Ms Elizabeth Church v Eastern Health T/A Eastern Health Great Health and Wellbeing

[2013] FWC 9970

[2013] FWC 9970

FAIR WORK COMMISSION

DECISION

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

Ms Elizabeth Church
v
Eastern Health T/A Eastern Health Great Health and Wellbeing
(U2013/9121)

COMMISSIONER ROE MELBOURNE, 18 DECEMBER 2013

Application for costs.

[1] This is an application for costs made by Eastern Health T/A Eastern Health Great Health and Wellbeing (Eastern Health). Eastern Health is seeking costs pursuant to Section 400A of the Fair Work Act 2009 (the Act) from Ms Elizabeth Church the Applicant in the unfair dismissal proceedings. The Applicant was represented by Mr Nathan Murphy of the Health Services Union of Australia (HSU).

[2] The application for unfair dismissal remedy was the subject of unsuccessful conciliation conference on 31 May 2013. Eastern Health alleged that the Application was out of time but Deputy President Gooley found that this was not the case in a Decision on 3 September 2013. The Directions for the hearing of this matter required materials concerning the merits of the matter to be provided separately from materials in respect to the jurisdictional objection concerning genuine redundancy although both matters were scheduled to be heard together. The Applicant provided materials on 21 October 2013 and 11 November 2013 and the Respondent provided materials on 11 November 2013.

[3] After considering the submissions of the parties, I made a Decision to approve the Respondent’s application to be represented by a lawyer. I advised the parties of this with brief reasons on 25 November 2013. 1

[4] The hearing of the matter was scheduled to commence on 2 December 2013 at 10am. At 9.24am that morning the Applicant filed and served an appeal against my decision to grant permission for the Respondent to be represented. The Applicant also sought a stay of the first instance hearing in accordance with Section 606 of the Act. In his covering email Mr Murphy stated:

“The Applicant has filed a notice of Appeal in relation to the matter of representation. The Applicant has requested a stay of decision, and therefore expects the matter listed for Dec 2 and 3 to be adjourned.”

[5] The Respondent attended the proceedings as directed on 2 December 2013 but the Applicant and Mr Murphy did not turn up. I instructed my Associate to make efforts to contact Mr Murphy, however, he did not answer the phone and a number of messages were left advising him that he was still required to attend the hearing. The hearing proceeded at 11am in the absence of Mr Murphy and the Applicant.

[6] At the hearing on 2 December 2013 Eastern Health made an application for U2013/9121 to be dismissed under Section 399A of the Act on grounds including the failure of the Applicant to attend the notified hearing and that this was unreasonable particularly in the circumstances of the timing of the lodging of the appeal notification and the failure to provide any reasonable excuse or even response. I rejected that application but advised Eastern Health that they were at liberty to make a further application depending upon how the matter developed.

[7] The parties were advised on 2 December 2013 that the matter before me was relisted for hearing on 16 December 2013. The President listed the appeal for hearing on 9 December 2013. On that morning Mr Murphy for the Applicant lodged a notice of discontinuance of the appeal.

[8] On Friday 13 December 2013 the Respondent renewed their application for the matter to be dismissed under Section 399A together with an Order for costs under Section 400A of the Act and sought that that application be determined as a preliminary matter at the hearing on Monday 16 December 2013. A submission in support of that application was included. It is clear in the submission that it is intended that the application for costs should follow the granting of the Section 399A application and in that sense it is notice of intention to apply for costs. 2

[9] At 8.01am on 16 December 2013 Mr Murphy advised that the Applicant was discontinuing the unfair dismissal application. A F50 Notice of Discontinuance form was provided at 9.11am. At 9.17am my Associate advised the parties by email as follows:

“We have received advice from Mr Murphy that the matter is discontinued.

We have also received submission and application from the Respondent for costs.

Before cancelling the hearing today we seek urgent advice as follows:

Is the Respondent persisting with its application re costs?

If the Respondent is persisting are the parties content for the matter to be dealt with on the basis of written submissions?

If the answer to the first question is no then the hearing will be cancelled. If the answer to the first question is yes and the answer from one or more of the parties to the second question is no then the hearing will proceed today to deal with the costs matter. If the answer to the first question is yes and the answer of both parties to the second question is yes then the hearing will be cancelled.”

[10] The Applicant responded that: “Given the information was received on Friday afternoon, the Health Services Union Victorian Branch would not be in a position to make a submission on the application, verbal or otherwise.” Eastern Health responded that they were proceeding with a costs application and that they wanted the matter dealt with at the scheduled hearing on 16 December 2013. The parties were then advised that the hearing would proceed at 10am. Mr Murphy then requested:

“If possible can I arrange to appear by phone, as it is difficult for me to attend at short notice and I have scheduled other commitments, I was expecting that after filing a discontinuance there would be no need to attend.”

[11] I agreed to postpone the start of the hearing to enable Mr Murphy to attend.

[12] At the hearing Mr Rinaldi for Eastern Health confirmed that he was pressing an application for costs pursuant to Section 400A following the discontinuance of the unfair dismissal application. I agreed to the extent it was necessary to excuse Eastern Health from any requirements under the Rules to submit and serve further written application. The grounds advised on Friday 13 December 2013 were that the Applicant unreasonably failed to attend a hearing held by the Fair Work Commission (the Commission) on 2 December 2013 in relation to the Application and that the Applicant unreasonably failed to comply with directions or orders of the Commission relating to the Application. At the hearing Mr Rinaldi added a further ground which related to the late notice of the discontinuance of the proceedings on 16 December 2013 in a situation where this behaviour had already occurred on 2 December 2013 and then again on 9 December 2013 in respect to the appeal proceedings.

[13] I granted Mr Murphy a further adjournment of half an hour to consider the matters raised before requesting that he respond to the submissions of Eastern Health. I refused his request for further adjournment as I considered it would add further to the costs of the parties and I did not consider that there was any issue of unfairness or denial of natural justice. Mr Murphy was on notice about the intention to pursue costs should the matter be dismissed as sought by Eastern Health. It was reasonably obvious in the circumstances that Eastern Health would pursue that matter even if the matter was discontinued particularly if that discontinuance was not part of a settlement and was at very short notice.

[14] I considered the submissions of the parties and issued a decision on transcript. I now publish my more detailed reasons.

[15] Mr Murphy submitted that his behaviour had been inconvenient rather than unreasonable. He acknowledged that he had failed to respond to a number of messages from the Commission requesting that he attend the hearing on 2 December 2013 and that he reply to the messages. Mr Murphy submitted that he had not breached the Rules and Procedures of the Commission. He submitted that the Commission was biased against applicants. He complained that the Respondent had failed to provide some documentation on time in the lead up to the proceedings. It should be noted that Eastern Health also complained about the failure of the Applicant to provide witness statements in accordance with the directions.

[16] The Act provides as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if 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 matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

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

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 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.”

[17] I am satisfied that the application for a costs order has been made in accordance with Clause 402 after the matter was discontinued and within 14 days after the matter was discontinued.

[18] The matters complained of are in connection with the conduct or continuation of the matter. I must be satisfied that the HSU as the representative of the Applicant has caused costs to be incurred because of an unreasonable act or omission.

[19] I am satisfied that there was no basis for the Applicant not to attend the hearing on 2 December 2013. The Applicant was represented by an experienced union official, Mr Murphy, who was well aware of the directions to attend the hearing, well aware that no stay order had been or could have been issued and well aware that the lack of notice of the appeal meant that the Commission and the Respondent would almost certainly have been unaware of the appeal and would have been in attendance at the hearing. I am also satisfied that Mr Murphy for the Applicant was aware that the Commission had made a number of attempts to contact him to advise him that the matter was proceeding and that he failed to respond prior to 16 December 2013 to the messages left for him. I am satisfied that these matters were unreasonable actions and acts of omission and constituted an unreasonable failure to attend proceedings and constituted an unreasonable failure to comply with directions of the Commission.

[20] I am also satisfied in the unusual circumstances of this matter that the failure to lodge the appeal until 36 minutes prior to the scheduled hearing when combined with the failure to make any other attempts to provide advice or warning by telephone constitutes unprofessional and unreasonable behaviour by Mr Murphy on behalf of the Applicant. It should be noted that the procedural decision to grant representation was issued a week prior to the scheduled hearing in order to assist the parties. If Mr Murphy on behalf of the Applicant wished to appeal that procedural decision he had plenty of time to do so long before the proceedings and had he done so the costs for 2 December 2013 would not have been incurred as a decision in respect to his application for a stay order would almost certainly have been made prior to the scheduled hearing.

[21] I am satisfied that the costs of the attendance by Eastern Health and its representatives on 2 December 2013 were incurred unnecessarily and because of the unreasonable behaviour. The matter was relisted for hearing on 16 December 2013 as a consequence.

[22] I now turn to the additional ground of unreasonable behaviour, the late notice of the discontinuance of the proceedings on 16 December 2013. I found that although it was reasonable to draw an inference from the series of last minute discontinuances on 2 December, 9 December and 16 December 2013 I was concerned that the late discontinuance on 16 December 2013 may have resulted from the instructions given by the Applicant to Mr Murphy rather than from the failures of Mr Murphy as the Applicant’s representative. A finding of unreasonable behaviour has to be made on the balance of probabilities and although it is a fine balance in the circumstances I am not so satisfied. If I am wrong about that I would not be prepared to exercise my discretion to require costs associated with the proceedings on 16 December 2013 to be met because I consider that the power to order costs should only be exercised where there is clear evidence of unreasonable conduct and it should not discourage or prevent a party from robustly pursuing an unfair dismissal claim.

[23] I am therefore not prepared to grant the full scope of costs sought by Eastern Health. I am satisfied that the costs of the attendance of the representatives of Eastern Health at the proceedings on 2 December 2013 and incidental costs including those associated with the making of the costs application should be paid by the Applicant.

[24] The unreasonable conduct was unreasonable conduct by Mr Murphy as the representative of the Applicant so I hope that the HSU will take responsibility.

[25] I direct that Eastern Health submit a schedule of costs within seven days and that the HSU on behalf of the Applicant respond by 20 January 2013. Any response by Eastern Health should be received by 28 January 2013. I will then issue an appropriate order finalising the matter.

COMMISSIONER

Appearances:

Mr M Rinaldi appeared for Eastern Health.

Mr N Murphy appeared for Ms Church.

Hearing details:

2013

Melbourne

December 16

 1   See published Decision [2013] FWC 9443.

 2   Submission of Eastern Health dated 13 December 2013, at para 13.

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