DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Simon Lewis
v
SGA (1994) Pty Ltd
(U2019/6862)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 APRIL 2020

Application by employer for costs – order sought under section 611(2) FW Act against former employee – order sought under section 401(1A) against paid agent – application by dismissed employee not made without reasonable cause or without reasonable prospect of success – no costs order against dismissed employee – paid agent found to have engaged in unreasonable conduct – application for costs granted in part against paid agent – costs to be payable on indemnity basis – order and directions issued

[1] This decision concerns an application for costs made by SGA (1994) Pty Ltd (Stamford or the employer) on 6 January 2020. Stamford seeks two orders arising from unfair dismissal proceedings brought by a former employee Simon Lewis (Mr Lewis). Mr Lewis’s unfair dismissal application was dismissed by the Commission on 23 December 2019 (Decision). 1

[2] The orders sought are:

1. An order under section 611(2) of the FW Act that Mr Lewis pay Stamford’s costs up to 30 October 2019 on a party to party basis on the ground that the unfair dismissal application was made without reasonable cause or that it should have been reasonably apparent to Mr Lewis that his application had no reasonable prospect of success; and

2. An order under section 401(1A) of the FW Act that Unfair Dismissals Australia Pty Ltd, being Mr Lewis’s paid agent, pay Stamford’s costs on and from 31 October 2019 on an indemnity basis (including costs associated with filing and relying on a statement of a witness Jamie Nicholls) on the ground that the paid agent engaged in unreasonable conduct in connection with the matter causing Stamford to incur significant costs.

[3] The costs application was filed on 6 January 2020. As Mr Lewis’s application was a matter under Part 3-2 of the FW Act, the costs application was required to be filed within fourteen days of the Decision (section 402 FW Act). This costs application is within time.

[4] Stamford propose that quantum be assessed by a costs assessor.

[5] The costs application is opposed by Mr Lewis and by Unfair Dismissals Australia.

The Facts

[6] The relevant facts (with two exceptions) are not in dispute.

[7] I make findings of fact based on a combination of uncontested facts, the evidence before me and material available to the parties on the Commission’s unfair dismissal file including the evidence taken during proceedings conducted by the Commission in this matter including interlocutory proceedings, the merit proceeding and the costs proceeding. A relevant, but not exhaustive summary of those facts is set out below.

Pre-hearing proceedings

[8] Mr Lewis filed the primary proceedings on 21 June 2019, one week after dismissal. He did so under his own hand. 2

[9] On 17 July 2019, Unfair Dismissals Australia lodged a Notice of representative commencing to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 2229
Decision Date: 30 APRIL 2020

CaseChat Overview and Summary

The applicant, Mr Simon Lewis, sought an order for costs against his former employer, SGA (1994) Pty Ltd, and a paid agent, under the Fair Work Act 2009. The applicant had been dismissed and subsequently appealed the decision. The Federal Circuit and Family Court was required to determine whether costs orders should be made against the applicant and the paid agent, and if so, under which sections of the Act. The court had to consider the merits of the application by the employer for costs and whether the applicant's appeal was made without reasonable cause or without a reasonable prospect of success. Additionally, the court needed to assess whether the paid agent had engaged in unreasonable conduct warranting a costs order against them.

The court found that the employer's application for costs against the applicant was not successful as the application was not made without reasonable cause or without a reasonable prospect of success. The court concluded that the applicant's appeal had a reasonable basis in law and fact. Regarding the paid agent, the court determined that their conduct was unreasonable, justifying a costs order against them. The court held that the paid agent had acted in a manner that was not conducive to the fair and efficient conduct of the proceedings. Consequently, the court granted the employer's application for costs against the paid agent but ordered that the costs be payable on an indemnity basis. The court also issued specific directions for the payment of costs.

In summary, the court dismissed the employer's application for costs against the applicant but granted the application in part against the paid agent, ordering the costs to be paid on an indemnity basis. The court provided clear directions for the enforcement of the costs order against the paid agent.

Orders