similarly, the use of the past tense in s.611(2)(b) and the reference to an application, is indicative that the reference point for considering when it should have been reasonably apparent that the application had no reasonable prospects of success, is the point at which the application was made. However, it is also arguable that events occurring while an application is being advanced, can be a reference point against which an assessment can be made that an application had no reasonable prospects of success. Persisting with an application after being informed by a FWA Conciliator that there are no reasonable prospects of success on the basis of the applicant’s own material, may result in a finding that it should have been reasonably apparent that this was the case and that costs should be awarded. However, where there are disputed facts I would have great difficulty in awarding costs against an applicant on the ground that the applicant did not withdraw when confronted with the respondent’s version of events.
[11] It is not necessary in this matter, to determine the circumstances in which costs may be awarded against a respondent. However, it is arguable that the use of the past tense “responded” in s.611(2)(a) indicates that costs can only be awarded against a respondent if, at the point it is made, a response is vexatious or made without reasonable cause, albeit that there may be numerous points throughout the course of an application at which various responses are made. It is axiomatic that the power does not arise at all unless and until a response is made.
[12] The limitations associated with the requirement to consider circumstances at the point an application or response is made was not of major significance under the provisions of the Workplace Relations Act 1996 and earlier versions of the legislation, because of the additional power to make an award of costs on the basis of unreasonable acts or omissions in connection with pursuing or defending an application, including unreasonably failing to discontinue or settle a matter. However, s.611 of the Act does not allow an order for costs to be made in such circumstances, and this is a significant change.
[13] The circumstances in which an application will be found to have been made vexatiously were discussed by Justice North in Nilsen v Loyal Orange Trust 4as follows:
“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceedings. It is an alternative ground to the ground based on lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceedings. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage.”
[14] In Attorney-General v Wentworth 5Roden J observed that litigation may be regarded as vexatious on objective or subjective grounds and that the test could be expressed as follows:
“1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless...” 6
[15] Other grounds upon which an application could be said to have been instituted vexatiously were identified in Re Cameron 7as: the legitimacy or otherwise of the motives of the applicant; existence or lack of reasonable grounds for the claims sought to be made; repetition of compliance with or disregard of the Court’s practices, procedures and rulings; persistent attempts to use the Court’s processes to circumvent its decisions or other abuse of process; wastage of public resources and funds; and the harassment of those who are subject of the litigation which lacks reasonable basis.8
[16] In relation to s.611(2)(b), the meaning to be given to the term “without reasonable cause” was considered by Wilcox J in Kanan v Australian Postal and Telecommunications Union 9. After reviewing a number of cases, his Honour formulated a test in the following terms:
“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.” 10
[17] His Honour went on to hold that there was no discretionary reason to withhold an order for costs observing that:
“It is not a matter of the applicant’s motives but, rather, that he has put the respondent to the expense of resisting a claim which was always doomed to failure. There is no question of punishing the applicant for his unreasonable course of action. The rationale for making a costs order is that a measure of indemnity should be conferred upon the respondent for the costs it has been obliged to incur in responding to the unreasonably instituted proceeding.” 11
[18] With respect to the third limb in s.611(2)(b), the terms “reasonably apparent” and “no reasonable prospects of success” have appeared in earlier versions of the legislation, and I can see no basis for departing from the principles established in cases dealing with those earlier versions. The question of whether something is reasonably apparent must be objectively determined, rather than determined on the basis of what the person making the application or responding to it. The test is that FWA be satisfied that it should have been reasonably apparent that an application or a response had no reasonable prospects of success. 12 The conclusion that an application had no real prospects of success: “should only be reached with extreme caution and where the application is manifestly untenable or groundless”.13 Further, as Whelan C observed in Darcy v Megan Fitzgerald & Associates Pty Ltd14:
“We are dealing in this case with new legislation, the parameters of which have not been tested by the Courts. ... In my view, 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 prospects of success’ where the facts and the law have not been tested in a hearing.” 15
The background to the costs application
[19] The series of events surrounding the costs application was as follows. Mr Mokomoko made an application for an unfair dismissal remedy on 22 January 2010. On 15 February 2010, Zenn Force filed an Employer’s Response to the application (Form F3), objecting to it on the jurisdictional ground that Mr Mokomoko was not dismissed.
[20] The matter was listed for Jurisdiction/Directions Conference before FWA on 25 March 2010. At that conference, Zenn Force’s legal represenatives raised an additional objection on the ground that Mr Mokomoko did not have the requisite minimum period of employment at the time of his dismissal. Directions were issued to facilitate the hearing of the jurisdictional objections. Those directions required Zenn Force to file and serve submissions outlining the jurisdictional objection and witness statements from each witness to be called at the hearing, by 16 April 2010, and Mr Mokomoko to file and serve submissions and witness statements by 7 May 2010. A hearing was scheduled for 27 and 28 May 2010.
[21] Zenn Force complied with the Directions and filed submissions and witness statements by the required date. On 6 May 2010, Mr Mokomoko emailed my Associate and sought an extension of time for his submission of one month. That email was forwarded to Solicitors for Zenn Force, who responded opposing the extension of time. Mr Mokomoko was granted an extension of time of one week, and was directed to file and serve his material in relation to the jurisdictional objection, by 14 May 2010. It was also made clear to both parties that the scheduled hearing dates of 27 and 28 May had not been vacated.
[22] On 14 May 2010, Mr Mokomoko forwarded an email to my Associate seeking an adjournment of the unfair dismissal hearing. Essentially the adjournment was sought on the grounds that the Fair Work Ombudsman was investigating a number of allegations made by Mr Mokomoko against Zenn Force.
[23] A further Directions Conference was held on 24 May 2010 to deal with Mr Mokomoko’s application for an adjournment. At that conference, it was apparent that Mr Mokomoko would have difficulty proceeding with the jurisdictional hearing on 27 and 28 May. Mr Mokomoko also indicated that he had obtained legal representation and undertook to advise a time, on either 27 or 28 May when his representative would be available for a further Directions hearing. A notice was forwarded to the parties on 24 May 2010 cancelling the hearing on 27 and 28 May and stating that the matter would be relisted for directions upon advice from Mr Mokomoko regarding the availability of his representative on Thursday 27 or Friday 28 May 2010.
[24] On 25 May 2010 at 10.58 am, Solicitors for Zenn Force emailed my Associate by stating that they had been advised by the Barrister referred to by Mr Mokomoko at the conference on 24 May 2010, that she was not available to act for Mr Mokomoko. The email went on to state that the Barrister had requested Solicitors for Zenn Force to inform FWA that she is not involved in the matter. At 11.34 am on 25 May 2010 Mr Mokomoko emailed my Associate to advise that the person arranged to represent him was no longer available, and explaining his difficulty in obtaining alternative representation, due to lack of funds. The email concludes with Mr Mokomoko stating that unless he can find another legal representative in the time he has left, he must withdraw his complaint.
[25] My Associate emailed Mr Mokomoko on 26 May to inform him that a definite decision was required in relation to whether he intended to discontinue the matter. Solicitors for Zenn Force were informed of this communication with Mr Mokomoko. On 27 May 2010 Mr Mokomoko emailed my Associate to advise that he was taking steps to obtain legal representation, and giving an undertaking that if he was not successful by 2.30 pm on that date, he would withdraw his application.
[26] On 27 May 2010 at 2.05 pm Mr Mokomoko again emailed my Associate to advise that he had contacted some 20 law firms and been unable to obtain representation, and now wished to withdraw his application for an unfair dismissal remedy. The email also stated that Mr Mokomoko would continue to pursue issues relating to work performed for Zenn Force through the Office of the Fair Work Ombudsman.
Submissions
[27] The application for costs is made on the grounds that Mr Mokomoko made his application vexatiously, and in the alternative, that it should have been reasonably apparent to Mr Mokomoko that he had no reasonable prospects of success.
[28] In relation to the first ground, it is contended that Mr Mokomoko made false allegations to the Tribunal when he sent the following email on 6 May 2010:
“I am requesting an extension for time on my submission of one month to enable Zennforce Protection Group Pty Ltd and myself to settle or come to some agreement/arrangement prier to a hearing due to the following reasons:
1. The AWA/ Collective agreement or Enterprise agreement, that I refused to sign and therefore was taken off the roster, has not been lodged with Fair Work Australia and has failed to meet the standards set out by Fair Work Australia. It will most likely not be lodged as the Fair Work Ombudsman is seeking to hold Zennforce Protection Group Pty Ltd, Shane Gordon, accountable for coercion to sign an agreement.
2. The Fair Work Ombudsman has finalized their investigation on Zennforce Protection Group Pty Ltd, Shane Gordon, operating as a sham contractor. Instead of paying myself and all the other Security Officers to an award, now will be faced with back paying me for 5 years, including Superannuation, including the short period where we were under paid on Zennforce Protection Group Pty Ltd, Shane Gordon’s “AWA award”.
3. This proves I was employed as an under paid employee from the 5th of May 2005 to the week ending 10th of January 2010.
As Zennforce Protection Group Pty Ltd, Shane Gordon, will be notified of the Fair Work Ombudsman’s findings of their investigation and given the option of a formal complaint made regarding back pay of wages/Superannuation for all of his staff and fines per breach of this law, I think/feel we should be able to settle this without the need to use up your valuable time within the month I have asked for.”
[29] The allegations are said to be false on the basis that:
- The Report of the Fair Work Ombudsman (the FWO Report) was not finalised until 29 July 2010, not as at 6 May 2010 as asserted by Mr Mokomoko;
- Mr Mokomoko asserted that Zenn Force was acting as a sham contractor, contrary to the finding in the FWO Report that Zenn Force is meeting its obligations under Commonwealth workplace laws and no further action will be taken by the FWO;
- Mr Mokomoko asserted that Zenn Force was paying below the award and would be required to backpay the applicant and other employees for five years, contrary to the finding in the FWO Report that Zenn Force was paying in excess of the award rate and that an underpayment claim cannot be sustained; and
- Mr Mokomoko claimed that he had spoken with an investigator who was speaking with her superior with respect to the serious outcome of the investigation which will involve 50 - 60 staff who have worked for over 4.5 years, and the contents of the telephone conversation as relayed to the Tribunal by Mr Mokomoko are clearly false given the outcome of the FWO Report.
[30] It is contended that the allegations in the email from Mr Mokomoko dated 6 May 2010, indicate a disregard for the Tribunal’s practices; an abuse of process and a waste of public funds on the part of Mr Mokomoko. This was said to be because Mr Mokomoko set out allegations he knew, or ought to have known, were false, in the original application and in his email to the Tribunal dated 6 May 2010.
[31] In relation to the alternative contention that it should have been reasonably apparent to Mr Mokomoko, on the basis of material filed by Zenn Force, that his application had no reasonable prospects of success, it is contended that it should have been clear that FWA did not have jurisdiction to hear and determine the application for an unfair dismissal remedy because Mr Mokomoko was not dismissed within the meaning of s.385(a) of the Act and he had not completed the minimum employment period as required by s.382 and s.383 of the Act.
[32] Costs are claimed in the amount of $5,003.00 as set out in a statement of costs appended to an affidavit made by Mr Craig Allan DoRozario, Solicitor. Costs are not claimed against Mr Mokomoko in relation to his response to the jurisdictional objections raised by Zenn Force.
[33] The application for costs was opposed by Mr Mokomoko.
Evidence
[34] Evidence in support of the application for costs was given on affidavit, by:
- Shane Deon Gordon - Director and Owner of Zenn Force; and
- Craig Allan DoRozario - Solicitor in the employ of Potts Lawyers, Solicitors for Zenn Force.
[35] Mr Gordon said that at the time Mr Mokomoko filed his application for an unfair dismissal remedy, he also lodged a complaint with FWO. Zenn Force cooperated with the FWO investigation. On being made aware of Mr Mokomoko’s email of 6 May 2010, Mr Gordon became concerned as the email stated that the FWO had finalised its investigation and found that Zenn Force was a “sham contractor”; was paying below the minimum wage; and would be required to back pay 40 - 50 employees for 4.5 years. Mr Gordon contacted the FWO and was told that the investigation was not completed and that no conclusions had been made with respect to Mr Mokomoko’s complaint. Mr Gordon was also told by the investigator that Mr Mokomoko had not been told that the investigation was nearly finished, or that there was any adverse finding against Zenn Force.
[36] Appended to Mr Gordon’s statement, was a copy of the Finalisation of Investigation Report prepared by Ms Louise Casey of the Office of the FWO. According to Mr Gordon, the Report confirms that at all material times, Zenn Force was in compliance with Commonwealth workplace laws and paid employees an hourly rate above the minimum wage prescribed in the relevant award. The allegations made by Mr Mokomoko are therefore false.
[37] Mr Gordon further states that as a result of the application for an unfair dismissal remedy, it has been put to considerable expense in engaging Potts Lawyers and Counsel to act in this matter and advise it. It is contended by Mr Gordon that the vexatious actions of Mr Mokomoko were brought on by his decision to change Mr Mokomoko’s status from an independent contractor to an employee. The statements made by Mr Mokomoko in the application for an unfair dismissal remedy are also said to be incorrect and refuted by the submissions and statements filed on behalf of Zenn Force. On this basis, Mr Mokomoko should have known that his application had no reasonable prospects of success.
[38] The Report of the Fair Work Ombudsman into Mr Mokomoko’s complaint was appended to Mr Gordon’s Affidavit 16. In summary the Report indicates that Mr Mokomoko’s complaint raised allegations of underpayment of hourly rates, payment of overtime rates, payment of public holiday penalty rates, duress to sign an employment contract and sham contracting arrangements. Under the heading “Outcome of Investigation” there is a statement that:
“The investigation into this complaint has not identified any contravention of Commonwealth workplace laws.”
[39] According to the Report, the issue to be determined is whether Mr Mokomoko’s relationship with Zenn Force is one of employment or independent contract. A significant body of the Report deals with the application of a “multi-factor test” to this issue. There are a number of factors said to indicate a relationship of employment and a number said to indicate a relationship of independent contract. It was concluded that for work performed by Mr Mokomoko at site venues that do not include the Tugun Desalination Plant and associated sites, it cannot be concluded on the balance of probabilities that he was an employee, and that for work performed on the Tugun Desalination Plant, Mr Mokomoko was an employee on the balance of probabilities, and entitled to the benefits of Commonwealth workplace laws. 17
[40] It was also concluded that the complaints in relation to underpayment of hourly rate; public holiday penalty rates; overtime and allowances could not be sustained. In relation to a complaint about failure to pay notice on termination, it was concluded that Mr Mokomoko was a casual employee and did not have such an entitlement.
[41] With respect to the complaints relating to duress to sign a workplace agreement and sham contracting, the Report states that these matters have been referred for investigation by the Complex Innovations and Investigations Team, and that Zenn Force will be contacted in due course about this matter.
[42] Mr Mokomoko’s submission and witness statement in relation to the costs application, repeats the allegations made to and investigated by the FWO. Essentially Mr Mokomoko maintains that he commenced employment on 15 May 2005 under a sham contract, and was dismissed on 11 January 2010. Mr Mokomoko also contends that he was underpaid with reference to the relevant award, and goes on to make allegations in relation to duress and coercion in relation to the signing of an agreement. Mr Mokomoko outlined his attempts to obtain legal representation and names a significant number of legal practitioners from whom he sought assistance.
[43] Mr Mokomoko also contended that it is clear from the Report of the FWO that at very least, he was an employee while working on the Tugun Desalination Plant from May 2007 until 10 February 2010, and that this employment was for a period of greater than six months. This submission was not responded to by Zenn Force.
Conclusions
[44] I am not satisfied that Mr Mokomoko made an application for an unfair dismissal remedy vexatiously as provided in s.611(2)(a). There is no basis for finding that the application was made for the purpose of harassing or embarrassing Zenn Force.
[45] Mr Mokomoko’s application for an unfair dismissal remedy was made on 22 January 2010. According to the Investigation Report his complaint to the Office of the FWO was made on 20 January 2010. While there is an overlap in the factual material in both matters, they deal with different aspects of Mr Mokomoko’s relationship with Zenn Force. There is nothing to suggest that Mr Mokomoko was using either matter for collateral advantage in relation to the other matter.
[46] The email from Mr Mokomoko to the Tribunal on 6 May 2010, said to constitute grounds for a finding that the application for an unfair dismissal remedy was made vexatiously, was sent after that application was made. That email provides no basis for a finding that the application made by Mr Mokomoko on 20 January 2010 was made vexatiously. Further, the submission that the email contains false allegations cannot be sustained. Mr Mokomoko states in that email that he was told that the Report was being finalised, not that it had been finalised. There was no evidence from the FWO Investigator about what she told Mr Mokomoko. The evidence of Mr Gordon with respect to what the Investigator told him is hearsay. I am not prepared to find that Mr Mokomoko was untruthful in this correspondence on the basis of such evidence. It is equally probable that Mr Mokomoko was told that the Report was being finalised or that he misunderstood what was said by the FWO Investigator.
[47] Mr Mokomoko’s manner of expressing himself in that email is confusing and the statements he makes are far from clear. Mr Mokomoko was not cross-examined about the email, and it is equally probable that he is expressing his view about what the outcome of the FWO investigation will be rather than asserting that he was told this information by the Investigator. The submission that the FWO found that Zenn Force is meeting its obligations under Commonwealth workplace laws in response to the assertion by Mr Mokomoko that Zenn Force was acting as a sham contractor, cannot be sustained. It is clear from the Report that the FWO made no finding in relation to the assertion of sham contracting, and simply referred that matter, along with allegations of duress in relation to a workplace agreement, for further investigation.
[48] In any event, even if the allegations in the email were false, Zenn Force did not establish that the email had any relevance to the legitimacy or otherwise of Mr Mokomoko’s motives at the point he made his application for an unfair dismissal remedy. Misleading or unreasonable conduct in the pursuit of an application, does not automatically equate to a finding that the application was made vexatiously. It is equally probable that Mr Mokomoko was simply struggling with the requirements of progressing his application, including the preparation of submissions and witness statements, particularly in circumstances where Mr Mokomoko was taking these steps without representation.
[49] It was not contended for Zenn Force that Mr Mokomoko’s application was made without reasonable cause. In relation to the grounds in s.611(2)(b) I am not satisfied that it should have been reasonably apparent to Mr Mokomoko that his application had no reasonable prospects of success. Mr Mokomoko contended that his relationship with Zenn Force was one of employment. Had that argument succeeded, Mr Mokomoko may have been able to establish that he had completed the minimum employment period. The success of this argument would have depended on the finding of facts and resolution of points of law in Mr Mokomoko’s favour. In my view, the material on the file establishes that these issues of law and fact were arguable. This is apparent from the Investigation Report, which runs to some 22 pages and analyses in some detail all of the material provided by Mr Mokomoko in support of his allegations.
[50] It is also clear that the Report analysed various aspects of the relationship between Mr Mokomoko and Zenn Force, and applied a “multi-factor test” which identified factors suggesting an employment relationship and factors suggesting that the relationship was one of independent contract. The conclusions in the Report essentially balanced those factors finding that in respect of work performed at venues other than the Tugun Desalination Plant, there were six factors supporting a finding that there was an employment relationship and nine factors in favour of a relationship of independent contract, with one factor unable to be determined either way.
[51] In relation to the Tugun Desalination Plant, thirteen factors were found to indicate an employment relationship, one factor a relationship of independent contract and two unable to be determined. The Report was not based on a hearing at which evidence was called, and it cannot be said that on Mr Mokomoko’s version of the facts, it is clear that his claim must fail. A hearing before FWA may have resulted in a different outcome. Further, if it was correct that the work performed at the Tugun Desalination Plant was under a contract of employment, the duration of that contract is prima facie sufficient for Mr Mokomoko to have completed the minimum employment period required to bring an application for an unfair dismissal remedy.
[52] In effect, Zenn Force is arguing that after reading the witness statements and material filed in relation to its jurisdictional objection, it should have been reasonably apparent to Mr Mokomoko that his application had no reasonable prospect of success. The reality is that Mr Mokomoko contested the facts asserted on behalf of Zenn Force and those facts were not tested in a hearing. Success in the jurisdictional argument depended on findings being made in favour of Zenn Force. In those circumstances, it cannot be said that it should have been reasonably apparent to Mr Mokomoko that his application had no reasonable prospects of success.
[53] This is not a situation where there is a power to award costs. The application for costs is dismissed. I Order accordingly.
COMMISSIONER
Final written submissions:
2010.
Brisbane:
August 12.
1 McKenzie v Meran Rise Pty Ltd t/as Nu Force Security Services Dec 375/00 M Print S4962 Per Giudice J, Watson SDP and Whelan C at [7].
2 Zhang v The Royal Australian Chemical Institute Inc. (No.2) [2004] FCA 1626 (10 December 2004) per Finkelstein J; Hatchett v Bowater Tutt Industries (1991) 39 IR 31. See also
3 Howard v Cummins [1988] 27 IR 109; Zhang v The Royal Australian Chemical Institute Inc. (No.2) [2004] FCA 1626 (10 December 2004) at [5].
4 IRCA Decision No: 267/97.
5 (1988) 14 NSWLR 481.
6 Ibid at 491.
7 Re Cameron (1996) 2 Qd R 218 per Fitzgerald P.
8 Ibid at 220.
9 (1992) 43 IR 277.
10 Ibid at 283-4.
11 Ibid at 284.
12 Wodonga Rural City Council v Lewis PR956243 4 March 2005 at [6] per Watson SDP, Lloyd SDP and Gay C.
13 Wright v Australian Customs Service PR926115, 23 December 2002 at [23]-[27] and [32]; Deane v Paper Australia Pty Ltd [PR 932454, 6 June 2003] at [7]-[8] and Papunya Community Council Inc. V Hanley
14 [2009] FWA 1547.
15 Ibid at [27] - [28].
16 Exhibit “SDG-1”.
17 Ibid p. 18/22.
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