Ms Katherine Ikechukwu v Goodwin Aged Care Services Limited T/A Goodwin Aged Care Services

[2014] FWCFB 8168

[2014] FWCFB 8168

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Ms Katherine Ikechukwu

v

Goodwin Aged Care Services Limited T/A Goodwin Aged Care Services

(C2014/2612)

SENIOR DEPUTY PRESIDENT DRAKE

DEPUTY PRESIDENT SAMS

COMMISSIONER McKENNA	SYDNEY, 12 DECEMBER 2014
Application for costs of Full Bench appeal proceedings.

[1] This Full Bench delivered a decision on 15 September 2014[1]dismissing an appeal by Ms Ikechukwu from a decision of Commissioner Deegan dated 20 December 2013.[2] Commissioner Deegan had dismissed the application of Ms Ikechukwu for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[1]PR555439

[2]PR546139

[2]        Our conclusion in the appeal from Commissioner Deegan is set out below:

“[9] We are not satisfied that there is any substance in Ms Ikechukwu’s Grounds of Appeal. We have considered all of the material provided by Ms Ikechukwu and her father. We can identify no error in Commissioner Deegan's consideration of facts of Ms Ikechukwu’s application. Had we been persuaded by Ms Ikechukwu’s submissions that any of the factual matters identified by her or her father were in fact errors, we would still not be persuaded that any of those were, either individually or cumulatively, significant. We are not satisfied that any of the errors identified by Ms Ikechukwu, either individually or cumulatively, could have, if Commissioner Deegan had relied upon them, contributed to her reaching a conclusion supportive of Ms Ikechukwu’s application. None of the Grounds of Appeal outlined by Ms Ikechukwu is sufficient to attract the public interest. There is no appealable error. We refuse permission to appeal and, to the extent necessary, dismiss the appeal.”[3]

[3]PR555439 at para 9

[3] At the completion of the appeal proceedings Goodman Aged Care Services Ltd

(Goodman) notified its intention to seek costs of the appeal and it renewed that application
following our decision. The grounds on which Goodman seeks costs are set out below:

"3.1 The Respondent applies for an order requiring the Appellant to pay its costs of the Appeal in accordance with ss 400A and 611(2)(a) of the Fair Work Act 2009 (Cth) (the Act) as:

[2014] FWCFB 8168

i.           The Appellant lodged the appeal vexatiously and without reasonable

cause;
ii.	In circumstances where it was reasonably apparent that the appeal had

no reasonable prospects of success; and

iii.         The Appellant’s actions, in lodging the appeal were unreasonable acts

in connection with the continuation of the matter.

3.2 The Notice of Appeal was lodged with the Commission on 10 January 2014. It was lodged without reasonable cause as it fails to identify any error of fact, let alone a significant error of fact as required by s400(2) of the Act.

3.3 Through its submissions dated 12 March 2014 and its later submissions dated 28 August 2014 the Respondent set out the prerequisites to the appeal that the Appellant was required to meet and the absence of any appealable significant error of fact.

3.4 The Respondent submits that the appeal had no prospect of success considering the tests enunciated through Ashley Smith v Barwon Region Water

Authority [2009] AIRCFB 769 (28 Aug 2009). Nothing in the material provided by

the Appellant shows an error of fact of the Commission in the first instance.

3.5 The only new material and submissions provided by the Appellant on appeal can be found at pages 105 - 117 of the appeal book. That material contains allegations of bullying and harassment and emotive allegations against the Respondent incorporating terms such as ‘capricious, egregious, malicious and ambushed’. There is a significant amount of emotive material provided indicating the Appellant’s vexatious intent in the appeal. The Respondent submits the Appellant’s vexatious nature can be further inferred through the Appellant’s failure to pursue the appeal considering the common definition of that term.

3.6 The matter Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 considered whether costs should be paid on the test of whether a proceeding was instituted without reasonable cause. That test needs to be more than a finding that the argument is eventually unsuccessful but that, ‘where it appears that, 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.’ There is no mistake

of fact identified even taking the Appellant’s case at its highest.

3.7 Further considering Baker v Salva Resources Pty Ltd [2011] FWAFB 4014, the Respondent submits that the application had no reasonable prospects of success because it was manifestly untenable and groundless.”

[4]        Section 400(A)(1) and s.611(2) of the Act are set out below:

“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

[2014] FWCFB 8168

unreasonable act or omission of the first party in connection with the conduct or

continuation of the matter.”

“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 ss.376, 400A, 401 and 780.”

[5] Ms Ikechukwu’s father, who had represented her at the appeal, provided a response on her behalf entitled “Application for Security for Payment of Costs”. It is set out below:

“Matter No: C2014/2612: Katherine Ikechukwu v Goodwin Aged Care Limited Inc

We acknowledge the receipt of the Commission’s letter dated 13 October 2014 with thanks, delivered by hand through registered post on Wednesday, 22 October 2014. The transcript of the hearing of our appeal was an absolute shock of inaccuracy. For example what is the meaning of -‘What we can see is indirect inferences on Saturdays. Descriptions that much a blood vessel.’ (PN78) and many other horrible inaccurate transcript of the speaker’s statement. I wounder (sic) what was responsible for this - inefficient use and management of transcript equipment; distance video link problem or claim of unfamiliar assent of the speaker. I humble (sic) pointed this mistake out to request the Commission not to publish the transcript because it is an entire embarrassment.

The outcome of our appeal was an unfortunate development which we patiently respected to rest the matter due to our strong believe in the Ultimate Presence of the Universe. After all righteousness and justice are the foundation of His Throne and truth and mercy go before His Face (Holy Book of Law, Psalm 89 verse 14).

Following the decision of the appeal bench which confirmed the decision of the original decision maker we were disappointed the full bench did not see one important argument we hold and that was that the appellant was given a letter on Thursday, 20 June 2013 by 12 noon to attend a meeting same day by 02 pm, (sic) about two hours or less notice and in that letter that led to the appellant’s dismissal no mention of any allegation against her.

[2014] FWCFB 8168

Consequently she was taken unaware of the alleged offence against her. This approach was capricious and amount to ambushment.(sic) After the meeting she was dismissed and the letter of termination was posted same day which she received in her letter box the next day after she returned from a purported second meeting. The quick action of the Respondent was a clear indication that decision to dismiss the appellant had already been taken before the meeting. This was not only capricious but certainly undermine procedural fairness and fundamental principles of natural justice. During the hearing the speaker for the appellant tried to emphasise on this and pointed out that a memo to the police by the Respondent upon allegation of elder abuse early on Friday 21 June 2013 which the transcript consistently wrongly quoted as 24 June stated that the appellant had already been terminated; at that time the appellant had not received the termination letter. Cases we cited dealing with similar circumstance seemed not to be considered.

Beside the original decision maker considered irrelevant matters along with her own personal opinion in her decision talking about the frustration of the appellant which she never said she was on the several buzzing of Resident ‘C’ for assistance; describing the attitude of the appellant to telephone to request the Respondent to reschedule the meeting; the Commissioner said she was satisfied the appellant removed the buzzer when the buzzer log provided by the Respondent proved the buzzing of Resident ‘C’ was consistent even on the last night the appellant worked; the original decision maker failed to take into account appropriatel, (sic) an important material fact which was the critical medical condition of Resident ‘C’ which could cause him to do anything against himself and claim anything; and many others (paragraph 94-95).

On the whole we are aware the case was so complex that the Commissioner had no choice than to exercise her discretional power which unfortunately amount to substantial injustice to the appellant. According to (House v The King) even if the error may not be discoverable, the exercise of the discretion should have been reviewed on the ground that substantial wrong did occur. Again we are fully aware of the limits of the tribunal or Commission that it cannot fully deal on issues of ‘question of law’ which contributed to its difficulties to reverse the earlier decision.

However, as mentioned earlier we decided to respect the decision of the bench for reason of our integrity which cannot be altered by human. These statements may not be necessary at this stage since we did not appeal the case further but we do make them so that the Respondent will see how much lucky it was when the original decision maker ruined the chances of the Appellant to successfully appeal the case and to appreciate not only our patience but the fact that we decided for obvious reasons to rest the saga; aware that the Respondent had already learnt some lessons that it cannot deal brutally on its employee without question or recourse.

Grounds:

In spite of the fact that the outcome of the Appellant’s appeal was not allowed we still believe we have a valid argument and that our appeal was not unreasonable and merit judicial review under s604 of the FW Act if appealed further. Therefore, we vehemently oppose the Respondent’s application for cost and respectfully invite the Honourable President to note that due to abrupt termination of Appellant’s job she

[2014] FWCFB 8168

went through serious distressfulness, emotional and mental torture and depression for seven months and threatened her Father to become a hawker as she was financially embarrassed and could not pay her house rent within the period. She was lucky in the circumstance to have an understanding house owner who likes her descent (sic) behaviour and advised the house agent to allow her to continue to leave (sic) in the house until her finances improve.

In seven months she accumulated debt on house rent which amount to $7,560; electricity bill accumulated to $1,000; she had a debit balance of $3,000 on her credit card and it was suspended; she borrowed $1000 from her friend; the insurance of her car was cancelled as she could not meet up with the monthly payment; her car was overdue for service for 6 months and she continued to use the car un-serviced due to lack of money as a result it developed serious mechanical problem and she had to park the car. She later spent $1,200 to repair the car. She depended on her Father on a meagre income for her feeding and transportation in those hard times. A total cash debt of $12,560 mounted (Twelve Thousand Five Hundred and Sixty Dollars) which she is still struggling to settle.

In view of the above and we need not to mention, ss 375B and 611 of the Act will always remain discretional. Therefore, with all humility and due respect, we request the Honourable Senior President of the Commission to exercise her discretionary powers not to inflict further pain and debt to the Appellant to avoid substantial injustice to a large extent and further appeal for judicial review so that this matter can be put to rest.”

[6] Both parties have confirmed that they are agreeable to having this application resolved on the basis of the written submissions without a hearing in person.

Conclusion

[7] In our decision on appeal we determined that there were no errors of fact, significant or otherwise, identified in the decision of Commissioner Deegan. In so far as such errors of fact or significant errors of fact are necessary to establish that proceedings were commenced without reasonable cause, it is clear that there was no reasonable cause for commencing the appeal.

[8] Goodwin submits that absent such errors of fact or significant errors of fact the application for appeal had no reasonable prospects of success. Goodwin submits that the appeal was manifestly untenable and groundless. Our conclusion provides support for Goodman’s submissions in this respect.

[9] Goodwin also submits that the appeal was commenced vexatiously. We have considered the transcript of the proceedings before us and have reconsidered the issues in dispute. We have concluded that there is nothing to suggest that the appeal proceedings were instituted vexatiously, with the purpose of harassing and embarrassing Goodwin or obtaining a collateral advantage. Rather, we are satisfied that the appeal was lodged through ignorance and a consequent misunderstanding of what is required to succeed on appeal in proceedings such as these.

[2014] FWCFB 8168

[10] Balanced against our conclusion in the appeal, and Goodwin’s submissions, are the circumstances of Ms Ikechukwu and her father. We had before us an appellant and her representative who are not legally trained, who believed that the appropriate test on which to argue an appeal was whether she disagrees with the decision and who was represented by a parent who argued the appeal as her passionate defender against a decision which he considered contained unjust conclusions about the character and conduct of his daughter.

[11] Determination of an application for costs is a discretionary decision. In the circumstances of this application, after consideration of the circumstances of Ms Ikechukwu and her father, weighed against the submissions of Goodwin, we have decided to refuse Goodwin's application for costs.

SENIOR DEPUTY PRESIDENT

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