Ms Fay Summers v Regional Enterprise Development Institute Ltd t/a Redi

[2019] FWC 609

[2019] FWC 609

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 789FC - Application for an order to stop bullying

Ms Fay Summers
v
Regional Enterprise Development Institute Ltd t/a REDI; Ms Irene Brown; Mr Shane Edwards
(AB2018/438)

DEPUTY PRESIDENT SAMS SYDNEY, 1 FEBRUARY 2019

Three applications filed in respect to conditions of employment of a Compliance Officer – no application pursued – failure to prosecute applications – failure to comply with directions of the Commission – no reasonable prospects of success – two applications dismissed, one concluded – no order as to costs.

INTRODUCTION

[1] Ms Faye Summers has filed three applications, or more correctly, the Australian Municipal, Administrative, Clerical and Services Union (the ‘ASU’) has filed the applications on her behalf, under three different sections of the Fair Work Act 2009 (the ‘Act’). In all three applications the respondent is named as the Regional Enterprise Development Institute Ltd T/A REDI (the ‘respondent’ or ‘REDI’). Ms Summers commenced employment with REDI as a CDP Compliance Officer on 12 June 2018. REDI is an Aboriginal Support Agency in Dubbo, NSW, which provides employment assistance for the Aboriginal community in the area.

[2] In sequence, on 12 July 2018 an application was filed under s 789FC for Stop Bullying Orders. The second and third applications, filed on 29 August 2018 under s 739 and s 372 respectively, sought to have the Commission deal with a dispute under the Social, Community, Home Care and Disability Services Industry Award 2010 (the ‘Award’) and alleged breaches of the General Protections provisions of the Act. It is beyond dispute that none of the applications have moved beyond preliminary conference proceedings, let alone been heard or determined. This has been primarily due to Ms Summers’ failure to attend proceedings or comply with directions, or her not being able to be contacted or give instructions to her Union; although to be fair to her, she has consistently maintained that her psychological condition, arising from her employment with the respondent, was the principle reason for her inability to diligently prosecute her applications.

Chronology of communications between Ms Summers, the ASU and the Commission

[3] After unsuccessful attempts to settle the matters in telephone conferences convened by the Commission on 31 July and 6 August 2018 (at which Ms Summers was represented by the ASU), Ms Summers sent a Doctors Report from Dr Wimaladharma Ranasinghe, dated 14 August 2018, in which the medico expressed the view Ms Summers was suffering from mental health concerns for which she was being paid workers’ compensation benefits. He noted Ms Summers had left Dubbo in the first week of August and was at that time living on the Central Coast of NSW.

[4] On 29 August 2018, the s 739 and s 372 applications were filed. On 6 September 2018, the three applications were joined and directions were issued for a hearing on 10 October 2018. As Ms Summers filed no submissions or evidence, I listed the matters for a further conference and directions on 2 October 2018.

[5] As a result of the non-appearance of Ms Summers, or anyone on her behalf, I had cause to advise her and the ASU as follows:

I am emailing you in relation to the matters listed above, which were listed for conference before the Commission at 3pm AEST today. After several failed attempts to contact you both, the conference was convened with the respondent appearing in the Commission by telephone. During the conference, Mr Wilson made an application on record, pursuant to s 587 of the Fair Work Act, for the Commissionto dismiss the matters listed above. Mr Wilson observed that the applicant has failed to provide any material in accordance with the Commission’s directions issued on 6 September 2018, which required the applicant’s evidence and submissions in relation to matter C2018/4816 to be filed by 20 September 2018. Mr Wilson observed that the applicant also now failed to appear in a conference before the Commission without any explanation. On that basis, the respondent submitted that the applications are frivolous and ought be dismissed for want of prosecution.

Deputy President Sams directs the applicant to advise the Commission by no later than 4pm on Friday 5 October 2018 whether she wishes to press her applications. If she does wish to press any or all of her applications, the Deputy President will issue directions in relation to filing and service of submissions in relation to the respondent’s s 587 dismissal application. In the event no contact is made with the Commission by this time, the respondent’s dismissal application will be considered without further notice to you.

As no material has been filed, the directions issued on 6 September are dissolved and the hearing on 16 October 2018 is herein vacated.

[6] On 3 October 2018, Ms Summers sent two emails to the Commission which, in order, read:

I am extremely distressed and believed that the asu would be attending. I made application in confidence the fwc would not allow solicitor acting and being paid by REDI to overshadow my legal rights not to be bullied and my industrial rights protected . 

The union was supposed to represent me at the conference the union had copies of contract and all correspondence.redi pay nick Wilson a lot of money to intimidate people, the organisation are habitual in their belligerence and the system that protects me does not seem accessible.

[7] The next day she sent a further email which reads:

I ask that the fwc not dismiss given the asu filed 2 applications and the anti bullying was under instruction in writing from Gail asu. Can the fwc appoint an independent negotiator as I do not appear to be actually represented by asu and I am extremely distressed and suffering health issues .

[8] On 5 October 2018, I sent the following email to Ms Summers and Mr Cowen of the ASU:

In response to your email concerning the respondent’s application to dismiss all three of your applications before the Commission his Honour has asked me to advise you as follows:

1. The Commission is obliged by the Act to consider a properly made application under s 587 to dismiss your three applications.
2. As you are opposed to this application and the Commission has had no contact from the ASU, he intends to issue directions for the filing of submissions on the respondent’s dismissal application (refer to directions attached).
3. Section 587 applications are often determined ‘on the papers’ as they usually involve uncontested facts. However, if there are contested facts, a hearing will be required.
4. If you are unable to comply with the Commission’s directions, you will need to provide medical evidence of your incapacity to do so.
5. There is no power under the Fair Work Act, nor would it be appropriate for the Commission to appoint ‘an independent mediator’ to represent you. The representation of parties in the Commission or any Court is a matter entirely for the parties and there is simply no legal or practical authority for the Commission to appoint representatives for parties in these circumstances, putting aside the question of who would pay for such representation.
6. His Honour notes that you appear dissatisfied with the representation by the Union. At the present time and until advised that the Union no longer represents you, the ASU is your representative on the record.
7. While his Honour regrets that you are ‘extremely distressed’, there is a requirement on the Commission to deal with all matters in a matter that:

   (a)  is fair and just; and
   (b)  is quick, informal and avoids unnecessary technicalities; and
   (c)  is open and transparent; and
   (d)  promotes harmonious and cooperative workplace relations.

The requirement to act quickly is even more pronounced in the Commission’s anti-bullying jurisdiction. Given your anti-bullying application was lodged on 12 July 2017 and little or no progress has been made to date, his Honour asks that you give serious consideration to your grievance with the employer, given his preliminary view, that it has all the characteristics of a contract dispute for which other avenues of remedy may be more appropriate.

[9] On 19 October 2018, Mr Wilson, a solicitor acting on behalf of REDI, emailed Mr Cowen and the Commission in these terms:

We act for the Respondent employer, Regional Enterprise Development Institute Ltd.

1. On 5 October 2018, the Commission made orders for the filing and service of material in relation to the Respondent’s application for the dismissal of the above proceedings pursuant to section 587 of the Fair Work Act 2009 (Cth).

2. Pursuant to order 1A made on 5 October 2018, we attach for filing:

a. Affidavit of Nicholas Alexander Wilson sworn 19 October 2019; and

b. Respondent’s Submissions.

3. We are instructed to request the Respondent’s application is determined on the papers.

4. This email transmission is copied to the Applicant’s representative, Mr Scott Cowen of the Australian Services Union.

[10] Two hours later, Ms Summers emailed the Commission as followed:

I am yet to receive any response from asu . The solicitor employed by REDI is clearly a qualified legal practitioner who is paid by REDI not for profit government funded organisation to administer programs to vulnerable persons and not fund legal altercations due to bullying, General protections and industrial disputes.

If the asu does not represent me I will seek alternative assistance from alternative solicitor to assist me as I continue to seek treatment and psychiatric support.All certificate of capacity to return to normal duties at REDI have been provided to eml REDI ‘s insurer.

Mr Wilson has prepared an affidavit on behalf of employer who is yet to engage independent investigator As ordered in first conciliation of application to cease bullying by commissioner Chambers.

Mr Wilson’s representation of REDI is clearly not independent and is very selective in the information contained.

I hope to return to work as soon as possible and please ask the commission to ensure my safety and that the employer provide independent investigator, and return to work services which have not at any stage been made available.

Please not REDI also at no stage followed the commissioner ‘s recommendation to negotiate a “dignified exit” . 

Both REDI and me Wilson are representing the board of Redi and the funding bodies that actually fund all organisation income.

[11] On 20 November 2018, Mr Wilson sought confirmation as to whether the Commission intended to deal with the respondent’s s 587 application ‘on the papers’, copied in to Mr Cowen. This was agreed to, as no objection was received. That day, my Chambers advised the parties as follows:

His Honour refers to Mr Wilson’s email of 8 November 2018 in reference to the respondent’s application, pursuant to s 587 of the Act, to dismiss the above applications and his Honour’s earlier email to Mr Cowan and Ms Summers’ of 2 October 2018. His Honour notes Ms Summers email of 19 October 2018, does not deal with the respondent’s s 587 application.

As there has been no further communication from either Mr Cowan or the applicant since 19 October 2018 and a failure by the applicant to comply with the Commission’s directions of 5 October 2018, his Honour intends to determine the respondent’s s 587 application ‘on the papers’ in respect to matters C2018/4816 and AB2018/438. A decision will be published by his Honour in due course.

Application C2018/4910, being a general protections application not involving a dismissal, is concluded as far as the Fair Work Commission is concerned.

[12] On 28 November 2018, Ms Summers emailed the Commission in these terms:

I sought assistance from the Commission due to my employers outright beligerance and mistreatment of myself and fear experienced while being bullied.

For several months I have not had capacity to endure the psychological trauma sustained while being bullied and isolated.

The employer made agreement to engage independent investigators and never did so , they have engaged litigators and are escalating rather than trying to negotiate any civil or rightful resolution.  

I remain employed but no return to work has been negotiated or facilitated. 

I will provide certification of capacity to the commission up to date and provide information in the event a new application involving dismissal will need to be made. The employer representative is uncivil, rude belligerent, and exasperating my injury.

Thank you

I seek the right to seek determination and advise the commission that these matters are ongoing.

[13] There has been no further communication from Ms Summers, or Mr Cowen to date (save for references in the Postscript to this Decision) and no explanation for not complying with the Commission’s directions.

Application to dismiss applications

[14] Mr Wilson provided an affidavit in which he traced, in more detail, the conduct of the matters and focused in particular on his frequent requests to have the ASU particularise the three claims made on behalf of Ms Summers, without success. Mr Wilson also stated that:

At the time of making this affidavit:

(a) I have not received a reply to any of the letters or emails sent to ASU on and from 30 August 2018;

(b) I have not received a reply to my telephone calls to Mr Cowen on and from 11 September 2018;

(c) I have not been served with any notice of the Applicant's representative ceasing to act; and

(d) I have not been served by the Applicant with any evidence in support of the First, Second or Third Applications.

[15] In further evidence, Mr Wilson stated that Ms Summers has not attended the REDI workplace since 3 August 2018. Ms Bourke, REDI’s General Manager had informed him that REDI had received two or more enquiries seeking references in support of other employment applications made by Ms Summers.

[16] As Mr Wilson’s evidence has not been contradicted or challenged by Ms Summers or the Union, in compliance with my directions or otherwise, his evidence is accepted.

SUBMISSIONS

[17] In written submissions, REDI sought the following orders:

1. Pursuant to section 587 of the Fair Work Act 2009:

(a) Proceeding AB2018/438 is dismissed;

(b) Proceeding C2018/4816 is dismissed; and

(c) Proceeding C2018/4910 is dismissed.

2. Pursuant to section 611 of the Fair Work Act 2009:

(a) the applicant; or

(b) in the alternative, the applicant’s representative bears the respondent’s costs.

[18] Mr Wilson’s submissions note that since the first application was lodged, Ms Summers has been represented by the ASU. She has made various allegations of bullying and harassment, the downgrading of the seniority of her position, being a workplace change she had not been consulted about under the SCHADS award, and various breaches of the General Protections provisions of the Act, in light of her other allegations.

[19] Mr Wilson set out the relevant provisions of s 587 of the Act and powers of the Commission to dismiss an application for want of prosecution and/or failing to comply with the Commission’s directions; see: Chand v State Rail Authority of NSW PR975108; D v East Coast [2013] FWC 3070 and Ayaz v Transdev NSW South Pty Ltd [2015] FWC 7098 (‘Ayaz’). Mr Wilson highlighted the obligations on the Commission under s 577 to exercise powers and functions in a manner which:

(a)  is fair and just; and

(b)  is quick, informal and avoids unnecessary technicalities; and

(c)  is open and transparent; and

(d)  promotes harmonious and cooperative workplace relations.

In doing so, he referred to my comments in Ayaz at [42] to [43] as follows:

[42] There are obvious practical and logistical reasons why matters such as this should be conducted as quickly as possible. These include the employer’s entitlement to arrange its workforce or recruit a new employee, so as to minimise any dislocation to the business caused by an employee’s dismissal.

[43] In order to facilitate the above objective, it is incumbent on the person who initiates proceedings, to prosecute their case within reasonable time constraints. Of course, this does not mean that extraneous factors or delays caused by other parties, will be the fault of an otherwise diligent litigant. However, where there are large slabs of unexplained inactivity in pursuing one’s claim, then it may result in the Commission dismissing the matter, based on a failure to diligently prosecute the case. So it is here.

[20] Further, Mr Wilson submitted that Ms Summers’ anti-bullying and other applications have no reasonable prospects of success because:

(a) the applicant has failed to particularise, and adduce any evidence in support of her substantive actions;

(b) the applicant’s substantive applications have no reasonable prospects of success; and

(c) accordingly, the applicant’s substantive applications should be dismissed, pursuant to section 587 the Act.

[21] The evidence of Mr Wilson in relation to the F72 Application, is that the applicant has not identified or adduced evidence of any actual bullying and harassment in her workplace.

[22] In respect to the dispute application and the General Protections application, the evidence is that:

(a) the respondent and the applicant are covered by the Labour Market Assistance Industry Award 2010;

(b) the only change to the applicant’s employment was to the effect that she ceased reporting to the Executive Services Manager position and instead reported to the General Manager (being a more senior position) and her role is otherwise unchanged;

(c) the applicant has not attended the respondent’s workplace since 10 August 2018;

(d) the applicant is actively seeking other employment;

[23] Mr Wilson put that there was no change – let alone a major change – in the organisational structure of REDI, such as to trigger any consultation clause in the Award. The only change was the person to whom Ms Summers reported.

[24] In the alternative, Mr Wilson submitted that the matters should be dismissed for want of prosecution in that the evidence established that Ms Summers and/or the ASU have failed:

(a) altogether, to:

(i) properly particularise her applications;

(ii) communicate with the respondent in relation to her applications and the conduct of the proceedings in the Commission;

(b) to serve or file any material in relation to her application(s) in accordance with directions made by Commissioner Johns on 6 September 2018;

(c) to appear before the Commission on 3 October 2018; (d) to explain her failures in (b) and (c) above; and

(e) generally, to facilitate and prosecute the timely and expeditious determination of all three substantive applications.

[25] In summary, the applicant and/or the ASU have failed to comply with a series of directions of the Commission and failed to provide a reasonable excuse or explanation as to her conduct.

[26] As to costs, Mr Wilson submitted that:

(a) the evidence shows the F10 Application is so obviously untenable that it cannot possibly succeed;

(b) the evidence shows the F8C Application is so obviously untenable that it cannot possibly succeed;

(c) the evidence shows the real purpose for filing the F10 Application and F8C Application was to pressure the respondent to accept a settlement of the F72 Application;

(d) either:

(i) ASU; or

(ii) ASU and the applicant,

knew, or ought to have known, at the time the applicant instituted these proceedings that there were no substantial prospects of success; and

(e) accordingly, the F10 Application and F8C Application were instituted without reasonable cause.

See: Church v Eastern Health t/as Eastern Health Great Health and Wellbeing[2014] FWCFB 810 and Keep v Perform Automobiles Pty Ltd [2015] FWCFB 1956.

CONSIDERATION

[27] The Commission’s power to dismiss an application are set out generally at s 587 of the Act. I set out the section below:

SECTION 587

Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[28] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because such an outcome results in the extinguishment of a person’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In the vernacular, the application is dismissed before an applicant has had his or her ‘day in court’.

[29] That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated a persistent unwillingness to properly engage with the Commission in respect to her application. She continues to ignore the Commission’s directions and has now failed on two occasions to file any material or submissions in respect to the s 587 application. The applicant has made no attempt to properly explain these failures, despite being warned of the possible consequences. Given this history, I have little confidence that the applicant will, at some future point, seek to desist from this dilatory conduct.

[30] In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at para [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended “to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned” (s.381).’ [endnotes omitted]

[31] As is apparent from the chronology of events described above and the uncontested evidence of Mr Wilson, there has been a litany of non-compliance with the Commission’s directions by Ms Summers and her Union representatives. While I accept Ms Summers has been experiencing severe anxiety and emotional distress, for which she has been on workers’ compensation (although there is no evidence of her incapacity to pursue her application since Dr Ranasinghe’s opinion of 14 August 2018), at all times, Ms Summers has been represented by the ASU and at the very least could have provided instructions to the Union. I note the ASU has not filed a Notice of Representative Ceasing to Act, so the criticism of the failures to comply with directions must fall equally at their feet. I also accept, that despite Mr Wilson’s repeated requests to the ASU to particularise the applicant’s claims and applications, nothing has been forthcoming.

[32] Nevertheless, Ms Summers has not been so incapacitated that she is unable to respond to perfectly respectful communications form REDI’s lawyer. However, her responses, including those belatedly replying to directions of the Commission, fail to address reasonable requests and directions. Rather, she simply makes highly emotive, derogatory and unpleasant allegations of belligerence and mistreatment, including alleging unprofessional conduct, while stressing her heightened emotional state and psychological condition.

[33] Accordingly, I cannot be satisfied that there is likely to be a significant change in the current inertia of the proceedings, which appear to have no end in sight, or at all. To leave the applications in this state would be contrary to the proper administration of justice. To leave the employer in a suspended state of inactivity, with applications which show no sign of being prosecuted by Ms Summers or the Union, is an intolerable denial of natural justice. It represents a significant prejudice to the respondent. The decision in Chand is particularly pertinent in this case. At [48], the Full Bench said:

[48] The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.

[34] In my view, the respondent has made out its case for two of these applications to be dismissed for want of prosecution. This finding would be sufficient to dismiss the applications under s 587 of the Act. However, I make the following observations and conclusions on the material known to the Commission, which is not in contest, or has not been contradicted.

[35] I am satisfied that the applicant’s Stop Bullying application, has little prospects of success given:

● she has not been in the workplace since 3 August 2018 and there is no cogent evidence that her return to work is likely, or at all. The last known information is that the applicant has moved from Dubbo to the Central Coast;
● the evidence is that the applicant has been seeking alternative employment;
● from the information in the applications, it appears her real grievance has more to do with a complaint that the position she had applied for, and commenced working in, was less senior than she had imagined, or had been led to believe. As I explained to her in the first conference on 31 July 2018, in the circumstances, her case appeared to be more a contractual dispute, than a stop bullying application; and
● the two persons named as respondents in the original s 789FC application were Ms Irene Brown and Mr Shane Edwards and other ‘unknown persons’. Mr Edwards had original carriage of the matter as the respondent’s lawyer, but he is not acted in this role for some time. Mr Wilson is REDI’s legal representative. It goes without saying that simply saying she was bullied by ‘unknown persons’, cannot result in any orders against those persons who are not properly identified in the application.

[36] Given the circumstances, it is unlikely Ms Summers will be able to demonstrate there is a risk she will be bullied at work in the future, as required by s 789FF of the Act. This is a fundamental jurisdictional prerequisite to any order the Commission might make. Absent any future risk to health and safety, no orders can be made under s 789FF of the Act.

[37] Although strictly unnecessary, I am persuaded that Ms Summers’ applications are likely to have no reasonable prospects of success. That said, obviously if Ms Summers resumes work on a WorkCover return to work plan, or otherwise resumes her employment with the respondent, (both of which appears highly unlikely), and the circumstances are such as she:

● believes stop bullying orders are necessary; or she
● lodges a dispute in respect to a matter arising under the Award; or
● such other application under the Act;

then fresh applications can be filed with the Commission accordingly, subject to all jurisdictional requirements being satisfied. In other words, her rights as an employee are not extinguished so long as she remains an employee of the respondent, which appears to be the current position, notwithstanding she is not at work and has not been in the workplace since 10 August 2018. Similarly, this decision in no way affects Ms Summers’ entitlements for workers’ compensation benefits which have arisen and may be ongoing, arising from the State workers’ compensation legislation.

[38] Given that s 587 does not limit the circumstances in which the Commission may dismiss a matter, and that I am satisfied that Ms Summers and the ASU’s have failed to properly prosecute these applications, it is not strictly necessary to make findings as to prospects of success. However, at least in respect of the Stop Bullying application, and the circumstances I have earlier set out, such a conclusion would seem reasonable and appropriate.

[39] In addition, as I earlier mentioned, the s 372 General Protections application has been concluded as far as the Commission is concerned, so no order to dismiss that application is necessary. In any event, the limitations of the Commission’s jurisdiction under the General Protections provisions of the Act, do not permit the Commission to make any deliberative orders. It would be a jurisdictional error, if I ordered matter C2018/4910 be dismissed.

[40] For the reasons I have expressed herein, I am satisfied that the applications in matters C2018/4816 and AB2018/418 should be dismissed, pursuant to s 587 of the Act.

Costs application

[41] Given the relatively recent enactment (2013) and unique nature of the Stop Bullying jurisdiction of the Commission under Part 6-4B of the Act, it is unsurprising that there are few decisions on costs applications, arising under this Part of the Commission’s jurisdiction; see: Application by HWS [2014] FWC 4476 per Hampton C; Application by Hill [2014] FWC 5588 per Hatcher VP; Application by Woods [2015] FWC 6620 per Bull DP; King v Dixon and others [2018] FWC 2433 per Bissett C, and my decision in Salama v Sydney Trans and others [2018] FWC 5756. In all but two of these decisions there was no order made for costs.

[42] Unlike the Commission’s unfair dismissal jurisdiction, Part 3-2, which has additional discrete costs provisions (s 400A), there is no specific, or additional provisions under Part 6-4B dealing with costs applications in Stop Bullying matters. It follows that any such application will fall for determination under the Act’s general costs provisions at s 611 and the principles which have been considered and established by the Commission under that section. Section 611 provides as follows:

‘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).’

[43] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810 a Full Bench of the Commission considered the operation of s 611 and summarised the principles to be applied in costs applications. At paras [26]-[30] the Full Bench said:

‘[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:

2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.

[27] In the context of s.570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs and that the power should be exercised with caution and only in a clear case. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act.
[28] We now turn to the exceptions to the general rule expressed in s.611(1) and the meaning of the expression ‘vexatiously or without reasonable cause. (endnotes removed)

…

[30] We now turn to the expression ‘without reasonable cause’. A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union., Wilcox J put it this way:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”’

[44] The primary contention of the respondent is that it should have been reasonably apparent to Ms Summers and the ASU that her Stop Bullying application had no reasonable prospects of success. That being so, I refer to a Full Bench decision which further developed the principles to be applied under s 611(s)(b). In Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956, the Full Bench said at paras [18]-[19]:

‘[18] As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that ‘it should have been reasonably apparent’ to that person that their application had ‘no reasonable prospect of success’. The expression ‘should have been reasonably apparent’ in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.
[19] There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had ‘no reasonable prospects of success’.  In Deane v Paper Australia Pty Ltd11 a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;

“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.’ (endnotes removed)

[45] Added to these authorities is the weight of the High Court’s judgement in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 in which consideration was given to the meaning of the phrase, ‘no reasonable prospect’ in the context of s 31A of the Federal Court of Australia Act 1976. The High Court majority (Hayne, Crennan, Kiefel and Bull JJ) said:

‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.’

[46] In applying these general principles it is necessary for the Commission to objectively consider whether any of the grounds in s 611(2) apply to the circumstances of these 789FC and s 739 applications. Whether such applications have no reasonable prospects of success is a finding which should only be reached with extreme caution and where the applications are manifestly untenable or groundless. A finding of unreasonable prospects of success will need to be established before the Commission exercises its discretion to order some, or all of the other parties’ costs.

[47] That said, I accept that REDI has been legally represented in conferences convened by the Commission and the lawyers have prepared responses to the applications, letters and emails to Ms Summers and the ASU. However, these conferences have been brief, with little or no outcome, and communication with Ms Summers and the ASU have been largely ignored, or responded to with diatribe. There have been no formal Commission proceedings in respect of any of the applications, for the very reason that Ms Summers refuses, or is unable to engage with the process. In the circumstances and the Act’s presumption that parties will bear their own costs in matters under the Act, and given that two of the applications are to be dismissed (the other concluded), I am not satisfied that the preconditions under s 611(2) of the Act have been satisfied, such as to justify the exercise of my discretion to make costs orders against Ms Summers or the ASU.

[48] As mentioned earlier, the Commission has no jurisdiction to dismiss a 372 General Protections application. That matter is concluded as far as the Commission is concerned and the application for costs in the matter is dismissed. Orders giving effect to my conclusions are published contemporaneously with this decision.

POSTSCIPT

[49] After preparing the final draft of this decision and before publication, Ms Summers made two phone calls to Chambers on 29 January and 31 January and informed my Associate that she was now fit to resume work and would be attending REDI’s workplace this Friday 1 February 2019. In the second phone call on Thursday 31 January 2019, she asked my Associate as to her options after being told by REDI that she would be resuming duties under the supervision of Ms Brown. My Associate correctly informed her that it was inappropriate for him to give her any advice and that if she had anything she wished to put to the Commission for the Deputy President’s consideration she should do so in writing.

[50] Ms Summers then sent an email to Chambers on 1 February 2019, confirming she was returning to work that day under advisement from her rehabilitation Case Manager, but was concerned she was returning to a less senior position, reporting to a Compliance Coordinator and her former duties had been restructured. She continues to insist that this was not the senior role she had initially accepted at REDI. She sought advice from the Commission as to the status of her contract of employment.

[51] It is plain that Ms Summers continues to dispute the terms of her contract of employment and the supervisory arrangements REDI may have in place if she returns to work. If this is so, it is irrelevant to my conclusions set out earlier in respect to Ms Summers and the ASU’s failure to properly pursue her filed applications or answer the respondent’s application to dismiss her applications, pursuant to s 587 of the Act which I intend to do.

[52] In any event, assuming Ms Summers has returned to work, I refer to paragraph [37] above where I refer to Ms Summers rights to raise matters in respect to her ongoing employment, consistent with any such rights she might have under the Act.

DEPUTY PRESIDENT

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