Mr Peter Walpole v Doyalson-Wyee RSL Club Ltd T/A Doylo

[2016] FWC 1467

[2016] FWC 1467

FAIR WORK COMMISSION

DECISION

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

Mr Peter Walpole
v
Doyalson-Wyee RSL Club Ltd T/A Doylo
(U2015/9319)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 MARCH 2016

Application for relief from unfair dismissal.

[1] The respondent sought an order for costs against the applicant, Mr Peter Walpole. I dismissed the application by order dated 17 February 2016 1. The grounds of the application are extracted below:

“3 Grounds

3.1 The Respondent seeks costs against the Applicant pursuant to section 611(2)(a) and (b) of the Fair Work Act 2009 (Cth).

3.2 On 11 May 2015, the Applicant accepted a voluntary redundancy. There was no termination at the employer’s initiative.

3.3 On 12 May 2015, the Applicant signed a deed of release precluding him from bringing any claim against the Respondent in consideration of being paid $30,000 (the equivalent of 31.5 weeks’ pay). This amount was more than his statutory entitlements.

3.4 On 13 July 2015, the Applicant filed a claim for unfair dismissal, 62 days after he accepted the voluntary redundancy and forty one days out of time, this being a failure to meet the requirements of s394(2). The Respondent submits there were no exceptional circumstances to warrant an extension of time being granted.

3.5 Under section 392 of the Fair Work Act 2009 (Cth), the maximum amount of compensation that may be awarded is 26 weeks’ pay. The Applicant has already been paid 31.5 weeks’ pay upon cessation of employment.

3.6 At no point in time has the Applicant made any offer or attempt to settle the matter.

3.7 On or about 20 August 2015, the Respondent filed its evidence by way of witness statement and submissions.

3.7 (sic) The Applicant’s claim was listed for hearing on 12 November 2015. The Respondent was notified on the morning of the hearing by the Fair Work Commission that the Applicant withdrew his claim on the evening of 11 November 2015.

3.8 The Respondent submits that the Applicant never intended on appearing at the hearing as he considered it an inconvenience and was not genuine about his claim. This is consistent with the Applicant’s correspondence to the Commission on 17 September 2015 saying he was not available to attend the Commission’s originally scheduled hearing date.

3.9 There was no change in the circumstances or the evidence from the date the Respondent filed its statements and submissions in August 2015 to explain why the Applicant chose to wait till the night before the hearing to withdraw his claim.

3.10 The Respondent has spent a significant amount of time, resources and money on a claim which it submits never had any prospects of success given the above factors and was brought vexatiously in an attempt to illicit money from the Respondent and waste its resources.”

[2] The respondent further articulated the basis of its application in correspondence dated 10 December 2015 which is set out below:

“2. The respondent does not seek costs specifically with respect to its appearance on 6 August. Rather, costs are sought on the basis that the claim by the applicant should not have been made at all, and in the alternative that the claim should have been discontinued once the respondent’s evidence was filed on 20 August 2015.

Instead the applicant kept the matter on foot until the eleventh hour, doing very little by way of pursuing or investing in his claim in the meantime (he did not even file a witness statement). The Respondent was put to significant expense to properly prepare and participate in the hearing, only to be told on the day, after the respondent travelled to Sydney from the Central Coast that the applicant had withdrawn his claim the night before.

3. We request that this matter be listed for Mention if the Fair Work Commission consider appropriate.”

[3] On the first occasion this application was listed neither party was ready to proceed. The respondent did not attend with its witness as to disputed facts. Subsequently, I did not agree to hear this application by transcribed telephone or video link. Having observed the applicant at the first listing I did not think that I would be able to resolve disputed questions of fact by that method.

[4] The application was listed on a second occasion at 9.00 am on 12 November 2015.

[5] On Tuesday, 10 November 2015 at 5:44pm, when chambers were unattended, the applicant forwarded email correspondence that stated that he would not be able to attend the hearing and he had “no other alternative to let this go”.

[6] On Wednesday, 11 November at 12 noon I directed my associate to write to the applicant and ask him to confirm if it was his intention to discontinue the application. If this was the case I required a Notice of Discontinuance to be filed before the hearing on 12 November 2015. No Notice of Discontinuance was filed.

[7] On Wednesday, 11 November at 9:28pm, when chambers were unattended, Mr Walpole advised by email correspondence “as stated yesterday in my letter unfortunately I have to discontinue this matter”. No Notice of Discontinuance was attached.

[8] On Thursday 12 November 2015 at 8.00am the email correspondence of the previous evening from Mr Walpole was first seen by staff in chambers. Staff immediately attempted to call the respondent and the respondent’s representative to prevent them coming to the hearing. The representatives of the respondent were already on their way to the hearing. The hearing did not proceed.

[9] Mr Walpole’s wife responded to the application for costs on his behalf. She provided a two-page submission dated 27 January 2016. Mr Walpole has literacy difficulties.

[10] I am not persuaded that Mr Walpole’s application was vexatious or frivolous from commencement.

[11] There is no basis on which I could be persuaded that I should order costs against the applicant in relation to the first hearing date. Neither party was in a position to proceed. The respondent did not have a witness to the facts on which it relied to establish its jurisdictional objection.

[12] The listing of the application on 12 November 2015 was not vacated because I was not sufficiently satisfied that, given the level of the applicant’s understanding, he intended to discontinue his application.

[13] The applicant is not a sophisticated person. He is not young and he has literacy difficulties. A decision to order costs is discretionary. In the circumstances of this application I was not prepared to order the costs of this application be paid by the applicant. I refused the application and issued the order of 17 February 2016.

SENIOR DEPUTY PRESIDENT

 1   PR577079

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