Ms Armita Zarnegar v Guardian Network T/A Guardian Network Pty Ltd

[2016] FWC 1165

[2016] FWC 1165

FAIR WORK COMMISSION

DECISION

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

Ms Armita Zarnegar
v
Guardian Network T/A Guardian Network Pty Ltd
(U2015/12948)

COMMISSIONER ROE MELBOURNE, 24 FEBRUARY 2016

Application for costs.

[1] On 8 December 2015 I issued a decision refusing Ms Zarnegar an extension of time within which to make her unfair dismissal application. 1

[2] Guardian Network have applied under Section 611 for the costs associated with defending the application on the grounds that Mr Zarnegar’s application was made without reasonable prospect of success in that she was a casual employee and the application was made approximately 399 days after the date she believed she was dismissed. Guardian Network also argue that Ms Zarnegar’s application was made vexatiously.

[3] Guardian requested that the matter be dealt with on the papers and Ms Zarnegar was given the opportunity to object to that course of action and did not do so. I decided to deal with the matter on the papers and advised the parties accordingly.

[4] Guardian submit that Ms Zarnegar worked approximately 120 hours in total in the more than 12 months between February 2013 and July 2014. The casual nature of the employment was demonstrated by the contract of employment and tax file declaration. Ms Zarnegar has made a number of complaints to Worksafe and to date those complaints have not been successful. Guardian submit that Ms Zarnegar could have pursued her issues through the Fair Work Ombudsman but instead she pursued the issues on national radio. Guardian Network offered direct discussions to settle the issue but submit that Ms Zarnegar’s claims were so extreme that it was impossible to agree. Guardian point to a number of concerns that they have with Ms Zarnegar’s conduct in respect to her workcover and underpayment claims. Guardian also submit that Ms Zarnegar conducted herself inappropriately in not providing notice that she would not attend the hearing of the extension of time matter.

[5] An application under Section 611 can be brought on the grounds that:

(a) Ms Zarnegar made the unfair dismissal application vexatiously or without reasonable cause; or

(b) It should have been reasonably apparent to Ms Zarnegar that her application for unfair dismissal remedy had no reasonable prospect of success.

[6] I agree with Guardian that Ms Zarnegar has behaved inappropriately and has caused inconvenience to Guardian in her failure to deal with matters in a timely manner. Ms Zarnegar has been overseas and English is not her first language. These are relevant matters but do not explain the serious delays in raising issues and responding. However, most of the matters submitted by Guardian are not relevant to the requirements of Section 611. The poor behaviour of Ms Zarnegar in respect to notice of non-attendance at the hearing and her alleged poor behaviour in the handling of the workcover and underpayment matters are not relevant. Section 611 is about the making of the application not about conduct subsequent to the making of the application.

[7] There is insufficient basis to conclude that Ms Zarnegar has pursued the application vexatiously. I have no basis to conclude that she did not make the application for the purpose of seeking a remedy for alleged unfair dismissal. It is not disputed that Ms Zarnegar was an employee of Guardian and that she is no longer working for Guardian. Ms Zarnegar believes that she should have been offered further work by Guardian. I cannot conclude that the application was made without reasonable cause. The fact that Ms Zarnegar may have also been pursuing other issues with her employer does not mean that her unfair dismissal application was vexatious or without reasonable cause.

[8] The issue of whether or not it should have been reasonably apparent to Ms Zarnegar that her application for unfair dismissal remedy had no reasonable prospect of success is more complex.

[9] In the extension of time decision I made the following statement about the merits of the case:

“On the material available to me the case appears to have very limited prospects of success. It is unlikely on the material before me that Ms Zarnegar was dismissed at the initiative of the employer. However, I make no definitive finding on this matter given that I have not heard the evidence and other matters may emerge. The merits of the case are a factor which stand against a finding of exceptional circumstances.”

[10] My conclusion that the case had “very limited prospects of success” is different from a conclusion that it had “no reasonable prospects of success”. The fact that Ms Zarnegar was a casual employee does not mean that she is unable to bring a successful unfair dismissal application. Ms Zarnegar states that she was employed from January 2013 until around August 2014. Ms Zarnegar’s application suggests that she had an expectation of on-going employment. Guardian strongly argue that Ms Zarnegar was not employed on a regular and systematic basis and should not have had an expectation of on-going employment. Although I consider it likely that Ms Zarnegar would be found not to have the required minimum employment period I am not satisfied that it should have been reasonably apparent to Ms Zarnegar that her case must fail on that basis.

[11] I do consider it rather extraordinary that Ms Zarnegar made her application 399 days after the alleged dismissal and that the facts as stated by Ms Zarnegar in her application are rather confused about when and how the alleged dismissal occurred. An applicant has the right to seek an extension of time within which to make an application regardless of how late the application might be. Exceptional circumstances must be established. Ms Zarnegar sought to explain why her circumstances were exceptional. Her case was very weak but I am not satisfied, on a fine balance, that it was so hopeless that it should have been reasonably apparent to Ms Zarnegar that it had no reasonable prospects of success.

[12] In this case the difference between “very limited prospects of success” and “no reasonable prospects of success” is small. However, the right of an employee to make an application should not be restricted and the fact that there is a high bar to the granting of costs in unfair dismissal matters means that the distinction is an important one. On a fine balance I am not satisfied that Ms Zarnegar’s case was so hopeless that it should have been reasonably apparent to her that her case had no reasonable prospects of success.

[13] The application for costs is dismissed.

COMMISSIONER

 1   [2015] FWC 8513.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR577309>