Ms Lorraine Meloni v Verifact Pty Ltd

[2010] FWA 3647

[2010] FWA 3647

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Ms Lorraine Meloni
v
Verifact Pty Ltd
(U2009/10026)

DEPUTY PRESIDENT MCCARTHY PERTH, 7 MAY 2010

Termination of employment – application for costs.

Background

[1] On 2 July 2009 Ms Lorraine Meloni (the Applicant) made an application pursuant to s.643 of the Workplace Relations Act 1996 (the WR Act) that her employment with Verifact Pty Ltd (the Respondent) had been terminated harshly, unjustly or unreasonably.

[2] On 10 July 2009 the Respondent lodged a Notice of Motion to Dismiss the Application as Frivolous, Vexatious or Lacking in Substance (the Notice of Motion). The grounds relied upon were an attachment headed “Summary of Facts in Support” (the Employer’s Summary). The Employer’s Summary essentially asserted that the employment was not terminated at the initiative of the Respondent. The Notice of Motion indicated an objection to conciliation before that motion was dealt with.

[3] On 10 July 2009the Respondent also lodged a Notice of Employer’s Appearance (Employer’s Notice). In the Employer’s Notice the Respondent referred to the Notice of Motion as the grounds for termination. I took from that that there was an assertion by the Respondent that the employment had not been terminated at the initiative of the employer and hence, no grounds of termination were relevant.

[4] Accordingly, a Notice of Listing was issued on 28 July 2009 for a hearing to be held on 9 October 2009. At the request of the Respondent, due to their unavailability, this listing was cancelled and the matter was then re-listed for 5 November 2009.

[5] The Respondent attended the hearing on 5 November 2009 by telephone. The Respondent was present in Brisbane. The Applicant attended in person in Perth. Neither the Respondent nor the Applicant were represented. The hearing proceeded but it became obvious to me during that hearing that the matter could not effectively and fairly be dealt with by telephone. I therefore adjourned the matter and it was re-listed for a hearing on 3 December 2009.

[6] Before the conclusion of the hearing on 5 November, I made a number of comments directed in effect as advice to the parties. Those comments were as follows:

“PN110

THE DEPUTY PRESIDENT: All right. Well, I’m going to re-list it for a more formal hearing. This was supposed to be a formal hearing but I don’t think the facilities are conducive to it being conducted properly and fairly. I will expect, Ms Allen, for you to properly present any evidence you wish to present and be properly able to cross-examine Ms Meloni if she wishes to give evidence and to also be in a position to cross-examine anyone else that she wishes to call.

PN111

Similarly, Ms Meloni, I’ll expect you to be in a position to provide and give any evidence and cross-examine any evidence that is sought to be introduced by the respondent. Now, can I emphasise to both of you that the application here is that there is no case to be put. The application also, that is that it is frivolous, vexatious or lacking in substance, the application, Ms Meloni, even if that notice of motion is not established, the application you’ve made is that the termination even if there was a termination at the initiative of the employer was harsh, unjust or unreasonable.

PN112

It is going to be quite difficult for you to establish in my view that it was if you’ve given indications of an intention to resign, you’ve facilitated the transition of or induction of another employee into the organisation and what you appear to be really criticising is the manner in which the date of your departure was given to you and the competence or relationship or lack thereof between yourself and the Western Australian manager.

PN113

Now, if they are the issues that you consider are good grounds for asserting an unfair termination, you are going to have some convincing to do. I’d also alert you to the prospect that if this matter proceeds and if there are costs incurred and if it is found that there was no reasonable - by the respondent no reasonable prospect of you succeeding, then costs can be awarded against you, so if the respondent for example flies over from Brisbane, if they get representation and that costs them and if it’s later found that you had no reasonable prospect of success and they make an application, those costs can be awarded against you.

PN114

You need to be alert to that so I suggest to you, Ms Meloni, that you get some proper advice about your application and I suggest to you, Ms Allen, and Mr Griffiths and Mr Hogan that you get some proper advice about, (1) your notice of motion and, (2) the application that Ms Meloni has lodged, then we might be in a position to deal with this matter in a more appropriate manner. Ms Meloni, is there anything you wish to comment on or state?”

[7] The Respondent sought to have the hearing on 3 December adjourned essentially on the grounds that they were seeking legal advice. I granted that request, however proceeded with a Directions Conference on that date.

[8] On 30 December 2009 I issued a Notice of Listing for a hearing on 19 February 2010 and also issued Directions requiring the Respondent to lodge an outline of argument by 22 January 2010 and the Applicant to lodge an outline of argument by 5 February 2010.

[9] The Respondent lodged its outline of submission on 22 January. On 27 January the Applicant emailed that she wished to withdraw the application. The hearing was therefore cancelled on the grounds that the matter had been discontinued.

[10] On 4 March 2010 the Respondent lodged an Application for Order for Costs (the Costs Application). The grounds of that application are as follows:

“1. The applicant acted unreasonably in failing to discontinue the proceedings relating to her constructive dismissal application under s 643 Workplace Relations Act 1996 (Cth).

2. Considering all the circumstances, a reasonable person in the position of Ms Meloni would not have failed to discontinue the constructive dismissal proceedings after the comments made by Deputy President McCarthy at the hearing of this matter (which ultimately did not proceed) on 5 November 2009.

3. It should have been reasonably apparent to the Respondent at the conclusion of the proceedings on 5 November 2009 that her application had no reasonable prospect of success.

4. The Respondent failed to provide the Commission with any evidence that seriously challenged the facts asserted by the Applicant.

5. The Respondent maintained that she had been dismissed notwithstanding the clear evidence that the Respondent had resigned from her employment. Attached and marked 'Annexure 1' is a copy of an email sent by the Respondent to the Applicant on 18 March 2009 confirming that she had resigned from her employment with the Applicant.

6. Further, the Respondent maintained that she had been constructively dismissed on 12 June 2009 by way of mistreatment which allegedly occurred over a number of months leading up to 12 June 2009. However, the Respondent sought work with the Applicant as an independent contractor on 5 June 2009. Attached and marked 'Annexure 1' is a copy of an email sent by the Respondent to the Applicant dated 5 June 2009 seeking work as an independent contractor.

7. The jurisdictional requirements of s 658(2)(a) have been satisfied. The Respondent caused costs to be incurred by the Applicant due to her unreasonable failure to discontinue her application after 5 November 2009.

8. The Applicant seeks an order for its costs of $6,608.80 which were incurred defending matter 02009/10026 to be paid by the Respondent.”

[11] The Costs Application was listed on 6 April 2010 for hearing on 16 April 2010. The Applicant emailed on 7 April 2010 advising that she would not be attending the hearing due to heavy work commitments. The Applicant also outlined in the email her reasons for discontinuing the application. I shall return to those reasons later.

[12] The Respondent was then asked whether they preferred the costs application to be dealt with in person or on the papers. They requested it be dealt with on the papers. I therefore requested that the Respondent provide an outline of submission by 21 April 2010, which they complied with. I allowed the applicant the opportunity to respond to those submissions, which she did not.

Consideration

[13] The Respondent asserts that the Applicant should have been aware from 5 November 2009 following my comments on that day that she had no reasonable prospect for in her application. They seek costs incurred from that day.

[14] In support of their contentions the Respondent refers to paragraph 113 of the transcript. However Paragraph 111 makes it clear that my comments were directed at the merits of the application, it was not directed at the Notice of Motion itself. Indeed I made no comment about the prospects of success of the Notice of Motion at all.

[15] The comments I made also need to be seen in the context of the advice to both the Applicant and the Respondent that they get some proper advice.

[16] The Respondent’s submission also states that the Applicant discontinued the application on 18 February 2010. The inference appearing to be made that it was only at that juncture that the Respondent was aware that the matter had been discontinued. Whilst the Applicant did not lodge the Notice of Discontinuance until that day it was clear from 27 January 2010 that the Applicant was not proceeding.

[17] It is important to also note that the Applicant has not conceded anything in regard to her application. She has not conceded that her employment was not terminated at the initiative of the employer, nor that she regards her application as having limited chances of success. Her sole reason for not proceeding is the costs she considered she would need to incur in prosecuting her application.

[18] The actions of the Respondent also need to be taken into account in considering the application for costs. In that regard I consider that the actions of the Respondent did not facilitate the expeditious and efficient dealing with the matter.

[19] Firstly, the Respondent appeared to be ill prepared to properly pursue their Notice of Motion when I endeavoured to hear it on 5 December 2009. They were not prepared to present any evidence and were obviously unfamiliar with the type of proceeding that was involved and the basis upon which I could make any findings. To be fair the facilities on that day were also not conducive to a proper dealing with the matter. I accept that their approach must be seen in the context of not being represented, however the employer is a relatively large organisation and should have been aware, or had the capacity to be aware, of the procedures that were involved in matters of this nature.

[20] Secondly, the materials relied upon and submissions made by the Respondent were not adequately outlined until the lodgement of the outline of their case on 22 January 2010. The Applicant decided, within days of that outline being provided to her, not to proceed.

[21] Thirdly, whilst there is no barrier to lodgement of the Notice of Motion that was lodged given the nature of the grounds of that motion, a more appropriate approach of the Respondent would have been to lodge a Notice to Dismiss the Application for Want of Jurisdiction on the grounds that there had not been a termination of employment at the initiative of the employer.

[22] Finally, the Respondent brought inconvenience and most likely some costs upon themselves. The substance of the Notice of Motion was adjourned twice at their request and the hearing that I did conduct, for the reasons outlined above, I do not consider they were adequately prepared for.

[23] I do not consider that the Applicant acted unreasonably in failing to discontinue the application. It was not until the Respondent lodged their outline of argument on 22 January 2010 that the Applicant would have had a reasonable basis to formulate her views about the application because in my view, the nature of their argument and the evidentiary basis that they relied in support of that argument was not properly outlined until that juncture.

[24] I have therefore decided against issuing an Order for Costs and dismiss the application.

DEPUTY PRESIDENT

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