Mr Wyatt Oliver Burey v Gladstone Area Group Apprentices Ltd
[2023] FWC 2697
•16 OCTOBER 2023
| [2023] FWC 2697 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Wyatt Oliver Burey
v
Gladstone Area Group Apprentices Ltd
(C2023/2320)
| COMMISSIONER DURHAM | BRISBANE, 16 OCTOBER 2023 |
Application for costs orders against party involved in an application to deal with contraventions involving dismissal – application dismissed
Gladstone Area Group Apprentices Ltd (the Company) has applied for an order for costs pursuant to section 375B of the Fair Work Act 2009 (Cth) (the Act) against Mr Wyatt Burey (Mr Burey). I note that the Company did not indicate on the Form F6 Application for Costs, that it sought an order for costs pursuant to section 611, but note this was referred to and relied upon in the Company’s submission.[1] The application arises out of proceedings initiated by Mrs Gaybriella Burey (Mrs Burey), Mr Burey’s mother, on behalf of Mr Burey on 24 April 2023, alleging that Mr Burey had been dismissed by the Company on 30 March 2023 in contravention of a general protection.
Background
After the application was filed on 24 April 2023, the Company subsequently engaged the services of a solicitor and, on 8 May 2023, filed a Form F53 notice of representation with the Fair Work Commission (the Commission). On 18 May 2023, an employer response was filed by the Company’s representative by way of a Form F8A.
The response raised an objection to the application namely that Mr Burey was not dismissed.
The matter was programmed to determine whether Mr Burey was dismissed by the Company as required under section 365(a) of the Act and Coles Supply Chain Pty Ltd v Milford.[2]
Directions were made for the filing of material and the matter was listed for 29 August 2023 to determine the question of whether Mr Burey was dismissed on the employer’s initiative pursuant to section 386(1)(a) of the Act.
The matter was subsequently discontinued on 18 July 2023 by Mrs Burey on behalf of Mr Burey.
The Costs Application
On 28 July 2023, the Company filed an application seeking an order for costs against Mr Burey, pursuant to section 375B of the Act. I note that the costs application was filed within 14 days after the Commission had finished dealing with the dispute, as required by section 377 of the Act.
To limit any additional costs being incurred, the parties consented to the Commission determining the application on the papers.
Submissions of the Parties
With respect to section 611, the Company submits that the application was lodged without reasonable cause, and that it should have been reasonably apparent to Mr Burey that he had no reasonable prospects of success. In support of this, they argue that:[3]
1. Mr Burey lodged an application for General Protections (Dismissal) even though his employer (The Company) had not terminated his employment.
2. It had been explained to Mr Burey that he had not been terminated.
3. On 31 March 2023, Mr Burey was advised, via correspondence that his employment had been suspended.
4. Mr Burey’s claim that his employment was terminated by the Company was doomed to fail as his evidence was insufficient to support this finding.
5. Mr Burey was not terminated on the employer’s initiative, or at all and therefore cannot rightfully claim relief.
6. There was no good cause of action for Mr Burey to bring a claim for relief against the Company in the first place.
Specifically with respect to their contention that Mr Burey was made aware that his employment had not been terminated, the company states:[4]
a. On 30 March 2023, the host employer and Ms Sally Cowan had spoken to Mr Burey’s father, Mr Wayne Burey (also an employee of the host employer), to explain the situation.
b. Later that day, Ms Cowan says that she met with Mr Burey together with Mr Wayne Burey and Mrs Burey at their home. Ms Cowan states that in both of these meetings, she explained to Mr Burey that he had not been dismissed, rather his employment and training had been suspended whilst the Company looked for another host.
c. Following this, Ms Cowan had tried to contact Mr Burey to make him aware that she was trying to organise an alternate host employer, however he failed to reply to her calls or emails.
d. On or around 14 April 2023, Ms Cowan contacted Ms Danielle Burke who is a Senior Field officer with the Department of Education and Training.
e. Ms Burke mentioned that she had spoken with Mr Burey who had told her that the Company had terminated his employment.
f. On 19 June 2023, the Company emailed the extension of probationary period letter to the Applicant.
In light of the above, the Company is of the view that they have incurred costs, pursuant to section 611(2), because there was no good cause of action for Mr Burey to bring a claim for relief against the Company in the first place.[5]
The cost application sought an order for costs incurred during the proceedings of this matter.[6]
Mrs Burey provided written submissions on behalf of Mr Burey in response to the cost application. In summary, Mrs Burey submits that the decision to make the application came from her devotion and love for her son, and her need to protect him from the allegations that she felt had been wrongfully levelled against him. Specifically, Mrs Burey hoped that by bringing the application, Mr Burey would have the opportunity to:[7]
Test the unfair and untrue allegations that had been made against him.
Clear his name and reputation.
Restore his lost integrity, confidence, dignity, and respect.
Highlight that Mr Burey was bullied during his employment.
For Mr Burey to receive an apology and retain his apprenticeship.
Mrs Burey disputes the Company’s submissions with respect to the suggestion that Ms Cowan met with her and Mr Burey together with Mr Wayne Burey at their home to explain the situation, stating that they have never met with Ms Cowan, and in fact, she had only travelled to Biloela on one occasion, prior to Mr Burey commencing his apprenticeship.[8]
With respect to the suggestion that Mr Burey had refused to engage with Ms Cowan, Mrs Burey explained that due to the significant impact the ending of his apprenticeship had on Mr Burey, she had advised him not to engage with any phone calls or texts regarding this matter.[9]
Mrs Burey further submitted that she decided to withdraw the application once it became apparent to her that her husband's employment may be impacted if she continued to pursue the matter. Mrs Burey went on to express that as a family, they could not face the prospects of the financial loss this would create. [10]
Mrs Burey expressed her own anxiety and distress while managing Mr Burey’s application, noting that she does not have a law background and again, that she was only trying to protect her son.[11]
Relevant Provisions
Section 375B of the Act provides:
375B Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) 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 dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC’s power to order costs under section 611.
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).
The relationship between applications made under section 375B and s section 611 was explored by the Full Bench in Azad v Hammond Park Family Practice Pty Ltd:[12]
“[9] Sections 611 and 375B require separate consideration. Section 611 is directed towards the conduct of a person at the time an application (or response) is first made and requires consideration of whether the application was “made” vexatiously or without reasonable cause, or whether it should have been reasonably apparent, at the time the application was made, that it had no reasonable prospect of success.
[10] Section 375B is directed to conduct by a party ‘in connection with the conduct or continuation of [a proceeding]’ and requires consideration of whether that conduct caused costs to be incurred and was ‘an unreasonable act or omission.’”
Consideration
Making an order for costs against a party under either section 611 or section 375B of the Act is a two-step process. Firstly, I must be satisfied that one of the limbs of either section 611 or section 375B have been met. Secondly, I must consider it appropriate to exercise my discretion to make an order for costs.
The starting point for any consideration of costs in proceedings before the Commission is set out in section 611(1), which provides that a person must bear their own costs in relation to a matter before the Commission.
Previous decisions of the Commission have made it clear that the power to award costs should be exercised with some caution and only in clear cases so as not to erode the broad principle embodied in section 611(1) and generally, parties are to bear their own costs.[13] Consequently, applicants with the benefit of a provision such as section 611 will rarely be ordered to pay costs.
In determining whether to order costs, I have considered the above principals and preconditions, as they relate to sections 611 (a) and (b).
Section 611 – was the application made vexatiously, or without reasonable cause; or should it have been reasonably apparent there was no reasonable prospect of success
The Company submissions specifically identify that they are not suggesting that the application was made vexatiously. Consequently, I find this to be a neutral consideration.
The Company’s submissions focus primarily on their argument that Mr Burey’s application was made without reasonable cause and that this should have been apparent to him. The Company’s arguments in this regard are two fold, firstly they argue that Mr Burey’s application for General Protections (Dismissal) was lodged even though the Company had not terminated his employment, and secondly, that this had been explained to Mr Burey, including during a meeting held at Mr Burey’s home with both his parents in attendance. [14] Mrs Burey disputes this point, stating in her submissions that no such meeting took place.[15]
I have two issues with the Company’s contentions in this regard. Firstly, whilst there is a clear factual dispute between the parties with respect to the meeting said to have occurred on 30 March 2023, even if this meeting did occur, I find it difficult to accept that a young man, whom the Company themselves has identified as having difficulties with “comprehension of following general instructions” would have fully appreciated the complexities of his situation, let alone had any appreciation of his prospects of success.[16]
Mr Burey’s employment was not a traditional employer-employee relationship, it was complex. Not only was he engaged as an Apprentice, in accordance with the Further Education and Training Act 2014 (Qld), but also placed with his host employer, Batchfire Callide Mine Biloela, through a labour hire arrangement with his actual employer, Apprentices and Trainees Queensland.[17]
Further, the fact that the Company themselves engaged legal representation from the outset of this matter, gives an indication of the complexity of a General Protections application. It is also noted that the Form 53 filed by the Company, indicated that they intended to seek permission to be represented by their lawyer at any further conferences or hearings. The circumstances under which such permission can be granted are set out in section 596 of the Act, which relevantly provides:
596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non‑English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2‑3 or 2‑6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative
Whilst this matter was discontinued prior to proceeding to a conference or hearing, the lodging of the Form 53 is an indication that the Company's representative intended to put forward arguments with respect to both section 596 2(a) and (b) of the Act.
To have successfully persuaded me that such leave should be granted, they would have to of advanced arguments acknowledging that the matter was complex, and that the Company was not capable of effectively representing themselves.
To then argue that Mr Burey, an 18-year-old, in the first three weeks of his first full-time employment was capable of fully appreciating the complexities of this matter and that it should have been reasonably apparent there was no reasonable prospect of success seems at best unreasonable.
The letter sent to Mr Burey on 31 March 2023 is also somewhat confusing. It refers to the suspension of the training contract until a new host employer is found, it also references that Mr Burey would be paid one week’s pay, “in lieu of notice”.[18] Payment in lieu of notice is something that a reasonable person would associate with the termination of their employment.
In considering the above, I do not find it unreasonable for Mr Burey, or his parents to have not fully understood what was being explained to them. Particularly noting the stress and strain that they were experiencing at this time.
Secondly, in its simplest form, the Company’s argument that Mr Burey did not have reasonable cause to bring his application because they had told him that he had not been dismissed, is presuming that Mr Burey is somehow obliged to simply accept as fact, what his employer is telling him. It is clear that Mr Burey and his family felt genuinely aggrieved by the Company’s actions. In these circumstances, it is understandable that they sought to progress their matter, rather than simply accepting the submissions of the Company in this regard from the outset.
Taking into account the broad principles embodied in section 611(1) and for the reasons outlined above, I reject the Company’s contention that Mr Burey’s application was made without reasonable cause and do not agree that it should have been reasonably apparent to him that there was no reasonable prospect of success.
Section 375B - did the first party cause 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 dispute
Further to my reasoning above, I see no basis to make a finding that it was unreasonable for Mr Burey to make the application such that section 375B(1)(b) is enlivened. Additionally, given Mr Burey decided to discontinue the application prior to the determinative conference set down for 29 August 2023, I would not consider this conduct to be unreasonable given the circumstances.
Conclusion
For the reasons outlined above, I reject the Company’s contention that Mr Burey brought his application without reasonable cause and that it should have been apparent to him that he had no reasonable prospects of success. As such, I am not satisfied that any of the limbs of section 611 or section 375B have been met in this application.
Having regard to the conclusions above, the preconditions for the making of an order for costs pursuant to section 375B and 611 have not been satisfied. Further, had they been satisfied, I would not have been inclined to exercise my discretion to do so given the particular circumstances of this matter as set out above. The costs application is dismissed.
COMMISSIONER
[1] Company’s Annexure A, page 3.
[2] [2020] FCAFC 152.
[3] Company’s Annexure A, pages 4-5.
[4] Ibid, pages 5-6.
[5] Ibid, page 4.
[6] Ibid, page 6.
[7] Mrs Gaybriella Evelyn Burey’s response to Form F6 Costs Application, pages 1-2.
[8] Ibid, page 1.
[9] Ibid, page 2.
[10] Ibid.
[11] Ibid.
[12] [2022] FWCFB 110 at [9]-[10].
[13] E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[2014] FWCFB 810.
[14] Company’s Annexure A, page 4.
[15] Mrs Gaybriella Evelyn Burey’s response to Form F6 Costs Application, page 1.
[16] Witness Statement of Ms Sally Cowan, page 1.
[17] Ibid.
[18] Suspension Letter dated 31 March 2023.
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