[2018] FWC 1657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Robert Fox
v
Uniting T/A Caroona Aged Care, Uniting
(C2017/4775)

COMMISSIONER JOHNS

SYDNEY, 1 JUNE 2018

Application for costs - Fair Work Act 2009 s.611

Introduction
[1] This decision is about whether Robert Fox should be held liable for the costs of Uniting T/A Caroona Aged Care, Uniting (Uniting) which it incurred in defending an action commenced by him (Fox Application).

[2] People who incur legal costs in a matter before the Fair Work Commission (Commission) generally pay their own costs. 1 However, in a s.739 matter such as the present matter, the Commission has a discretion to order one party to the matter to pay the other party’s legal or representational costs, but only where the Commission is satisfied the matter was commenced:

a) vexatiously or without reasonable cause, or

b) with no reasonable prospect of success. 2

[3] The Fox Application was made under s.739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute with Uniting concerning an alleged misclassification of Mr Fox’s level under the UnitingCare Aged Care Residential & Community Services Agreement (NSW) 2014-2017 (Agreement).

[4] In short, Mr Fox alleged that Uniting had failed to pay him correctly having regard to his skills and experience. The Applicant claimed he was underpaid the sum of $4,772.51 (including a superannuation contribution of $414.30).

[5] On 9 January 2018 the Fox Application was dismissed by Order of the Commission 3 after Uniting made an application to the Commission pursuant to s.587 of the FW Act due to the repeated failure of Mr Fox to comply with directions of the Commission.

[6] It is important to note that the Fox Application was dismissed solely on the basis that it had no reasonable prospects of success because Mr Fox failed to prosecute the matter. 4

Background

[7] The background can be summarised as follows:

a) On 29 August 2017 the Fox Application commenced.

b) Initially the matter was listed for conference on 7 September 2017. However, it was necessary to re-list it for 13 September 2017. The matter did not resolve.

c) The Fox Application was set down for hearing on 24 October 2017. Directions were made for the filing and service of materials. The Applicant was directed to file his outline of submissions, witness statements and documentary material by 5.00pm on Monday 2 October 2017 (Directions),

d) The Applicant did not comply with the Directions.

e) On 3 October 2017 the Commission wrote to the Applicant about the noncompliance. There was no response to the correspondence.

f) On 16 October 2017 the Commission again wrote to the Applicant. He was required to advise the Commission whether he wanted to continue the Fox Application. He was required to do so by 5.00 pm on Wednesday, 18 October 2017 (Continuation Query).

g) The Applicant did not respond to the Continuation Query.

h) On 24 October 2017, the Respondent filed its application pursuant to s.587 of the FW Act (Respondent’s Dismissal Application).

i) On 24 October 2017, the Commission contacted the Applicant by telephone. The Applicant stated that he had been in Darwin and had not been checking his email account.

j) On 25 October 2017, the Respondent’s Dismissal Application was programmed and tentatively listed for hearing on 5 December 2017. The Applicant was directed to file its materials by no later than Wednesday 22 November 2017 (Dismissal Directions).

k) The Applicant did not comply with the Dismissal Directions.

l) On 1 December 2017, the Respondent requested that the Commission determine the Respondent’s Dismissal Application on the papers. The Applicant was directed to file any objection to the Respondent’s Dismissal Application being determined on the papers by 12:00pm 4 December 2017.

m) The Applicant did not object to the Respondent’s Dismissal Application being decided on the papers.

n) On 9 January 2018 the Fox Application was dismissed.

o) Later that same day my Associate called Mr Fox to confirm receipt of the decision. Mr Fox did not answer and a voicemail was left alerting him to the decision.

The Costs Application

[8] On 23 January 2018, Uniting made an Application for Costs against Mr Fox pursuant to s.611 of the FW Act. Uniting seeks $10,643.00 in accordance with Schedule 3.1 of the Fair Work Regulations 2009 (Cth) in addition to disbursements of $389 (i.e. a total of $11,032.00) (Costs Application).

[9] Uniting maintained that Mr Fox should pay its costs as claimed because:

a) the Fox Application included a copy of legal advice advising him against making the application, and

b) Mr Fox repeatedly failed to comply with directions from the Commission.

[10] Uniting contended that these factors demonstrated that Mr Fox commenced the proceedings vexatiously or without reasonable cause. Uniting further contended that it should have been reasonably apparent to him that the Fox Application had no reasonable prospect of success.

[11] On 24 January 2018 my Associate called Mr Fox to confirm that he was aware of the Costs Application. Mr Fox did not answer. A voicemail was left advising that a costs application had been made against him.

[12] On 31 January 2018 my Associate made a further telephone call to Mr Fox. During this call, Mr Fox stated that he had not been receiving emails regarding the matter. My Associate then sent through a test email to Mr Fox’s nominated email address. Mr Fox confirmed that he received the test email whilst he was on the phone. For this reason I am satisfied that, at all times, the Commission was using the correct email address when corresponding with Mr Fox.

[13] On 1 February 2018 Mr Fox was sent a hard copy of the entirety of the Commission’s file and a chronology which outlined the Commission’s interactions with Mr Fox since the last email it received from him.

Submissions

[14] Uniting made the follow written submissions in support of their application:

“Respondent’s Outline of Argument on Costs

1. The respondent (Applicant for Costs) seeks an order pursuant to s.611 of the Fair Work Act 2009 (Cth) ('the Act') that the applicant (Respondent for Costs) pay the respondent's costs of the proceedings.

Background to the matter

2. The applicant commenced proceedings in the Fair Work Commission alleging that he had been underpaid by the respondent in the sum of $4,772.51 (including a superannuation contribution of $414.30) ('Originating Application').

3. The applicant alleged that the respondent had underpaid him for a period of 4 months in breach of the Uniting Care Aged Care Residential & Community Services Agreement (NSW) 2014-2017 ('Uniting EA').

4. The respondent made an application to dismiss the Originating Application pursuant to s.587 of the Act ('Application to Dismiss').

5. On 9 January 2018 the Originating Application was dismissed.

6. The respondent submits that a costs order pursuant to s.611 of the Act ought to be entered in favour of the respondent on the following basis:

6.1. The applicant made the Originating Application vexatiously and/or without reasonable cause; and

6.2. It should have been reasonably apparent to the applicant that the Originating Application had no reasonable prospects of success.

7. In making the application for costs the respondent relies on the following documents, filed in the proceedings:

7.1. Statement of Sarah Tonkin, Human Resources Business Partner of the respondent dated 16 October 2017;

7.2. Statement of Susan Clark, Facility Manager of the respondent, dated 16 October 2017;

7.3. Statement of Victoria Sales, Employee Relations Lead of the respondent, dated 8 November 2017.

7.4. Respondent's Submissions filed on 16 October 2017;

7.5. Respondent's Outline of Argument to dismiss the proceedings filed on 8 November 2017.

Vexatious and without reasonable cause

8. The respondent submits that the Originating Application is vexatious and/or without reasonable cause.

9. The respondent notes the following chronology of events:

9.1. On 20 February 2017 the applicant was re-classified and paid as a Registered Nurse, Level 5. The re-classification and back payment took effect from 12 December 2016;

9.2. On 22 March 2017 the applicant emailed the respondent and requested that he be paid as a Registered Nurse, Level 5 from the commencement of his employment, being 25 July 2016;

9.3. On 29 March 2017 Sarah Tonkin, Human Resources Business Partner of the respondent, emailed the applicant and indicated that as the respondent had not received the evidence of the applicant's new classification within 3 months of his initial engagement the applicant was not eligible to have his new classification backdated to the commencement of his employment on 25 July 2017. Ms Tonkin also referred and extracted clause 17.4 of the Uniting EA for the applicant;

9.4. It is apparent that the applicant then sought legal advice. On 9 August 2017 the respondent received a letter from Somerville Laundry Lomax Solicitors requesting that the applicant be back paid;

9.5. On 17 August 2017 the respondent wrote to the solicitors for the applicant outlining the basis upon which the applicant was not entitled to receive the back payment of wages from the commencement of his employment. The respondent also indicated that should the applicant be able to demonstrate that documentary evidence of his service hours was provided to the respondent within the first 3 months of his engagement then the respondent would review the matter. The respondent received no response to its correspondence;

9.6. On 29 August 2017 the applicant commenced proceedings seeking the back payment of wages to the commencement of his employment;

9.7. In his Originating Application the applicant also attached a letter of legal advice received from his solicitors, Somerville Laundry Lomax, advising the applicant that he was not entitled to receive any back payment of wages. Despite receiving this legal advice the applicant still commenced proceedings in the Fair Work Commission.

10. The applicant has therefore been on notice from 29 March 2017 that he had no entitlement to back pay. In spite of being advised by the respondent and also obtaining independent legal advice that the applicant had no entitlement to back pay, the applicant then vexatiously and without reasonable cause commenced proceedings.

Without Reasonable Cause

11. In Keep v Performance Automobiles Pty Limited[2015] FWCFB 1956 [17] ('Keep'), the Full Bench summarised the key elements of when an application is made without reasonable cause as follows:

'The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application 'without reasonable cause' within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgment, that is, 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless' or 'discloses a case which the Court is satisfied cannot succeed.'

12. The respondent says that based upon the facts known to the applicant at the time of instituting the proceedings there was no substantial prospects of success. Specifically the respondent notes the following:

12.1. The applicant had been provided with a copy of the relevant provisions of the Uniting EA;

12.2. The applicant had been advised by the respondent that he would need to be able to demonstrate that documentary evidence of his service hours was provided to the respondent within the first 3 months of his engagement for Clause 17 of the Uniting EA to apply and to receive any back payment;

12.3. Prior to the commencement of the Originating Application the applicant had received independent legal advice that he was unable to sustain a claim for the back payment of wages as he had failed to provide the requisite documentary evidence.

13. The respondent submits that in all of the circumstances the Commission ought to be satisfied that the applicant made the Originating Application without reasonable cause and when examining the facts known to the applicant at the time of instituting the proceedings there was no substantial prospect of success.

The Originating Application is vexatious

14. The respondent also submits that the Originating Application is vexatious.

15. In Qantas Airways Limited v Carter[2013] FWCFB 1811, [17], the Full Bench of the Commission adopted the approach of North J in Nilsen v Loyal Orange Trust (1997) 76 IR 180, 181 ('Orange Trust') in determining when an application is made vexatiously. In Orange Trust, North J stated:

'[The question of whether the proceeding was instituted vexatiously]... looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. 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.'

16. The respondent says that the motive of the applicant in instituting and continuing with the Originating Application is evident in an email from the applicant to the Commission dated 14 September 2017 at 7.24pm where the applicant stated:

' ...I would request this issue to go to the Hearing ...I am hoping that the Hearing will prove that Uniting purposely delayed my pay grade change to deny me of my higher pay level for 3 months, and they should be ordered to pay the additional 3 months for their unnecessary delay.'

17. The respondent notes the following chronology of events:

17.1. The respondent's recruitment is managed through its online system eRecruit;

17.2. eRecruit allows a candidate for employment to view, manage and accept any offers of employment made by the respondent;

17.3. On 5 July 2016 the applicant attended an interview with Ms Susan Clark, the Facility Manager of the Caroona Kalina site of the respondent;

17.4. The applicant provided a number of documents to Ms Clark at the interview none of which stipulated the number of service hours the applicant had completed as a registered nurse;

17.5. On 15 July 2016 Ms Clark made a verbal offer of employment to the applicant.

17.6. On 15 July 2016 the applicant accepted the verbal offer of employment and a written contract of employment or Letter of Offer was generated by the respondent;

17.7. The Letter of Offer dated 19 July 2017 detailed that the applicant was to be classified as a Registered Nurse, Year 1;

17.8. The applicant logged on to the eRecruit system of the respondent and completed the Onboarding Form;

17.9. The Onboarding Form stipulated at question 1.10 that the applicant was to be classified as a 'Registered Nurse Year 1 (NRN1)';

17.10. Question 1.11 of the Onboarding Form stated 'Do you accept this offer as presented to you?' The applicant then selected 'Yes';

17.11. Question 1.11 is a mandatory question of the respondent's eRecruit system and a candidate will not be employed without indicating an acceptance of the employment details stipulated;

17.12. In early December 2016 Ms Clark had a conversation with the applicant. The applicant disputed that he was classified as a Registered Nurse Year 1. Ms Clark advised the applicant to provide documentary evidence to the respondent's Payroll and Human Resources departments so that his classification could be changed;

17.13. On 8 December 2016 the respondent received an email from the applicant on its Infra system enquiring as to how the applicant was to amend his pay classification for the position of registered nurse;

17.14. The applicant was advised to provide documentary evidence of the previous hours which he had performed as a registered nurse;

17.15. On 15 December 2016 the applicant emailed the following documents to the respondent:

17.15.1. A statement of service dated 14 December 2016 outlining the number of service hours completed by Robert Fox;

17.15.2. A statement of service from Queensland Health dated 14 December 2016 outlining the number of service hours completed by Robert Crandell;

17.15.3. A letter from RNS Nursing dated 14 December 2016 outlining the number of service hours completed by Robert Fox (Crandell).

17.16. There was some difficulty in changing the pay classification of the applicant due to the number of surname changes of the applicant;

17.17. The applicant's pay classification was amended on 20 February 2017;

17.18. The applicant then received a back payment of wages for the period from 12 December 2016 -19 February 2017 being the time which it took for the respondent to re-classify the applicant.

18. Contrary to the assertion of the applicant in the email dated 14 September 2017, there is no evidence before the Commission that the respondent 'purposely delayed' the change to the applicant's pay grade. Indeed the applicant's pay grade was adjusted as soon as the surname of the applicant could be confirmed by the respondent, being February 2017.

19. The applicant in any event received a back payment of wages for the period from 12 December 2016 – 19 February 2017, being the time which it took for the respondent to re-classify the applicant. Noting that the applicant had not provided the requisite documentary evidence to the respondent until 15 December 2017 to confirm his hours of service.

20. The respondent submits that the applicant's motivation in instituting the proceedings is clear from the email dated 14 September 2017. The applicant instituted the proceedings to embarrass the respondent and/or gain a collateral advantage. In his email the applicant does not suggest that he is entitled to the back payment of wages in accordance with the terms of the EA, nor does he maintain that the necessary documentary evidence was provided by him in the first 3 months of his employment. The applicant desired simply to prosecute the matter on the basis that he was dissatisfied with the respondent's delay in processing the back payment of wages.

21. The respondent submits that the Commission ought to be satisfied that the predominant purpose of the applicant in commencing the proceedings was to embarrass the respondent and obtain a further 3 months of pay at a higher rate in circumstances where the applicant was aware that there was no basis for his claim in fact and/or in law.

22. The respondent submits that when adopting the approach of the Full Bench in Qantas Airways it must be concluded that the applicant instituted the proceedings vexatiously.

No reasonable prospects of success

23. The respondent further submits that it should have been reasonably apparent to the applicant that the Originating Application had no reasonable prospect of success.

24. In Keep the Full Bench summarised the test to be applied in s.611(2)(b} of the Act:

'As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that 'it should have been reasonably apparent' to that person that their application had 'no reasonable prospect of success'. The expression 'should have been reasonably apparent' in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant's subjective belief.'

25. The Full Bench in Baker v Salva Resources Pty Limited also held the following:

'The concepts within s.611(2)(b) "should have been reasonably apparent" and "had no reasonable prospect of success" have been well traversed:

• "should have been reasonably apparent" must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis rather than a subjective test; and

• a conclusion that an application "had no reasonable prospect of success" should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable.'

26. The respondent submits that when examining the respondent's evidence in the matter, it must have been reasonably apparent to the applicant that the Originating Application had no prospects of success. The applicant had received written legal advice (which then formed part of his Originating Application) that advised the applicant he was not entitled to the monies which became the subject of the proceedings commenced on 29 August 2017.

27. Further, the applicant was advised by the respondent that he had no entitlement to back pay on 29 March 2017. The respondent also referred and extracted clause 17.4 of the Uniting EA for the applicant.

Discretionary nature of costs

28. Whilst the respondent notes that the power to award costs is discretionary, even in circumstances where a limb of s.611 of the Act is satisfied, the respondent respectfully submits that it is appropriate that costs be ordered in the present matter.

29. In addition to being on notice, prior to the commencement of proceedings, that his claim was untenable the applicant has been delinquent in his management of the matter and continually failed to comply with directions and respond to correspondence from the Commission. Briefly, the respondent notes the following:

29.1. On 13 September 2017 the applicant was directed to either:

29.1.1. Contact the chambers of Commissioner Johns to request that the matter be programmed for hearing; or

29.1.2. File a Notice of Discontinuance.

29.2. On 14 September 2017 at 7.24pm the applicant emailed the chambers of Commissioner Johns requesting that the matter be listed for hearing.

29.3. On 18 September 2017 the applicant was directed to file and serve an outline of submissions, witness statements and other documentary material by 2 October 2017.

29.4. The applicant did not file any submissions, witness statements and other documentary material in accordance with the directions.

29.5. On 16 October 2017 the applicant was directed to advise the Commission by 5.00pm on Wednesday 18 October 2017 whether he wished to continue with his Originating Application. The applicant did not respond to the email.

29.6. On 18 October 2017 the listing of the matter was cancelled and on 24 October 2017 the respondent made an application to dismiss the proceedings.

29.7. On 25 October 2017 the matter was listed for hearing of the dismissal application on 5 December 2017. The following directions were also issued:

29.7.1. By no later than Wednesday, 8 November 2017, the applicant for dismissal (Uniting T/A Caroona Aged Care) must file in the Commission and serve on the respondent an outline of argument, statements of evidence or other documents the applicant intends to rely upon in support of the application.

29.7.2. By no later than Wednesday 22 November 2017, the respondent for dismissal (Mr Robert Fox) must file in the Commission and serve on the applicant an outline of argument, statements of evidence or other documents the respondent intends to rely on in opposition to the application.

29.7.3. By no later than Wednesday, 29 November 2017 the applicant for dismissal (Uniting T/A Caroona Aged Care) must file in the Commission and serve on the respondent any materials in reply.

29.7.4. Unless the parties advise that the matter can be dealt with on the papers, the matter will be listed for hearing at 4.30pm on Tuesday, 5 December 2017 in Sydney with Video Link to Canberra and Darwin.

29.8. The applicant failed to comply with the directions and on 1 December 2017 the respondent requested that the matter be decided on the papers. The applicant filed no objection to the matter being dealt with on the papers.

30. The respondent says that not only did the applicant commence untenable and vexatious proceedings he then failed to comply with directions and/ or respond to correspondence from the Commission. As a result of the applicant's delinquency in the matter the respondent has incurred approximately $18,428.30 in unnecessary costs. In all of the circumstances, the respondent submits that the discretion to order costs ought to be exercised by the Commission in the matter.

Summary of Respondent’s Position

31. The respondent respectfully submits that a costs order ought to be made in favour of the respondent against the applicant on the basis that the Originating Application was made vexatiously, without reasonable cause and that it should have been reasonably apparent to the applicant that there were no reasonable prospects of success.

[15] In Response Mr Fox sent correspondence to the Commission. He wrote:

“Dear Sir,

My argument of my original claim was based on the fact that I was a Veteran Nurse of 12 years being paid Year-1wages. My attempt to mitigate these facts were constantly thwarted by the Uniting Care Administration, correspondence through their Intranet was never revealed, office staff at Caroona prevented an official enquiry being made, thus delaying my claim for up to 4 months. Only after my continued efforts to claim my lost wages Uniting decided to back-pay me for only 3 of the 7 months. Noting, I was interviewed and hired on the basis of having experience. Hiring a Year-1Nurse would be a whole different hiring process with protocols directed toward a Graduate Nurse. What was confusing for me was how Uniting Care initiated the enterprise agreement. As shown in your discovery I answered a question that stated that I was a Year-1Nurse (even though this is contrary to fact, my CV, interview with Uniting, and hiring). The procedure of interview/hiring with the Nursing Manager and Asst. Nursing Manager took over an hour. A lot of detail was sought about my experience, and how this would relate to the position being offered. Followed by a few 8 hr. shifts for orientation before I started my work at the facility. Ticking the boxes on the enterprise agreement happened in the middle of my shift at work, and lasted only a few minutes. It was more like a speed test. The point in question that is in the middle of numerous questions of the enterprise agreement was misinterpreted. I thought I was ticking the fact that on this position I was working as a Division-1Nurse (not a Year-1Nurse).

I felt that I had good prospects to succeed in this claim on the facts. I could easily prove that I was an experienced Nurse, I showed this information through the hiring process, this information was examined by officials of Uniting Care (Nurse Manager & Assistant Nurse Manager), and I was hired on the basis that I was an experienced Nurse (not a Year-1Nurse). I was also able to show that I informed Uniting Care of this claim after about 3 months into the job. Uniting took this information, and instead of correcting the error, they put me thru a delay process of up to 4 months. A backlash of this process also made me feel vulnerable with my job. Noting also that I dealt with numerous complaints about my work performance following this correction process to my wages. Because of complaints and harassment toward me I felt my job in jeopardy. I decided to move from the Caroona facility to the neighbouring facility, Kalina, which I already worked part-time, and is also part of Uniting Care. After about a month the harassment started and continued at Kalina, and I eventually resigned my position with Uniting Care.

I have been living with a difficult financial situation since the flood in Lismore on 31/03/2017. The house I was living in went under water. I lost basically everything I own. It's been a big rebuilding process. I filed for Centrelink benefits after leaving Uniting Care, sought psychological help, was directed to file for Workman's [sic] Compensation, and had 3 months off work. At this stage I filed my claim with the Fair Work Commission. I was very disappointed with the outcome of the initial phone Hearings. I needed and planned to seek Legal help to properly manage this Legal claim. I was unsuccessful getting the necessary help. In fact, the Lawyer managing my Workman's [sic] Compensation claim stated that I could file this myself.

Soon after the second phone conference, and being desperate for finances I found employment, and was hired by a Nursing Agency, and flown out of State for nursing contracts. Throughout the timeframe the issue has been heard by the Fair Work Commission I have been away from my home, computer, and unable to stay in contact with this issue. Noting, my ability to manipulate my phone for messages has been limited due to the advanced technology involved (unable to view attachments). I stayed focused on performing well on the job, and only kept phone call communications. My first contact following the second phone conference (Hearing) was when contacted by phone by [name redacted] - Associate to Commissioner Johns OAM on 31/01/2018. I was driving from Adelaide to Lismore at the time (I was in Victoria for the call). My battery was low, and when [name redacted] put me on hold, I was only able to stay in contact for a short time (battery was dead). My car charger is ineffective, and I was unable to continue the conversation at the time.

My submission at this time in defence that no costs should be awarded to the Solicitors to assist Uniting Care with this claim is based on the fact that I had no Legal help, and because of this I was disadvantaged on my original claim, along with the claim for costs. As the Fair Work Commission notes in the Federal Court, "It is apparent from the very terms of s.596 that a party "in a matter before [the FWC]" must normally appear on their own behalf." "The appearance of Lawyers to represent the interests of parties to a hearing runs the very real risk that was intended by the legislature to be an informal procedure will be burdened by unnecessary formality." It is also noted that Commissioner Johns would be asking the other party whether they object to permission being given for a legal representative to appear. As earlier stated this was impossible because of my circumstances at the time. Noted (see Azzopardi v Serco Sodexo Defence Services Pty Limited [2013] FWC 3405) "that it is not uncommon for the Commissioner to reject permission to appear."

In conclusion, I have been disadvantaged by the inclusion of a Lawyer to assist Uniting Care. I was also not given the opportunity to deny the application for the Lawyer to attend on their behalf. When presenting to the Commission (phone conference) none of the people involved in this hiring process were involved in the claim (eg Nursing Manager and Assistant Nursing Manager). This quickly became me against a large multi-billion dollar business, with thousands of employees, and financial resources to hire all the legal representation they need. This issue of claim became the finite points of litigation regarding the enterprise agreement. I would never have the ability to fight a claim like this. I'm a Nurse, not a Lawyer. Beside this, I am still financially distressed. I have no way to pay the costs sought. And I also now know that I should not have filed this claim, or any other without Legal assistance.

Thank you for your time to review this statement.”

[16] By way of a reply Uniting submitted that:

“Respondent’s Reply Outline of Argument on Costs

1. The applicant (Respondent for Costs) has been delinquent in his prosecution of the Originating Application.

2. The applicant has filed no evidence or submissions in the Originating Application or the Application to Dismiss. The applicant now seeks to rely upon correspondence dated 7 February 2018 as the basis upon which costs ought not to be awarded against him. The applicant makes a number of assertions throughout that correspondence which are not borne out by the evidence in the matter. In relation to his prospects of the Originating Application the applicant asserts the following:

2.1. That evidence of his experience was provided to the nursing staff of the respondent during the hiring process;

2.2. That the applicant was mistaken when he accepted and completed the Candidate Onboarding Form;

2.3. That the applicant informed the respondent about his claim about 3 months into his employment;

2.4. That the respondent purposely delayed any back payment to the applicant.

3. The applicant also raises a number of extenuating circumstances as to why costs ought not be ordered which will be dealt with separately below.

Assertions by the Applicant

Evidence of the applicant's experience was provided during the hiring process

4. The applicant has filed no evidence in the Originating Application and yet still asserts that evidence of his experience was provided during the hiring process. The respondent submits that the applicant is not entitled to make such submissions in circumstances where he has not filed any evidence in accordance with the directions issued by the Commission.

5. The respondent's evidence established the following:

5.1. The positions of Registered Nurse with the respondent are not advertised as a particular classification as this is dependent on the service hours of the candidate. Contrary to the assertions of the applicant there is no different hiring process for a Year 1 Nurse or a Year 4 Nurse;

5.2. The applicant provided the following documentation at the interview:

5.2.1. Proof of Identification; and

5.2.2. A current (at the time of the interview) certificate of registration to the Nursing and Midwifery Board of Australia ('Certificate').

5.3. The documentation provided by the applicant during the interview process did not identify the number of service hours performed by the applicant (Paragraph 13-15, Statement of Susan Clark);

5.4. At no stage prior to the commencement of his employment did the applicant provide evidence of his service hours to the respondent (Paragraphs 17, 19 and 21, Statement of Susan Clark).

6. The applicant is simply unable to maintain the assertion that evidence of his service hours was provided during the recruitment process and/or prior to the commencement of his employment.

Applicant mistaken when he completed the Onboarding Form

7. The applicant asserts that he was mistaken when completing the 'Onboarding Form' of the respondent and that:

'The point in question that is in the middle of numerous questions of the enterprise agreement was misinterpreted. I thought I was ticking the fact that on this position I was working as a Division-1 Nurse (not a Year-1 Nurse)'.

8. The Onboarding Form completed by the applicant appears at page 34 of Exhibit 'SC-1' of the Statement of Susan Clark. Contrary to the applicant's assertions, the question regarding the 'Position Description' of the applicant appears at Question 1.10 of the Onboarding Form where the applicant is described as a 'Registered Nurse Year 1'. At Question 1.11, directly below the classification as a Year 1 Registered Nurse, the applicant indicated his acceptance of the offer.

9. In addition, the applicant was advised verbally of the details of the offer of employment by Ms Susan Clark (Para 25-26, Statement of Susan Clark) and also provided with a written Letter of Offer. The Letter of Offer stipulated that the applicant would be employed as a Registered Nurse- Year 1 and employed pursuant to the UnitingCare Aged Care Residential & Community Services Agreement (NSW) (2014-2017) ('Uniting EA') (Para 27-30, Statement of Susan Clark).

10. Irrespective of whether the applicant was mistaken in his completion of the Onboarding Form, he had numerous opportunities to rectify his pay classification at other stages during the recruitment process or after commencing employment with the respondent. Further the respondent notes that, in accordance with clause 17.4 of the Uniting EA, the onus is on the applicant to provide documentation confirming the number of service hours he has completed.

11. Finally the respondent notes that a copy of the Onboarding Form was supplied to the applicant on 11 September 2017, prior to the telephone conciliation (Para 9-10, Statement of Victoria Sales). The applicant was therefore fully aware that he had made a mistake on the Onboarding Form and accepted to be paid as a Registered Nurse, Level 1 when he requested that these proceedings be set down for hearing. The respondent submits that this is further evidence that the applicant instituted the proceedings vexatiously.

The applicant informed the respondent of his claim about 3 months into his employment

12. The applicant did not inform the respondent of his claim 'after about 3 months into the job' and this submission of the applicant ought to be rejected.

13. The applicant commenced employment with the respondent on 25 July 2016 as a casual registered nurse. The evidence of the respondent also established the following:

13.1. On 8 December 2016 the applicant lodged a query with the respondent regarding his rate of pay (Para 8, Statement of Sarah Tonkin);

13.2. On 13 December 2016 the applicant was telephoned by the respondent and advised to obtain statements of service from his previous employers which detailed the number of service hours he had worked. The applicant was then advised to forward these documents to the relevant department of the respondent (Para 9, Statement of Sarah Tonkin);

13.3. On 15 December 2016 the respondent received 3 documents from the applicant which provided evidence of the applicant's service hours. The documents were all dated 14 December 2016 (Para 11, Statement of Sarah Tonkin).

14. The applicant's version of events, of which no evidence has been provided, is directly contradicted by the respondent's evidence. Further, the documentary evidence relied upon by the applicant to establish the number of service hours worked is dated 14 December 2016. There is therefore no merit to the applicant's claim that he informed the respondent of his claim 'about 3 months into the job.' The respondent only received evidence of the applicant's service hours approximately 5 months after he commenced employment.

Respondent purposely delayed the back payment to the applicant

15. There is simply no evidence to substantiate the allegation that the respondent purposely delayed any back payment to the applicant and this scurrilous assertion is rejected by the respondent.

16. The statements of service provided by the applicant contained a number of different surnames. There was therefore a delay in processing the applicant's request for a change of pay classification as a result of the different surnames (Para 15, Statement of Sarah Tonkin). The change of pay of the applicant was processed on 20 February 2017. The respondent acknowledged the delay and for the period from 12 December 2016-19 February 2017 the applicant received a back payment of wages.

17. The applicant's assertion that the delay by the respondent in altering his rate of pay was deliberate is without merit. Further, the delay in making the payment did not in any way affect the entitlement to be back paid to the commencement of employment because the applicant did not lodge his evidence of service until after 3 months post commencing employment.

18. It is also without merit that the applicant asserts that 'correspondence through their Intranet was never revealed, office staff at Caroona prevented an official enquiry being made, thus delaying my claim for up to 4 months'. The evidence from the respondent clearly demonstrated that the first enquiry lodged by the applicant through the Infra Log system of the respondent was received on 8 December 2016. Further the Service Manager at the Caroona Kalina site ('Caroona') gave evidence that the first time the applicant approached the administration office regarding his underpayment claim was in December 2016.

19. The assertion by the applicant that the respondent purposely delayed the back payment of wages, concealed correspondence and/ or that its staff prevented an official enquiry is outrageous and ought to be rejected.

Extenuating Circumstances of the Applicant

20. The applicant also makes a number of submissions, of which he has provided no evidence, of the following extenuating circumstances:

20.1. The applicant received 'no Legal help' with his claim;

20.2. The applicant was away for work and unable to prosecute his claim.

The applicant received 'no Legal help' with his claim

21. In its Outline of Argument on Costs, the respondent noted the following chronology of events:

21.1. On 20 February 2017 the applicant was re-classified and paid as a Registered Nurse, Level 5. The re-classification and back payment took effect from 12 December 2016;

21.2. On 22 March 2017 the applicant emailed the respondent and requested that he be paid as a Registered Nurse, Level 5 from the commencement of his employment, being 25 July 2016;

21.3. On 29 March 2017 Sarah Tonkin, Human Resources Business Partner of the respondent, emailed the applicant and indicated that as the respondent had not received the evidence of the applicant's new classification within 3 months of his initial engagement the applicant was not eligible to have his new classification backdated to the commencement of his employment on 25 July 2017. Ms Tonkin also referred and extracted clause 17.4 of the Uniting EA for the applicant;

21.4. It is apparent that the applicant then sought legal advice. On 9 August 2017 the respondent received a letter from Somerville Laundry Lomax Solicitors requesting that the applicant be back paid;

21.5. On 17 August 2017 the respondent wrote to the solicitors for the applicant outlining the basis upon which the applicant was not entitled to receive the back payment of wages from the commencement of his employment. The respondent also indicated that should the applicant be able to demonstrate that documentary evidence of his service hours was provided to the respondent within the first 3 months of his engagement then the respondent would review the matter. The respondent received no response to its correspondence;

21.6. On 29 August 2017 the applicant commenced proceedings seeking the back payment of wages to the commencement of his employment;

21.7. In his Originating Application the applicant also attached a letter of legal advice received from his solicitors, Somerville Laundry Lomax, advising the applicant that he was not entitled to receive any back payment of wages. Despite receiving this legal advice the applicant still commenced proceedings in the Commission.

22. It is simply false that the applicant had no legal assistance with his claim. The applicant received legal assistance and advice prior to the commencement of proceedings. That legal advice was that there was no basis for the applicant's claim for the back payment of wages prior to the production of documentation evidencing his service hours. As outlined above, the documentation evidencing the service hours was provided by the applicant on 15 December 2016. As the applicant did not provide the requisite documentation in accordance with clause 17.4 of the Uniting EA 'within three (3) months of the employee's initial engagement' there was simply no basis for the applicant's claim.

23. The simple fact remains that the applicant received legal advice in respect of his claim and that legal advice was that the applicant was not entitled to make the claim which subsequently became the subject of the Originating Application.

The applicant was away for work and unable to prosecute his claim

24. The applicant asserts the following:

'Soon after the second phone conference, and being desperate for finances I found employment, and was hired by a Nursing Agency, and flown out of State for nursing contracts. Throughout the timeframe the issue has been heard by the Fair Work Commission I have been away from my home, computer, and unable to stay in contact with this issue.'

25. The respondent notes the following timeline of events:

25.1. On or about 13 September 2017 at 3.00pm the matter was listed for telephone conciliation before Commissioner Johns;

25.2. On 13 September 2017 the respondent received an email from the chambers of Commissioner Johns indicating that the applicant was to seek further legal advice in the face of the documents provided by the respondent. The applicant was also directed that by 5.00pm on 20 September 2017 he must file a Notice of Discontinuance or request that the matter be programmed for hearing;

25.3. On 14 September 2017 at 7.24pm the applicant emailed the Commission requesting that the matter proceed to hearing;

25.4. The applicant filed no evidence or submissions in the matter;

25.5. On 24 October 2017 the respondent filed an Application to dismiss the matter pursuant to s.587.

26. Therefore, despite specifically requesting that the matter proceed to hearing and with directions issued in the matter some 4 days after his request, the applicant did not check his emails or make any attempt to properly prosecute the matter.

27. Further, on 24 October 2017 the Associate to Commissioner Johns contacted the applicant by telephone. The notes of the telephone conversation outlined in the email from the Associate of Commissioner Johns to the applicant dated 1 February 2018 at 1.56pm state the following:

'Called Applicant to confirm he has been receiving emails. Applicant stated that he is in Darwin. Told applicant to check his emails and that he had missed filing for the hearing that originally was supposed to be for today, and that it had been vacated, and, that the Respondent had made an application for the dismissal of the matter.'

28. The applicant was therefore on notice from at least 24 October 2017 that the respondent intended to make an application to dismiss his claim and yet still continued his negligent management of the matter. At no stage did the applicant attempt to withdraw his claim and instead simply ignored the correspondence from the Commission.

The claim had good prospects of success

29. In the letter dated 7 February 2018 the applicant states 'I felt I had good prospects to succeed in this claim on the facts.' The respondent respectfully submits that this evidence and submission cannot be substantiated by the objective evidence. As noted above, the applicant annexed to the Originating Application a copy of the advice he received from his solicitors that his claim had no substantial prospects of success. It is therefore ludicrous to now suggest that, from a subjective perspective, the applicant had formed the view when he commenced proceedings he had substantial prospects of success or, from an objective perspective, that the claim had substantial prospects of success.

30. The respondent says that this submission must be rejected and a costs order awarded in favour of the respondent on the basis that it ought to have been reasonably apparent to the applicant that the Originating Application had no reasonable prospects of success.

31. Finally, the respondent notes that the applicant submits that he is financially distressed and has no way to pay the costs sought. Whilst this is certainly relevant to any determination of the Commission, the respondent respectfully submits that it should not be determinative. Irrespective of the asserted financial difficulties, the applicant commenced these proceedings against legal advice. The applicant was aware that there was no basis for the proceedings in fact or in Jaw, as evidenced by his email dated 14 September 2017 and yet still requested that the matter be listed for hearing. The applicant was then delinquent in his management of the case and had no regard to the substantial legal costs which he forced the respondent to incur. Finally, the respondent notes that there is no evidence of any alleged financial difficulties of the applicant other than an unsworn letter. The respondent respectfully submits that irrespective of any alleged financial difficulties, costs ought to be awarded against the applicant.

Summary of the Respondent’s Position

32. The respondent submits that based upon the facts known to the applicant at the time of commencing the Originating Application it was obvious that there were no substantial prospects of success and that the Originating Application was so obviously untenable that it could not possibly succeed.

33. The respondent submits that it must also be concluded that the applicant commenced the Originating Application vexatiously and without reasonable cause.

34. The applicant has made a number of submissions which are not borne out by the evidence before the Commission. In the respondent's respectful submission the applicant has provided no reasoning as to why costs ought not to be awarded against him.

The Costs Hearing

[17] The Application for Costs was listed for hearing on 20 March 2018.

[18] In advance of the hearings the parties filed materials. Consequently, in coming to this decision the Commission, as presently constituted, has had regard to the following materials:

DESCRIPTION	EXHIBIT NO.
Tendered by Mr Fox
Letter From the Applicant to the Commission Dated 07/02/2018	A1
Letter From the Applicant to the Commission Regarding Representation Dated 13/03/2018	A2
Tendered by Uniting
Uniting’s Brief Outline of Submissions Regarding Representation Dated 16/03/2018	N/A
Uniting’s Outline on Arguments on Costs dated 31/01/2018	R1
Witness Statement Of Ms A Willits dated 31/01/2018	R2
Uniting’s Reply Outline of Arguments dated 21/02/2018	R3
Documents filed by Uniting in the Fox Application
Statement of Ms Susan Clark date 16 October 2017	N/A
Statement of Sarah Tonkin, Human Resources Business Partner of the respondent dated 16 October 2017	N/A
Statement of Victoria Sales, Employee Relations Lead of the respondent, dated 8 November 2017.	N/A
Respondent's Submissions filed on 16 October 2017.	N/A
Respondent's Outline of Argument to dismiss the proceedings filed on 8 November 2017.	N/A

[19] As a preliminary matter, the parties were invited to make submissions about Uniting’s application to be represented by a lawyer under s.596 of the FW Act. 5 I subsequently granted permission under s.596(2)(a) because I was satisfied that the Costs Application was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed Uniting to be represented.6

[20] I began the costs hearing by asking Mr Fox some preliminary questions about the recruitment process of Uniting. Mr Fox confirmed that:

a) Uniting was recruiting a registered nurse to perform night duties; 7

b) a first year nurse would not be able to complete night duties due to inexperience; 8

c) he provided his CV to Uniting prior to commencing employment; 9

d) his CV contained numerous registered nursing positions that he had held from 2006 onwards; 10

e) he was asked questions about his nursing history in the interview on 5 July 2016; 11

f) he received a verbal offer of employment with Uniting on 15 July 2016; 12 and

g) Uniting did not ask for his service hours, notwithstanding the fact they had been put on notice that he had been employed as a registered nurse for more than 10 years. 13

[21] Ms Willits then cross-examined Mr Fox.

[22] The Commission’s attention was drawn to an email from Mr Fox dated 14 September 2017 where he requested the matter proceed to hearing. 14 Ms Willits argued that this showed the state of mind of Mr Fox when making the Fox Application. Noting that the Fox Application was commenced roughly 2 weeks earlier (on 29 August 2017) I reject Ms Willit’s contention that the 14 September 2017 email (sent two weeks later) showed Mr Fox’s state of mind at the time he made the application.15

[23] Ms Willits contended that at no stage during:

a) the costs hearing,

b) the originating application,

c) the application to dismiss,

did Mr Fox provide any evidence that he provided his service hours to Uniting. 16 I think that misses the point of the unfairness that Mr Fox complained about (i.e. that he was offered an employment contract as a first year registered nurse when Uniting had received a CV demonstrating that he had over 10 years of experience).17

[24] I asked Mr Fox about his state of mind when making the original application. I asked him why it was not unreasonable to ignore the legal advice he had received. He replied: 18

“I don't think it was actually advice on the facts that I had. Basically it was not from a lawyer's advice. This is from a receptionist at the lawyer's office, which I've never been able – Rob Warren, I've never communicated with him. Their firm is handling something different from this, it's on a worker's compensation. So I didn't give much validity to that advice, obviously.

I thought I was able to come up with the information to prove that this was done a lot earlier than was stated, and what these decisions were made on. I think they basically made their decision on correspondence with Uniting Care. Uniting Care told them their stance, and they just took it – that was their advice, and that's what they gave me.

They were asking for my back-payment, and Uniting Care said no on whatever basis. Then they relayed that to me but I didn't think that was valid because I was able to show proof, I would be able to have this backdated a lot further. Because I did initiate this a lot earlier than Uniting Care says.”

[25] In Reply, Ms Willits stated:

“Commissioner, the only thing that I can say in reply to the points that Mr Fox has just raised is that the advice which he is given prior to the commencement of proceedings, is quite clearly legal advice. I don't think that there can be any submission made that it is the advice of a receptionist at the firm of Somerville Laundry and Lomax.

In terms of the coming up with the evidence a lot earlier, in my respectful submission that still hasn't answered the question that the Commission has to deal with, which is when instituting these proceedings what was the mindset – or one of the questions, in my respectful submission, that the Commission has to deal with, which is what was the mindset of the applicant. It appears that the applicant quite clearly understood that in December 2016 that was the first time that he had provided the respondent with the requisite service hours in accordance with clause 17 of the enterprise agreement.

He had not, prior to that time, provided evidence of his service hours. In my respectful submission, what Mr Fox has just submitted, and the email dated 14 September 2017, makes it quite clear that what he is hoping to gain is a collateral advantage by bringing these proceedings. He's aware that there is no basis in fact or in law for these proceedings at the time of instituting them.”

[26] I explored with Ms Willits whether there may indeed be a basis for commencing the proceedings given that, from Mr Fox’s perspective, his employer had been on notice that he was an experienced nurse and yet had not made any enquiries regarding his service hours. 19 I also explored why “reasonable prospects of success” could not be taken to mean “reasonable prospects of success of achieving an outcome through mediation or conciliation” given that in this case the enterprise agreement allowed only for conciliation and mediation.20

[27] At the conclusion of the costs hearing Uniting abandoned its contention that the Fox Application was commenced vexatiously. However, Uniting maintained that the Fox Application was commenced without reasonable cause and that it should have been reasonably apparent to Mr Fox that there were no reasonable prospects of success. 21

Legislation

[28] Section 611 of the Act is as follows:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC 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: The FWC can also order costs under sections 376, 400A, 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).”

Consideration

[29] In coming to this decision I have had regard to all that has been submitted in advance of and in opposition to the Costs Application.

[30] The principles relevant to determining an application under s.611 were summarised in the Full Bench decision of Keep v Performance Automobiles Pty Ltd: 22

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter Health Great Health and Wellbeing (Church). Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgement, that is, ‘so obviously untenable that it cannot possibly succeed’.

[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.

[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170 CJ(1) of the Workplace Relations Act 1996:

“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.”

Was the Fox Application commenced vexatiously (s.611(2)(a))?

[31] Uniting abandoned the submission that the Fox Application was commenced vexatiously.

[32] In any case I am not satisfied that the Fox Application commenced vexatiously. There was simply no evidence that Mr Fox made his application in an attempt to harass Uniting. There was no evidence embarrass Uniting. All of this was conceded by Ms Willetts. 23 There was also no evidence that Mr Fox was seeking to gain a collateral advantage. He was genuinely aggrieved by the failure of Uniting to pay him in accordance with his qualifications from the date that his employment commenced. He was seeking a primary advantage – to make good a wrong done to him.

Was the Fox Application commenced without reasonable cause (s.611(2)(a))?

[33] The Statement of Susan Clark dated 16 October 2017 is instructive in the matter. What it makes clear is that had she followed Uniting’s recruitment processes there would have been no dispute and it would have been unnecessary for Mr Fox to make any application to the Commission. This is what really occurred:

a) The Applicant attended an interview with Susan Clark on or about 5 July 2016. At the interview the Applicant provided Clark the following documentation:

i. proof of identification; and

ii. A current (at the time of the 2) certificate of registration to the Nursing and Midwifery Board of Australia (Certificate). The Certificate did not state the number of service hours completed by the Applicant.

b) The Applicant presented well at interview. Ms Clark recalled that the Applicant indicated that he had just moved from Lismore and had previously been performing agency nursing work.

c) After the interview Ms Clark complete a referee checks in accordance with stages 4 and 5 of Uniting’s the process.

d) On 7 July 2016 the Applicant uploaded a “confidential resume” to Uniting’s eRecruit system. It demonstrated that the Applicant had been working as a registered nurse at least since August 2016.

e) On 15 July 2016 Ms Clark made a verbal offer employment to the Applicant. At that time she completed a Uniting checklist. The checklist required that Ms Clark enquire about the service hours worked by the Applicant and to request proof of those service hours. Ms Clark failed to do this. In her witness statement she said it was “not my usual practice to request service hours for registered nurse at any time.”

[34] And so, it is immediately apparent that:

a) Although the Certificate did not state the number of service hours completed by the Applicant it did reflect that, at the time of the interview on 5 July 2016, it was registered with the nursing Board.

b) By reason of the information provided by the Applicant to Ms Clark during the interview and also as a result of her reference checking of the Applicant that prior to 15 July 2016 Ms Clark was fully aware of the Applicant’s extensive skills and experience.

c) Although the applicant’s CV makes no reference to service hours it is apparent when one reads it that the Applicant has held positions in nursing for at least 10 years. That is to say at least from 7 July 2016, Uniting was on notice about the applicant’s extensive skills and experience as a nurse. Ms Willits conceded the same. 24

d) Ms Clark was required to ask the Applicant about his service hours and proof of it, but she failed to do so. Had she done so there would have been no dispute. This is because, when Uniting finally asked Mr Fox for his service hours in December he was promptly forthcoming in providing them and received back pay to December 2016 (although not for some period of time due to further deficiencies in the Respondent’s processes).

[35] What necessarily flows from this understanding of the facts in the matter is that Uniting did not come to the Commission with “clean hands”. This was a dispute of its own making. And yet Uniting hangs its defence on a pedantic reading of the Agreement which provides that,

“17.2 The employer will recognise such prior service and experience upon production of documentary evidence satisfactory to the employer.

17.3 The employee’s new classification will apply from the date the evidence is received by the employer.

17.4 The employee’s classification will be backdated for accepted prior service if the evidence is received by the employer within three (3) months of the employee’s initial engagement.”

[36] That is to say, although Uniting was on notice about Mr Fox’s 10+ years of experience as a nurse and Ms Clark failed to do her job properly during the recruitment process, Uniting submits that it should be allowed to profit from its failed processes solely on the basis that the Applicant did not provide it with his service hours (in circumstances where he was never asked for them).

[37] In deciding the Fox Application the principles of equity, good conscience and the substantial merits of the case would dictate that Uniting should have been prevented from denying Mr Fox payment. It was an unreasonable act by Uniting to deny Mr Fox recognition back to the date of his commencement in circumstances where it was failings in Uniting’s recruitment process that led to Mr Fox not being asked to provide his service hours at the recruitment stage.

[38] Having regard to the history of the matter I am not satisfied that the Fox Application was commenced without reasonable cause within the meaning of s.611(2)(a) of the FW Act. On the facts known to Mr Fox at the time he commenced his application it could not have been reasonably apparent to him, or to the reasonable person, that there was no substantial prospect of success. This is because, at the time Mr Fox commenced his application he was legitimately an employee that had been let down by the failures in the Uniting recruitment process. He was genuinely an employee aggrieved notwithstanding the terms of the Agreement.

[39] In so far as Mr Fox received legal advice about the matter it seems clear to me that it was not unreasonable of him to ignore it. It is not clear that his advisers fully appreciated the industrial reality and the manifest failures that occurred within the Uniting recruitment process. Remember had Ms Clark done her job properly and completed the processes required by Uniting, Mr Fox would have been paid correctly from the commencement of his employment. In this context Mr Fox rejected his lawyer’s advice. He was entitled to do so. I find no fault in that decision.

[40] For these reasons I am not satisfied that the Fox Application was so obviously untenable that it could not possibly have succeeded. It was not manifestly groundless. The Fox Application may ultimately have been unsuccessful, but that is not the test to be applied.

Did the Fox Application have no reasonable prospects of success (s.611(2)(b))?

[41] Noting that the application of s.611(2)(b) is an objective test, for the reason I have explained above, I am not satisfied that the Fox Application was manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable. Consequently, the Fox Application did not have “no reasonable prospects of success” within the meaning of s.611(2)(b) of the FW Act.

Conclusion

[42] In the decision of Meys v Sawtell Hotel, Vice President Catanzariti stated:

“[50] … It is not the role of this Commission to exercise its discretion to issue a costs order in lieu of the prima facie assumption that a party will bear its own costs – an assumption which the authorities require me to cautiously adhere to – when to do so would inflict additional financial and emotional hardship on an already vulnerable self-represented Applicant who has not acted vexatiously, unreasonably or in bad faith.” 25

[43] Noting that Uniting abandoned the submission that the Fox Application was commenced vexatiously, for the reasons above, the Commission, as presently constituted, is not satisfied that Mr Fox made the Fox Application without reasonable cause. Nor is the Commission, as presently constituted, satisfied that it should have been reasonably apparent that the Fox Application had no reasonable prospect of success when it was commenced. Consequently, the Commission has no jurisdiction pursuant to s.611 of the FW Act to order costs.

[44] It must then follow that Uniting’s application for costs pursuant to s.611 of the FW Act is dismissed.

[45] An Order to that effect will be issued with this Decision.

[46] However, if I am wrong about the jurisdiction of the Commission to order costs under s.611, in the exercise of my discretion, I would not have done so in any case. This is because, for the reasons I have set out above, this was a dispute of Uniting’s own making. Its recruitment processes failed. Accordingly, rather than spending $10,643 on lawyers in the indecent pursuit of costs against Mr Fox, Uniting could have done the more decent thing by acknowledging the faults in their own recruitment system and, as a gesture of good faith, back-paid Mr Fox $4,772.51.

COMMISSIONER

Appearances:

Mr R Fox for the Costs Respondent

Ms A Willits, Hilliard and Berry Solicitors for the Costs Applicant

Hearing details:

Sydney with video link to Lismore.

10 am, Tuesday, 20 March 2018

Printed by authority of the Commonwealth Government Printer

1 s.611(1) FW Act

2 s.611(2) FW Act

3 PR599345

4 [2018] FWC 138 para [17]

5 PN7

6 PN22

7 PN57

8 PN60

9 PN76

10 PN80 – PN92

11 PN69

12 PN100 – PN101

13 PN112

14 PN178

15 PN179

16 PN187

17 PN193 – PN208

18 PN291

19 PN316

20 PN322

21 PN337

22 [2015] FWCFB 1956

23 PN158 – 163

24 PN196

25 [2016] FWC 5561

Mr Robert Fox v Uniting T/A Caroona Aged Care, Uniting