Mr Sanjay Singh v Santosheema Pty Ltd T/A Cardiac Care

[2020] FWC 4225

[2020] FWC 4225

FAIR WORK COMMISSION

DECISION

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

Mr Sanjay Singh
v
Santosheema Pty Ltd T/A Cardiac Care
(U2019/14387)

DEPUTY PRESIDENT BULL SYDNEY, 20 AUGUST 2020

Application for an unfair dismissal remedy, Application for costs order, filed out of time, no scope to extend time for filing, application dismissed.

Background

[1] On 10 July 2020, following the conclusion of the party’s submissions the Fair Work Commission (the Commission) delivered an ex-tempore decision on transcript 1. In that decision, the Commission found that the respondent had complied with the Small Business Fair Dismissal Code in terminating the employment of Mr Sanjay Singh (the applicant), thereby upholding the jurisdictional objection raised by the respondent and dismissing the applicant’s application for unfair dismissal remedy.

[2] On 31 July 2020, an application for costs pursuant to ss.400A, 611 and 401 of the Fair Work Act 2009 (the Act) was filed by Santosheema Pty Ltd T/A Cardiac Care (the respondent) against Mr Singh. 2 The application was filed 21 days after the decision was delivered.

[3] The Form F6 – Application for costs lists the grounds for the application as follows:

•  The applicant’s Unfair Dismissal claim was frivolous and vexatious.

•  The applicant fabricated evidence to make a false claim against us, and was probably hoping to extort financial compensation from our company under false pretences.

•  The applicant chose to pursue this false allegation of an unfair dismissal despite knowing that this was untrue.

[4] The respondent also filed in support of its application written submissions, a costs schedule and payslips for June 2020. The applicant was not copied into the respondent’s correspondence.

[5] On 3 August 2020, the respondent sent further correspondence to the Commission detailing additional items it sought to include in the costs schedule provided to the Commission on 31 July 2020. The applicant was again not copied into the respondent’s correspondence.

[6] On the same date, my chambers wrote to the respondent’s contact person, Mr Santos Brahmbhatt, with the applicant copied into the email, to advise that pursuant to s.402 of the Act, which is detailed below, an application for costs must be filed within 14 days of determination of the matter. The correspondence noted that the ex-tempore decision in the matter was handed down before the parties on 10 July 2020, being the date of determination of the application. While a written copy of the decision was later provided, this did not change the date of the decision. 3

[7] The respondent was advised that there is no scope to extend the time period stipulated under s.402 of the Act, and as such its costs application needed to be made within 14 days being by 24 July 2020. The respondent was advised that if it wished to continue its application it was to provide written reasons by close of business on Friday 7 August 2020.

[8] The respondent was further advised that, as was made clear in a previous decision of this Commission involving the respondent, 4 costs do not include time spent by an employee representative in person in preparing for and conducting their case. It is noted that the majority of items and costs detailed in the respondent’s costs schedule relate to Mr Brahmbhatt personally preparing and defending the case on behalf of the respondent and attending at the hearings before the Commission.

[9] On 6 August 2020, Mr Brahmbhatt wrote to the Commission and provided written reasons why the application should be accepted out of time. Mr Brahmbhatt stated as follows:

“In reference to the Form F6 Costs Application in matter U2019/14387 made via email on 31st July 2020, I note that the decision was handed down on 10th July 2020. We received a written copy of the decision on the 21st July 2020.

I was under the impression that the costs application needs to be submitted within 14 days from receipt of the written copy.

I would like to request President Bull (sic) and the FWC to accept this application on the basis that:

1) I was of the understanding that I had 14 days from the time of the written receipt of the decision.

2) I only realised that it was 14 days from the date of determination of the matter as per s.402, after I saw this one [sic] the F6 form.

3) We have been incredibly short-staffed, and strained of staff resources, due to the extra load with the second wave of COVID.

4) Most importantly, I have personally been on two weeks stress leave from work, as I have been suffering from chest pain and palpitations due to the extreme stress and anxiety that I felt during this hearing. This has further delayed the application by a week.

5) In addition, Mr Singh has lodged a separate complaint against his sponsor with the Immigration, (sic) and I had to spend several hours dealing with those vexatious complaints to the Immigration. We believe he did so, in order to obtain Residency in Australia.

We duly request the Commission to accept this application due to the circumstances relating to the delay.”

Relevant Legislation

[10] Section 400A of the Act is set out as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

[11] Section 611 of the Act is expressed as follows:

“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.”

[12] Section 402 of the Act sets out the time limits for applying for costs:

“402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.”

(my bold text)

Consideration

[13] The wording in s.402 of the Act is unambiguous in that an application for a costs order under s.611 of the Act must be made within 14 days after the Commission determines the matter or the matter has been discontinued. The Act makes no provision for the time limit to be extended as occurs in some other sections of the Act. 5

[14] Separately I am satisfied that there is no general power within the Act for the Commission to extend time for making an application such as this where the application has not been made in accordance with the statutory time limits.

[15] The Commission determined the matter between the parties, being Mr Singh’s application for an unfair dismissal remedy (U2019/14387), on 10 July 2020. Consequently, the making of a valid application for an order for costs under s.611 of the Act is conditional upon that application being made on or before 24 July 2020.

[16] The costs application was made on 31 July 2020, being 21 days after the determination of the matter and not within the prescribed 14-day period, as such it is not a valid application.

[17] The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721744>

 1   [2020] FWC 3795. It is noted that the Decision was handed down on 10 July 2020 in-person at the Fair Work Commission in Sydney with both parties personally in attendance for the duration of the delivery of the Decision

 2   Listed at 2.2; Other sections of the Act are also referred to in the application at 3.2

 3   A copy of the written reasons for decision was issued to the parties by email on 21 July 2020 in accordance with the Commission’s standard process

 4   Santosheema Pty Ltd T/A Cardiac Care Centre v Marianne Alexander [2016] FWC 1541

 5   In contrast, see for example s.394(3) and s.366(2) of the Act. See also decision of Full Bench in C.A. Corling & M.G. Corling T/A Paws A While Boarding Kennels v Shannon Tobin [2015] FWCFB 7378