Mr Vangelis Karantzounis v King of Knives Pty Ltd T/A King of Knives

[2013] FWC 2601

[2013] FWC 2601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Vangelis Karantzounis
v
King Of Knives Pty Ltd T/A King Of Knives
(C2012/6750)

VICE PRESIDENT WATSON SYDNEY, 30 APRIL 2013

Application for costs.

Introduction

[1] This decision concerns an application for an order for costs by King of Knives Pty Ltd (King of Knives) in respect of an application by Mr Vangelis Karantzounis pursuant to s.365 of the Fair Work Act 2009 (the Act).

[2] Mr Karantzounis filed an application alleging that his employment had been terminated in contravention of Part 3-1 of the Act on 21 December 2012. The matter was listed for conference before me on 16 January 2013 at 4.30pm. A request had been received from Mr Grapsas to appear on behalf of King of Knives by video link from Melbourne. An arrangement was made for Mr Grapsas to appear by telephone. In response to an email on 10 January 2013 from my chambers confirming that arrangements had been made for Mr Grapsas to appear by telephone Mr Grapsas sent a reply in the following terms:

“Dear Nathan, thanks for that confirmation, however in view of the complexities of this matter I believe I will need to fly to Sydney to be able to adequately defend my client and as indicated when I provided you with the form 8A we will be seeking costs from the applicant.”

[3] At approximately 12.00pm on 16 January 2013, Mr Karantzounis contacted the Sydney Registry to advise that he intended to withdraw the application. As a result of the application being withdrawn the conference scheduled for 4.30pm that day was cancelled.

[4] By letter dated 17 January 2013 Mr Grapsas indicated that he was seeking that Mr Karantzounis reimburse the King of Knives for the cost of Mr Grapsas’ airfare to and from Sydney, a total of $287.11. Mr Grapsas submits that Mr Karantzounis’ application was vexatious and without foundation.

[5] Mr Karantzounis contends that the application was neither vexatious or without foundation and that he had made the application believing his employment was terminated unjustifiably.

The relevant legislation

[6] Section 611 of the Act provides:

“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).”

[7] A Full Court of the Federal Court of Australia in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (No 2) 1 said the following in relation to the meaning of the relevant test under an identically worded predecessor provision:

“[14] The fact that the CFMEU may have been unsuccessful in its application does not, of course, necessarily lead to the conclusion that the continuation of the proceedings was unreasonable: see McAleer v The University of Western Australia (No 2) wherein Siopis J found that the absence of power in the Court to grant relief did not result in the finding that a counter claim by the respondent university constituted an "unreasonable act" for the purpose of s 824. His Honour observed that the counter claim raised "a blend of public and private law issues". In these proceedings the amendments to the WRA 1996 created significant changes to the conduct of litigation in industrial matters and the Court’s determination affected not only the immediate interests between the parties, but had a wider application for other litigation of an industrial nature.

[15] In R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia, Gibbs J (as he then was) said of s 197A of the Conciliation and Arbitration Act 1904 (Cth):

In my opinion a party cannot be said to have commenced a proceeding "without reasonable cause", within the meaning of that section, simply because his argument proves unsuccessful.

[16] Young J made a similar observation in Paras v Public Service Body Head of the Department of Infrastructure (No 3)where his Honour said:

There is, however, a distinction between an application that proves unsuccessful and an application or argument that is so misconceived that it can be characterised as unreasonable or vexatious. An order for costs might be made under s 824 in the latter case but not the former.”

(References omitted)

[8] See also Imogen Pty Ltd v Sangwin (1996) 70 IR 254.

Consideration

[9] Although the General Protection provisions of the Act have their origin in previous legislation, the wording of the provisions, and their reach, changed significantly with the enactment of the Act in 2009. Decisions of the courts with jurisdiction to ultimately determine the matters have not been extensive, and are continuing to clarify the meaning of the provisions.

[10] The role of the Fair Work Commission in s.365 matters is to take all reasonable steps to resolve the dispute by way of a conference of the parties. A majority of matters are resolved through this process or do not otherwise give rise to litigation.

[11] In this matter Mr Karantzounis alleged that he was dismissed because of a temporary absence due to illness or injury. King of Knives contends that it exercised its legal right not to offer Mr Karantzounis, a casual employee, additional hours, because he was considered unreliable.

[12] On the information before me I am not able to assess the strength of Mr Karantzounis’ claim. It is certainly conceivable that a decision based on reliability overlaps with a decision taken because of a temporary absence.

[13] King of Knives submits that various comments by Mr Karantzounis are inconsistent, this reflects a state of confusion, the application should have been settled or withdrawn previously and the application is therefore vexatious.

[14] Mr Karantzounis maintains his allegation that he was dismissed because of an absence for which he submitted a medical certificate and his supervisor and next door neighbour is responsible for the delay in forwarding this to the appropriate management representative. He states that in order to protect the supervisor he reluctantly decided to discontinue the application on the day of the conference.

Conclusion

[15] I do not consider in all of the circumstances that the application was made vexatiously or without reasonable cause. The alleged breach of the Act is not conceptually misconceived. Insofar as the late withdrawal of the application may be relevant, Mr Karantzounis submitted a reason which is plausible. I therefore do not have jurisdiction to make an order for costs. It is unnecessary that I consider discretionary factors that would have arisen if I had jurisdiction. I dismiss the application for the payment of Mr Grapsas’ airfares.

VICE PRESIDENT WATSON

Final written submissions:

King of Knives Pty Ltd, 17 January 2013.

Mr Karantzounis, 13 February 2013.

King of Knives Pty Ltd, 21 February 2013.

 1 [2007] FCAFC 145.

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