Mrs Kristen Severino v Galaxy Electric International Pty Ltd T/A Coonanbarra Cafe

[2013] FWC 2057

[2013] FWC 2057

FAIR WORK COMMISSION

DECISION

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

Mrs Kristen Severino
v
Galaxy Electric International Pty Ltd T/A Coonanbarra Cafe
(U2012/12059)

VICE PRESIDENT WATSON SYDNEY, 18 APRIL 2013

Application for costs - whether response to the application without reasonable cause - whether it should have been reasonably apparent to the employer that it had no reasonable prospects of success - Fair Work Act 2009 - s.611.

[1] This decision concerns an application for an order for costs by Mrs Kristen Severino in respect of an unfair dismissal application brought pursuant to s.394 of the Fair Work Act 2009 (the Act) concerning the termination of her employment by Galaxy Electric International Pty Ltd T/A Coonanbarra Cafe (Galaxy Electric).

[2] In a decision of 8 February 2013 [[2013] FWC 477] I found that the termination of Mrs Severino’s employment was unreasonable and ordered Galaxy Electric to pay Mrs Severino 12 weeks pay.

[3] The parties were given an opportunity to file written submissions in relation to the costs application.

[4] The costs order is sought under s.611 of the Act which 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).”

[5] The history of the matter is relevant:

● The dismissal took effect on 21 July 2012;

● The unfair dismissal application was filed on 3 August 2012;

● The parties were notified on 10 August that the matter was listed for conciliation before a Fair Work Australia conciliator on 28 August 2012;

● On 20 August the conciliation date was changed to 30 August 2012 at the request of Galaxy Electric, Galaxy Electric did not attend the conciliation on 30 August;

● On 5 September 2012 the matter was listed for hearing and directions made for parties to file material in advance of the hearing on 14, 15, 16 November 2012;

● Galaxy Electric did not file submissions or evidence in accordance with the directions;

● On 30 October 2012 the parties were notified of an amendment to the hearing dates and that the matter was listed for hearing on 16 November 2012 only, a further change was made with the matter being listed for hearing on 15 November 2012;

● On 7 November Mrs Severino advised that she was unable to attend the hearing on 15 November, the hearing date was changed to 4 December 2012, a date that had been agreed between Mrs Severino and Galaxy Electric;

● At the hearing on 4 December 2012, I granted permission for Ms Edwards of counsel to appear on behalf of Mrs Severino. Galaxy Electric was not legally represented in the proceedings and sought an adjournment in order to seek legal representation. The hearing was adjourned and conciliation arranged before a Fair Work Australia conciliator. The conciliation was unsuccessful;

● On 5 December 2012 Galaxy Electric requested that the matter be set down for hearing on 10 January 2013 as Ms Liu of the respondent was required to return to China before the New Year. It was also indicated that Galaxy Electric’s solicitors would be on leave until January 2013;

● On 6 December 2012 my associate advised the parties that I was available to hear the matter on 18 December 2012. Galaxy Electric indicated that its legal representative was not available on that date. The matter was not listed for 18 December;

● Counsel for Mrs Severino subsequently advised the Commission that she spoke to Galaxy Electric’s counsel who advised her that he had not been asked for his available dates nor requested to indicate his availability on 18 December.

● On 18 December counsel for Mrs Severino requested the matter be relisted urgently. On 19 December my associate informed Mrs Severino and Galaxy Electric that the matter would be relisted on 11 January 2013. A notice of listing was sent on 20 December confirming the hearing date;

● On 9 January, Galaxy Electric requested an adjournment of the 11 January hearing on the basis that its representative had not accepted the brief to appear as he had only received the material from its former representative on 4 January. The respondent was advised by my associate to contact Mrs Severino and if she agreed to an adjournment the parties were requested to advise a mutually convenient date for relisting the matter. Mrs Severino did not agree to a further adjournment of the proceedings;

● On 10 January 2013 Galaxy Electric advised that it would not be able to appear at the hearing without a representative and again sought an adjournment of the proceedings, this time until February 2013. My associate advised Galaxy Electric that any application for an adjournment would need to be made at the commencement of the proceedings on 11 January 2013. The parties were further informed that if the application for an adjournment was not granted the hearing would proceed;

● Galaxy Electric did not appear at the hearing on 11 January 2013, the hearing proceeded in the absence of the respondent.

[6] Mrs Severino submits that Galaxy Electric was given every opportunity to obtain representation and not only failed to do so but apparently misled the Commission about availability for hearing dates. Mrs Severino submits that Galaxy Electric showed a flagrant disregard for the process by not attending the conciliation or the hearing on 11 January and submits that additional costs were incurred due to Galaxy Electric’s failure or refusal to participate in the proceedings in a meaningful way.

[7] Mrs Severino further submits that due to the circumstances of the dismissal, including Mrs Severino’s long history with the business and the fact that the termination was not due to performance related issues, it ought to have been clear that an order for reinstatement or compensation would be made.

[8] Mrs Severino submits that the conduct of Galaxy Electric satisfies both s.611(2)(a) and (b) of the Act and that she should be awarded all her legal costs associated with the proceedings. In the alternative Mrs Severino seeks all legal costs incurred from and including 4 December 2012.

[9] Galaxy Electric opposes the application for costs. It submits that it did not act unreasonably in terminating Mrs Severino’s employment.

[10] There is a high threshold to obtain an order under s.611 of the Act for the payment of costs in a matter before the Fair Work Commission. I note that the employer is not from an English speaking background and has had considerable difficulty dealing with the matter throughout its history. She contends that she spoke to the Fair Work Ombudsman’s office on four occasions prior to the termination and would not have terminated Mrs Severino’s employment if she received advice that she should not have done so. It is clear to me that it is not the function of the Fair Work Ombudsman to give advice of this nature and I anticipate that the relevant officers made every attempt to explain this to the employer.

[11] Because of the language difficulties I do not consider that it should have been reasonably apparent to the employer that its response to the application had no reasonable prospects of success.

[12] I am concerned at the approach of Galaxy Electric to hearings in this matter. In particular I am concerned that it appears that no reasonable attempts were made to arrange representation for 18 December and no reasonable attempts were made to be represented at the hearing on 11 January. However, there were no additional costs incurred in relation to 18 December as the matter was never listed for hearing on that day and as I accepted the request of Mrs Severino that the matter proceed on 11 January notwithstanding no appearance on behalf of the employer, the non-appearance on 11 January did not give rise to a further adjournment of the matter.

[13] Indeed it appears to me that the vast majority of the costs incurred by Mrs Severino were with respect to the original hearing date on 4 December and the final hearing date on 11 January and necessary preparation for each. I am not satisfied that contesting the application in itself was without reasonable cause. Therefore, once Mrs Severino chose to be represented in the matter, costs of one hearing date were inevitable in any event. The additional day’s costs were the result of my granting permission to Ms Edwards to appear and my granting an adjournment of the matter to enable the employer to obtain advice and representation. It appears that some attempts were made to secure representation but not in a way that ultimately led to a representative appearing on 11 January. I am unable to conclude in these circumstances that any conduct of the employer in responding to the application, and that led to additional costs being incurred, was without reasonable cause.

[14] I am therefore not satisfied that Mrs Severino has established that the circumstances in s.611(2) are made out in this case. The application for costs is dismissed.

VICE PRESIDENT WATSON

Final written submissions:

Mrs Severino, 28 February 2013.

Galaxy Electric International Pty Ltd T/A Coonanbarra Cafe, 26 March 2013.

Mrs Severino, 4 April 2013.

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