Ms Laura Marie Forman v Archers Smash Repairs Gold Coast Pty Ltd
[2011] FWA 8840
•20 DECEMBER 2011
[2011] FWA 8840 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Laura Marie Forman
v
Archers Smash Repairs Gold Coast Pty Ltd
(U2009/11962)
DEPUTY PRESIDENT SWAN | BRISBANE, 20 DECEMBER 2011 |
[1] This decision relates to a costs application made by Archers Smash Repairs Gold Coast Pty Ltd [‘the costs applicant’] against Ms Laura Forman [‘the costs respondent’] pursuant to s.611 (2)(a) and (b) of the Fair Work Act 2009 [‘the Act’].
[2] The applicant has sought an order that the respondent pay its total costs in relation to the respondent’s application for an unfair dismissal remedy.
Relevant Legislation
[3] The Fair Work Act provides that:
- 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.
Note: FWA can also order costs under sections 376, 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).
Background
[4] The respondent had initially represented herself. At about the time of making her application, the respondent was due to give birth to her first child. Some mentions were postponed until such time as the respondent could be present at the Tribunal.
[5] Following some delay on the respondent’s part, the applicant brought an application pursuant to s.587(3) Dismissing applications which was unsuccessful. By that stage, the respondent was represented by an industrial relations advocate.
[6] The history of the progression of the matter is as follows:
• The Application for an Unfair Dismissal Remedy was received by Fair Work Australia on September 2009.
• A Conciliation Conference was held on 28 November 2009.
• A telephone conference was set for 6 January 2010. However, as the respondent was due to give birth at that time, the conference was rescheduled. The applicant was available to attend the conference earlier and this was accepted by the respondent and that conference was held on 19 November 2009. That conference did not resolve the matter.
• A Notice of Listing and Directions issued on 23 November 2009.
• The hearing was scheduled for 23-25 March 2010.
• The respondent had failed to meet the time frame for submitting further documentation and a conference was rescheduled for 3 March 2010.
• At that conference, the respondent claimed that she had not received any discovery documents from the applicant. The applicant [while stating that it had sent the documents] committed to resend the material by 12 March 2010.
• The respondent advised that she was seeking legal representation and was given until 19 March 2010 to advise if this had occurred.
• The hearing dates were amended to 5 - 8 July 2010.
• The respondent failed to make a response with regard to legal representation.
• On 1 April 2010, the applicant lodged its s.587(3) Application. That hearing was held on 28 April 2010.
• At that hearing, the respondent had engaged the services of an industrial relations advocate.
• The s.587(3) Application was unsuccessful and time frames were set for the progression of the matter.
• Those time frames were ultimately met by the respondent.
• In dismissing the application, the respondent was warned that there would be no further amendment of those time frames.
• The decision of the Tribunal was issued on 18 February 2011.
• The Application for Costs was received within the appropriate statutory time-frame.
• The hearing of that matter was delayed due to health issues on the respondent’s part and a cancellation of a hearing date due to unforseen circumstances on the member’s part.
• It should be noted that in the case of some delays, they occurred with the concurrence of the applicant.
[7] There is little question that this matter has taken a long time to be finalised. However, I was satisfied at the time that, once the respondent had engaged the services of an industrial relations advocate, the matter would proceed appropriately. This did occur, with some amendment which I had not viewed as unreasonable.
The applicant’s submissions
[8] The applicant’s claim is that the respondent diverted from her original claim in her unfair dismissal application [i.e. that she was dismissed summarily because of her pregnancy] and made a number of allegations against the respondent, without any evidence to support those claims.
[9] The applicant believes that the respondent’s claims were made vexatiously and without reasonable cause [s.611(2)(a)] and that it would have been reasonably apparent to the respondent that her application had no reasonable prospect of success [s611(2)(b)]
[10] For the purpose of considering the applicant’s claim, the following are the reasons the applicant provided to the respondent upon summarily dismissing her employment:
- “You did at several times at Ashmore within the State of Queensland perpetrate a fraud upon Archers by persuading its debt-factoring provider ..... [Premium] NOT to contact Rodney Albert Archer a Director of Archers DIRECTLY so as to inform him as to the true financial status of Archers’ then factoring debt due to it on the grounds that you feared the loss of your employment if it did so because it would then have become......... In so preventing the said Rodney Albert Archer from becoming aware of the true financial status of the subject factoring debt you caused Archer’s business to suffer severe liquidity problems and otherwise placed the financial security of the same in jeopardy such that it suffered and will continue to suffer considerable loss and damage particulars whereof are still being assessed.” [Tribunal highlight]
• Her pregnancy;
• The ‘factoring’ issue [which the respondent believed had been resolved prior to her dismissal];
• Being required to fix her mistakes in her work;
• Being told she had lost her permanent position and was to become a casual employee;
• The applicant alleging that she had resigned her employment;
• Feeling intimidated by the applicant; and
• Further detail under the heading ‘The said fraud’. These claims were numbered 1-11 and I viewed them as a compilation of her claims against the applicant.
[12] Later, in the respondent’s affidavit, the following issues were raised.
- • The applicant had required the respondent to create fake invoices for the purpose of supporting a cash flow for its business.
• That the applicant was defrauding Premium Funding and the applicant’s relationship with that business was “built on lies and deception”. [Respondent’s statement - point 13]
• That the applicant had retained a certain amount of ‘undeclared cash’ on his premises for the purpose of avoiding Taxation obligations
• That the applicant had been trading whilst insolvent, amongst other claims. [Respondent’s statement - point 14]
[13] These claims were dispelled through the evidence of applicant witnesses. The applicant says that the claims were pursued vexatiously by the respondent in the knowledge that the respondent could not provide any evidence to support them and were made for the sole purpose of embarrassing and annoying the applicant.
[14] In its defence of these allegations, the applicant said it incurred considerable costs which included a review of the claims by its accountant and other witnesses.
The Respondent’s submissions
[15] The respondent was unrepresented when initially filing her application for an unfair dismissal remedy.
[16] The reference to her pregnancy in her application was that she thought her pregnancy may have been an issue in her termination of employment.
[17] The respondent had not only raised the question of her pregnancy but had also referred to a number of other issues which she said made her summary dismissal unfair [these are cited in point 11 of this decision].
[18] The respondent submitted that there had been no finding made in the decision to dismiss the unfair dismissal claim that she had committed any ‘fraud’ within the generally accepted meaning of the word. Certainly in the final decision, the point was made that there had been no evidence to show that the respondent had gained anything in a monetary sense by her actions.
[19] The respondent said that when the applicant made its application to dismiss the application [s. 587 Dismissing applications], none of the claims now made by the respondent were made at that point.
Tribunal Finding in Unfair Dismissal Claim
[20] The Tribunal found that the respondent was out of her depth in the job she was performing and was covering up each mistake she had made with a further mistake. As well, the finding showed that the respondent had perpetrated a ‘high level of deception’ with regard to her duties towards the applicant and a level of inappropriate behaviour which was acute in the circumstances.
Conclusion
[21] The respondent did make a sworn statement of her evidence. Her initial commentary contained in her application did not constitute sworn evidence and it was not admitted into evidence as such. The respondent represented herself initially and in my view, the ‘motivation for the application’ can best be construed in the context of the sworn statement [in conjunction with the earlier comments] which may be of assistance in fully articulating the motivation of the respondent in making her application.
[22] The applicant says that the respondent’s claim of being dismissed because of her pregnancy may, on its face, appear to constitute a “reasonable cause” but when the entirety of the claim is considered, its vexatious nature is established.
[23] In my view, the initial comments made by the respondent in her application for an unfair dismissal remedy are not vexatious. They are claims which she was entitled to litigate even if, at the end of the day, the applicant’s evidence was preferred over that of the respondent’s.
[24] The evidence showed that the issue of pregnancy was raised in the course of the hearing. The pregnancy was a matter of fact and could not in my view be seen as a vexatious attempt on the respondent’s part to pursue the matter.
[25] Having said that, there are components of the respondent’s claims contained within her affidavit which, in my view, require consideration within the context of s.611 (2) (a) as to whether the application was made ‘vexatiously’ or without ‘reasonable cause’ and s.611 (2) (b) as to whether it would have been ‘reasonably apparent’ to the respondent that her application had ‘no reasonable prospects of success’. These components relate to the allegation that the applicant was defrauding Premium Funding and the other related to Taxation obligations allegedly not being met by the applicant.
[26] As background to the consideration of the above points, I had formed the view in the hearing that the respondent was out of her depth in terms of the work she was performing for the applicant. I levelled some criticism towards the applicant in that regard. I also found that the respondent had compounded her difficulties by covering up each mistake with another. The dishonesty, which I found to constitute serious misconduct, was in the respondent hiding information from the applicant and purporting to act on the applicant’s behalf without authority.
[27] There had been no allegation made nor had I found that the respondent had acted fraudulently to benefit herself monetarily.
[28] The allegation that the applicant was defrauding Premium Funding, however, was one of the allegations which the applicant stressed should be particularly considered by the Tribunal. This was a situation where the applicant was required to defend its position. However, the allegation had been made in the applicant’s letter of termination to the respondent that she had ‘perpetrated a fraud’ upon the applicant by undertaking certain actions.
[29] A major plank of the respondent’s claim that she was unfairly dismissed was that she alleged that she had been under instruction to do the actions complained of by the applicant i.e. to ‘perpetrate a fraud’. That matter was tested in hearing and the applicant’s evidence was accepted over that of the respondent. Within that context, I have not found that element of 611(2)(a) to be established.
[30] In making the allegation that the applicant held amounts of cash for the purpose of avoiding the Taxation authorities, that the respondent had no evidence other than her own to rely upon. In this case, there was an allegation made and a denial made by the respondent and the matter went no further in the hearing. I have not viewed that claim as so unreasonable, within the context of the type of issues canvassed in this case, that it could be said to contribute to the respondent proceeding with her application without reasonable cause or with the knowledge that she had no reasonable prospect of success.
[31] It should be said that while the respondent gave evidence and no other witnesses were called [initially the respondent had suggested that she would call 5 witnesses], no reason was given as to why those witnesses were not called. In the exercise of my discretion, I have taken that into account and while the respondent’s claims ultimately were not accepted by the Tribunal, it is not to be assumed because of this that the respondent had no reasonable prospect of success on the facts or that her claims were vexatious.
[32] In R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia, [1978] the High Court stated:
“In considering whether a proceeding was instituted vexatiously or without reasonable cause for the purpose of s.824(1) [of the WR Act 1996] it is necessary to distinguish between the situation where an applicant has merely been unsuccessful on the case he or she has sought to propound and the situation where the applicant’s case was entirely misconceived. In relation to the former category, an application is not commenced without reasonable cause simply because the applicant’s arguments are rejected by the Court.” 1
[33] In these circumstances, I dismiss the application for costs.
DEPUTY PRESIDENT
Appearances:
Ms K. Prior for the Applicant
Mr R. Steinitz for the Respondent
Hearing details:
2011
Brisbane
12 September
1 R v Moore,; Exparte Federated Miscellaneous Workers’ Union of Australia, [1978] 14o CLR, 470, at 473, 14 December 1078
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