Mr Mark Robert Carius v Thiess Pty Ltd T/A Thiess Degremont
[2011] FWA 4638
•22 AUGUST 2011
[2011] FWA 4638 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Mark Robert Carius
v
Thiess Pty Ltd T/A Thiess Degremont
(C2011/3873)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 22 AUGUST 2011 |
Summary: application for costs - s.611(2)(a) of the Act - s.611(2)(b) of the Act - without reasonable cause - no prospect of success - costs application and exercise of discretion
[1] This is an application for costs by Thiess Pty Ltd T/A Thiess Degremont Pty Ltd (“the Respondent”) against Mr Mark Robert Carius (“the Applicant”), who made an application under s.365 of the Fair Work Act 2009 (“the Act”) on 1 April 2011 (“the original application”). At that time, the application was some 219 days outside of the statutory time period of 60 days, as stipulated at s.366(1) of the Act. That is, the application was made some 279 days after the date the dismissal allegedly took effect. The Respondent opposed the application on grounds it was made outside the statutory time period, and a hearing eventuated for purposes of s.366(2) of the Act, to determine whether Fair Work Australia (“FWA”) would exercise its discretion to allow the application notwithstanding its non compliance with s.366(1) of the Act.
[2] The application in this regard was heard on 29 April 2011, and a decision made in transcript at that time. In that decision I dismissed the original application for reason that it did not comply with the requirements of s.366(1) of the Act. I found that that there were no exceptional circumstances that warranted me exercising my discretion to allow the application in a further period of time, pursuant to s.366(2) of the Act.
[3] This application now before me is made under both s.611(2)(a) and s.611(2)(b) of the Act, and seeks that costs, in whole or in part, be ordered to be paid by the Applicant to the Respondent in relation to the proceeding under s.366(2) of the Act.
[4] Section 611 of the Act reads 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 of the 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).
APPLICANT’S CASE
[5] The Applicant was employed as a security coordinator with the Respondent but the Respondent thereafter assisted, it seems, in arranging a contract of service for the Applicant with another entity called Australian Security Intelligence (“ASI”). Under that contract he performed certain duties not comprehended within the terms of his employment with the Respondent proper.
[6] The Applicant alleged that he was dismissed from his position as a security coordinator with the Respondent on or about late June or July 2010, or possibly 28 June 2010. The Respondent claims that the Applicant both resigned his position with it and terminated his contract with ASI for the payment to him of $60,000 (paid by the Respondent through ASI, seemingly).
[7] The application under s.365 of the Act was made on 1 April 2011.
[8] The application under s.365 of the Act concerned the Applicant’s position as a security coordinator with the Respondent 1.
[9] In his written submissions the Applicant contended that he did not make the application earlier because he felt that he was constrained by a confidentiality agreement that he believed applied to the circumstances relevant to his dismissal, as he alleged it to be 2.
[10] There was no evidence of any written agreement introduced in the proceedings 3.
[11] The confidentiality arrangement was believed by the Applicant to be implied because he was made aware that his prior duties were of a sensitive nature, and that he should not, consequently, divulge any of the circumstances by way of an application under s.365 of the Act 4.
[12] The Applicant stated that he believed the confidentiality agreement applied to his employment relationship with the Respondent and his contract with ASI 5.
[13] However at other times, the Applicant suggested that he could not see how a confidentiality agreement could apply to his employment with the Respondent (which was the subject of the application under s.365 of the Act), as his work with the Respondent itself as a security coordinator was uncontroversial 6.
[14] Despite the presumed implied confidentiality agreement, the Applicant sent an email to the Respondent on 26 July 2010, in which he threatened legal action against the Respondent in relation to an agreed payment (as part of the agreement he had reached) “to leave site”.
[15] The Applicant had so acted at this time after he had received legal advice (which in actuality appears to have been very limited advice indeed) which included, at least potentially, access to a “specialist in IR law” should the need arise.
[16] The Applicant alleges that he sought this advice in relation to the payment issues (which were ultimately resolved later in August 2010) concerning the contract of service with ASI, and not in relation to his position as a security coordinator with the Respondent (though in respect of this latter arrangement he did not feel that any confidentiality arrangement could reasonably apply).
[17] This legal advice was obtained approximately 30 days after his dismissal.
[18] On 9 August 2010, with no payment having been made to him at that time, the Applicant sent another email to the Respondent indicating an intention to take legal action to recover monies he alleged were owing (and which were subsequently paid).
[19] In that email the Applicant stated that “[a]s I said at our meeting in late June, I could not be held responsible for any information that arises out of me starting legal action against ASI [...]”.
[20] The Applicant believed that the implied confidentiality agreement, so far as it can be assumed to have ever existed, was lifted when the circumstances of his employment generally were revealed in a newspaper article published in November 2010 7.
[21] It appears that legal advice was obtained by the Applicant in or about mid March 2011 that he was not bound by any confidentiality agreement. This was four months after the newspaper articles publicised the circumstances of his prior employment.
[22] The Applicant did not make an application under s.365 of the Act until 1 April 2011 (which was shortly after being advised by his legal advisor that no confidentiality agreement was in place). The Applicant made the application for an extension of time under s.365 of the Act with legal assistance 8.
[23] The Applicant had been disposed to challenge the Respondent's actions towards him since the time of his alleged dismissal (in late June or early July 2010).
[24] The Applicant's submissions in relation to this costs application were made on his behalf by a legal representative. The gist of that submission was that the Applicant:
- was properly motivated to pursue a grievance about his alleged dismissal;
- was not acting vexatiously;
- felt precluded from seeking relief by an implied confidentiality agreement and maintained this belief until certain matters entered the public arena;
- acted without legal advice; and
- while his application had poor prospects, it was not demonstrably futile.
[25] None of these submissions weigh strongly against making an order, I should say. This is because:
- the subjective motivation for the application is not a relevant consideration for a costs application;
- the Respondent made no application for costs on grounds of vexatiousness;
- the Applicant believed himself to be constrained from pursuing his rights because he was bound by an implied confidentiality agreement, but at the same time threatened to take actions which might bring otherwise confidential information into the public domain;
- certain matters came into the public arena in November 2010 (which affected the Applicant's understanding of the implied confidentiality agreement) but were not acted upon for some four months later;
- no adequate explanation for the delay was advanced; and
- the application was made with the assistance of a legal representative (and the Applicant had previously obtained the assistance of legal representative).
[26] My views about the costs application before me, as set out below, are not assisted by the submissions of the Applicant's legal representative.
CONSIDERATION
[27] Initially, I make it clear that on my construction, because s.611 of the Act applies to an application made to FWA, it also applies to an extension of time proceeding under s.366 of the Act for purposes of s.365 of the Act.
[28] So satisfied, I must now determine whether there is jurisdiction to exercise the discretion to award costs. In order to exercise the relevant discretion, it is necessary to determine whether the requisite degree of satisfaction can be reached in respect of either or both of s.611(2)(a) and s.611(2)(b) of the Act.
[29] Section 611(2)(a) of the Act requires “FWA [to be ] satisfied that the [Applicant] made the application [...] vexatiously or without reasonable cause.”
[30] The Respondent does not press that the Applicant has acted vexatiously.
[31] It appears to me that on the basis of the evidence set out above, the Applicant had poor prospects of his reason for delay being of any persuasive power in relation to seeking an extension of time on the basis that his overall circumstances (for purposes of s.366(2) of the Act) were exceptional in nature.
[32] But s.366(2) of the Act is a discretionary jurisdiction which is to be exercised after having regard to a range of matters. The reason for the Applicant's delay is but one of those matters. FWA also must consider whether there was any action taken by the Applicant to dispute the dismissal; any prejudice to the employer; the merits of the application; and the fairness between the Applicant and other persons in a like position.
[33] The uncontested evidence in the proceeding at first instance was that the Applicant had been in a heated discussion with the Respondent in late June or July 2010 about what he believed to be an unfair dismissal from his role as Security Coordinator. The Respondent, therefore, was not left with any indication the Applicant necessarily had accepted his circumstances at that juncture.
[34] The issue of prejudice to the employer was not knowledge that was held by the Applicant at the time he made the application. In any event, I made no finding that there was any evidence before me which demonstrated that the employer would be prejudiced by the application and the period of the delay (albeit a long period).
[35] The circumstances in relation to the alleged dismissal which are relevant to the merits of the application were contested. The Applicant maintained that he received a payment only in respect of his contract with ASI, and was invited to leave site for only a period of time. On this basis, he believed that his employment relationship with the Respondent as a Security Coordinator would continue uninterrupted upon his return. The Applicant maintained that the undertaking his employer had entered with him was abandoned (and he was dismissed) only because the employer believed the industrial circumstances that had emerged made it impossible to accommodate his return to site.
[36] The Respondent maintains otherwise: that the agreement to make a payment to the Applicant was a consideration both in relation to the ASI contract and the Security Coordinator position, and the Applicant was fully aware of this agreement and had acted in accordance with that agreement.
[37] The merit of the matter, clearly, was indeterminate at the procedural stage, save as to mention that many of the interactions between the Applicant and the Respondent were not put in writing and were subject to informal considerations. To this end, I note that the principal discussions between the Applicant and the Respondent appeared to take place in a cafe over a cup of coffee, and the agreed outcome was concluded with a hand shake. The precise terms of the arrangements and understandings the parties had entered into fell into conflict very quickly thereafter.
[38] I add further that it is most unlikely the Applicant would have been in a position to determine one way or another whether a consideration of fairness as between himself and other persons in a like position was a consideration that might favour his application, or give him pause to review his intentions. Indeed, there are varied approaches across the tribunal to s.366(2)(e) of the Act.
[39] In all, the Applicant’s reasons for delay were very weak indeed, and they were weak for reasons known to the Applicant prior to making his application.
[40] But these circumstances taken in isolation do not mean the Applicant made the application for an extension of time without reasonable cause (for purposes of s.611(2) of the Act). That is, where the Applicant’s case depends upon the exercise of the tribunal’s discretion across a range of considerations (some involving facts known and others not known to the Applicant at the time of instituting the proceeding), it appears to me to it would be “inappropriate to stigmatise the proceeding as being “without reasonable cause” 9. This is particularly so where there is a contest as to certain critical facts relating to the merits of the substantive application, which remained arguable on its face.
[41] The jurisdiction for purposes of s.611(2)(b) of the Act is wider than that of s.611(2)(a) of the Act.
[42] I am not inclined to re-phrase the words of the Act or to reconstitute them by reference to proceedings in another jurisdiction about unrelated matters. The decision of the High Court in Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010) warns against reconstituting the statutory phrases such as “no reasonable prospect of success”.
58. “How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes”. 10
[43] In my view, considering the circumstances of the proceeding under s.366(2) of the Act as I have discussed above, it seems to me this is not a case where the application (for an extension of time) had no reasonable prospect of success.
[44] The Applicant demonstrably gave considerable weight to the merits of his dismissal, which he considered to be somewhat exceptional in their circumstances, along with his own apparent actions in challenging the decision to dismiss him. Bar his particularly weak case in relation to the reasons for delay, other considerations were at least neutral in relation to his case for an extension of time.
[45] As it came to pass, the Applicant’s case failed and his application was dismissed. But I do not look upon the entirety of the Applicant's case as having no reasonable prospect of success only because part of his case was notably weak, and it ultimately failed when subject to a discretionary exercise of power.
CONCLUSION
[46] In light of these findings I dismiss the application for costs.
SENIOR DEPUTY PRESIDENT
Final written submissions:
2011.
21 June.
1 Transcript of proceedings dated 29 April 2011 at PN 116.
2 Transcript of proceedings dated 29 April 2011 at PN 79.
3 Transcript of proceedings dated 29 April 2011 at PNS 72-76
4 Transcript of proceedings dated 29 April 2011 at PN 71, 81.
5 Transcript of proceedings dated 29 April 2011 at PN 118.
6 Transcript of proceedings dated 29 April 2011 at PN 119-125.
7 Transcript of proceedings dated 29 April 2011 at PN 85.
8 Transcript of proceedings dated 29 April 2011 at PN51 and completed Form F8 application.
9 Kanan v Australian Postal Telecommunications Union (1992) 43 IR 277, pages 264-265
10 Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010) [58] - [60].
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