Ms Candy Choi v Country Fire Authority T/A CFA

[2013] FWC 2658

[2013] FWC 2658

FAIR WORK COMMISSION

DECISION

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

Ms Candy Choi
v
Country Fire Authority T/A CFA
(U2012/9766)

COMMISSIONER ROE SYDNEY, 1 MAY 2013

Application for costs.

[1] This is an application for costs made by the Country Fire Authority (CFA). The CFA is seeking costs pursuant to Section 611 of the Fair Work Act 2009 (the Act) from Ms Candy Choi the Applicant in the unfair dismissal proceedings.

[2] Following a hearing on 16 and 17 January 2013, I dismissed the application for unfair dismissal remedy in a decision published on 23 January 2013. 1 The Application for costs was made by the CFA within 14 days of the decision, on 5 February 2013. The parties agreed that the matter be dealt with on the basis of written submissions. Ms Choi also made an application for costs on 11 February 2013 which was dismissed by me in a decision of 12 February 2013.2 The original directions in this matter were set aside until after the outcome of the appeal made by the Applicant against my original decision was known. The Full Bench refused permission to appeal and dismissed the appeal on 22 March 2013.3

[3] Revised directions were issued in respect to the CFA costs application on 17 April 2013.

[4] The relevant provisions of the legislation are as follows.

“402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:

(a) FWA determines the matter; or

(b) the matter is discontinued.

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA 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.

....”

Background

[5] The application for unfair dismissal relief was filed by the Applicant on 21 September 2012.

[6] On 6 November 2012 the Applicant wrote to Fair Work Australia, as it then was, and objected to the Respondent being legally represented. She advised that she could not afford to pay for legal representation and she had not been “able to secure the services of legal representation who offered “no-win-no-fee” to take on may case.” The Applicant advised that she had “extremely minimal expertise of the Law”. 4

[7] On 26 November 2012 after the Applicant served her affidavit material and submissions the CFA’s lawyers sent the Applicant what could be regarded as a standard letter warning the Applicant that they considered her case to have no reasonable prospects of success and putting the Applicant on notice that should her application be unsuccessful the CFA reserved its right to seek costs.

[8] The CFA argue that Ms Choi made the application without reasonable cause (Section 611(2)(a)) and or that it should have been reasonably apparent to Ms Choi that her application had no reasonable prospects of success (Section 611(2)(b).

Submissions

[9] The CFA argue that the circumstances known to Ms Choi at the time she made the application were such that there was no reasonable prospect of success. CFA point to the performance management process, the warning and the final warning, and the evidence of Ms Choi that she did not agree with management’s view of her work performance. Ms Choi argued that the performance management process amounted to bullying but a third party investigation found no evidence to support this allegation. In the face of these finding Ms Choi persisted with her argument and argued as part of her case that she had been bullied by her managers and that feedback provided by her managers was unreasonable and unjustified. CFA argue that in these circumstances the application was misconceived, had no reasonable prospect of succeeding and to this extent was made without reasonable cause.

[10] CFA argue that it was reasonably apparent at the time the application was made that there were no reasonable prospects of success. CFA argue that the claim was manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. CFA argue that as Ms Choi was unable to obtain the services of a legal firm on a no-win-no fee basis we should assume that such a firm refused to do so because the application had no reasonable prospect of success and that Ms Choi was advised of this view. CFA also point to the fact that their legal representative warned the Applicant that they considered that the case would have no reasonable prospects of success after considering the materials in support of her application.

[11] CFA estimate their legal costs are in excess of $60,000. The hearing lasted one and a half days and the CFA produced five witness statements and an outline of submissions.

[12] Ms Choi argues that the Application for costs was made out of time. The application for costs was made within 14 days of my decision dismissing her unfair dismissal application. The directions for dealing with the application were suspended pending the outcome of the appeal against my decision. When that appeal was dismissed I asked the CFA to advise if they still wished to continue with the costs application. It took the CFA some three weeks to advise that they did wish to continue. It is this delay to which Ms Choi refers. This delay does not alter the fact that the application was made within the required time period.

[13] Ms Choi argues that her bullying claim was extensively investigated and was not found to be frivolous or vexatious. Ms Choi also points to the fact that I did not find that her unfair dismissal application was frivolous or vexatious and to the substantial evidence and submissions she produced in support of her application. Ms Choi also notes that parties are not required to be represented in proceedings before FWC and that it was the choice of the CFA to be represented. Ms Choi argues that she should not be penalised for her failure to be legally represented.

[14] I have not detailed all of the submissions made by the parties but I have considered all of the matters raised.

Consideration

[15] CFA argue that the claim was manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. I do not accept this submission. In my decision I set out in some detail why I rejected the submissions of the Applicant and accepted those of the CFA. My decision makes it clear that the Applicant did not have a strong case. However, this was not a case of a single incident of gross or serious misconduct. It was a case where the employer justified dismissal because of a pattern of problems with performance and conduct. To make my decision I had to weigh up the competing evidence of the parties concerning the legitimacy of the performance management issues and the conduct issues. This included the cross examination of the Applicant and the witnesses for the Respondent.

[16] I do not accept that the Applicant was required to accept the judgement of the CFA’s investigation of her earlier bullying complaint. Although in my decision I rejected the Applicant’s contention that the performance management amounted to bullying and that the performance management was unreasonable or unjustifiable that was my judgement reached after considering the evidence and submissions before me. It is possible to conceive of situations where an employer has investigated a bullying complaint through a third party and found that performance management did not amount to bullying but where FWC accepts an argument that a termination of employment was unfair because the performance management process was unreasonable or the issues did not justify termination.

[17] The Applicant did not agree with management’s consistent criticisms of her performance. She rejected each of these negative assessments at the time they were given and in lodging her unfair dismissal claim and prosecuting it before FWC. I found that the approach of management was reasonable and that her failure to positively respond to and engage with the negative assessments made by management was unreasonable. The correctness or otherwise of the judgment of management cannot be said to be facts apparent to the Applicant at the time she made the Application. This was a matter in dispute about which there was competing evidence.

[18] There is no evidence to suggest that the Applicant was acting vexatiously or seeking to pursue a matter for an ulterior motive or knowing that it had no substantial prospects of success. The decision in this matter shows that it is most likely that the Applicant passionately believed that her case was a strong one. She continued to hold this belief after I made the decision as evidenced by the lodgement of an appeal. The Applicant had reasonable cause to make her application. She was dismissed for a course of conduct and performance and she had a strongly held view that the employer’s judgment about her conduct and performance in each of the incidents relied upon was partial or incorrect and believed that she had the evidence to support her judgment.

[19] I cannot conclude that the Application was made without reasonable cause. The test in Section 611(2)(a) is not met.

[20] An assessment of whether or not it should have been reasonably apparent to the Applicant that her case had no reasonable prospects of success does not involve an understanding of what was subjectively known by the Applicant but rather involves an objective consideration of what should have been reasonably apparent to the Applicant.

[21] I do not regard a letter from the CFA’s legal representatives to an unrepresented Applicant putting them on notice that they do not consider the case would have a reasonable prospect of success and that they may pursue costs should FWC dismiss the application as evidence 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.” For a start the legislation concerns the situation at the time an application is made not at the time the CFA’s legal representatives have considered the submissions of the Applicant. Secondly, it is reasonable for an unrepresented Applicant to regard the advice of the Respondent’s lawyers as partisan and designed to pressure them to discontinue the proceedings. An unrepresented Applicant is not in a position to assess the merits of a generalised judgment which does not include the rationale for that judgement.

[22] No reasonable inference can be drawn from the fact that the Applicant says that she was unable to obtain the services of a lawyer on a no-win-no-fee basis. There may be many reasons why an Applicant is unable to obtain such services. We have no evidence of the extent of the Applicant’s inquiries. Lawyers may decline to take on a case on such a basis because they believe it has limited prospects of success. Limited prospects of success is not the same as no reasonable prospect of success which is the test which is relevant in this case. It is not reasonable to make assumptions about what lawyers approached by the Applicant may or may not have said in declining to take the case on a no-win-no-fee basis.

[23] There are two aspects of the consideration in the circumstances of this case which are particularly relevant. Firstly, it is part of the objective circumstances in assessing what should have been reasonably apparent that the Applicant was unrepresented as she is entitled to be. Secondly, it is important to note that the legislative test is a high one; a test that it should have been reasonably apparent that the case had no reasonable prospects.

[24] I am satisfied that a proper reading of my decision discloses that although the Applicant’s case was not strong it was not manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. The test in Section 611(2)(b) is not met.

[25] The Application for costs is dismissed.

COMMISSIONER

Final written submissions:

Respondents’ submissions were received on 24 April 2013.

Applicants’ submissions were received on 27 April 2013.

 1   [2013] FWC 469.

 2   [2013] FWC 990.

 3   [2013] FWCFB 1809.

 4   Correspondence of Applicant to FWA of 6 November 2012.

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