Mr Wayne Heath v Sell and Parker

[2012] FWA 9638

[2012] FWA 9638

FAIR WORK AUSTRALIA

DECISION

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

Mr Wayne Heath
v
Sell and Parker
(U2012/9324)

VICE PRESIDENT WATSON MELBOURNE, 16 NOVEMBER 2012

Application for costs - whether precondition for application satisfied - whether Fair Work Australia has granted permission to appear - definition of Fair Work Australia - application incompetent because representative has not been granted permission to appear - Fair Work Act 2009 ss. 401, 575, 596.

[1] This decision concerns an application for an order for costs by Sell and Parker Pty Ltd (Sell and Parker) in respect of an unfair dismissal application brought by Mr Wayne Heath pursuant to s.394 of the Fair Work Act 2009 (the Act) concerning the termination of his employment by Sell and Parker. The costs order is sought under s.401 of the Act against Mr Amnon Keleman of Employee Assist who was previously Mr Heath’s representative. 1

[2] Mr Heath filed an application for unfair dismissal with Fair Work Australia on 3 August 2012. The application was prepared and signed by Mr Keleman. A telephone conciliation conference was held on 21 August 2012. Mr Keleman appeared at the conciliation conference on behalf of Mr Heath. The matter was not resolved by conciliation. On 10 September 2012 directions were issued for the filing of material in advance of the hearing of the matter on 12 November 2012. Sell and Parker allege various unreasonable omissions by Mr Keleman including the failure to file evidence as directed, the failure to file evidence as indicated to Sell and Parker’s representative and the failure to attend the hearing of the matter.

[3] Section 401 of the Act is as follows:

“401 Costs orders against lawyers and paid agents

(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:

(a) that:

(i) the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and

(ii) it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.

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

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

[4] A preliminary point arises as to whether the precondition in the opening words of the section is satisfied in this matter. Mr Mead of the Australian Industry Group, who appeared for Sell and Parker, contends that the appearance of the Mr Kelemen at the telephone conciliation on 21 August 2012 was a proceeding before Fair Work Australia and in order to participate in those proceedings Mr Kelemen was required to have the permission of the tribunal to do so. Mr Mead submits that the conference was pursuant to a delegation of Fair Work Australia powers by the President under s.625 of the Act, or in the alternative the direction for filing materials and the filing of the submission by him on 2 October 2012 was pursuant to an implied grant of permission to appear.

[5] I do not consider that these submissions are correct. These arguments have been made considered and rejected in previous decisions of Fair Work Australia. 2 The conciliation of unfair dismissal matters by staff conciliators is not a function performed by Fair Work Australia as defined in s.575 of the Act. Nor is it carried out pursuant to any specific or general delegation of powers by the President. Further, neither the issuing of directions to file material or the receipt of them prior to the hearing in the matter constitutes an implied grant of permission to appear. Applications for permission to appear can only realistically be dealt with at the commencement of the hearing of the matter where the parties can be heard on the statutory test to be applied. Submissions and evidence are only formally before the tribunal when they are tendered in the proceedings. That point was never reached in this matter as Mr Kelemen did not attend the hearing of the matter on 12 November.

[6] The application for costs is therefore not competent and is dismissed.

VICE PRESIDENT WATSON

Appearances:

M. Mead for Sell and Parker Pty Ltd

W. Parker on his own behalf

Hearing details:

2012.

Sydney.

November, 12.

Final written submissions:

Sell and Parker Pty Ltd, 15 November 2012.

 1   Mr Kelemen notified Fair Work Australia that he ceased to act on behalf of Mr Heath on 15 November 2012.

 2   Department of Education and Early Childhood Development v A Whole New Approach Pty Ltd[2011] FWA 8040.

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