Ms Raylene Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services
[2013] FWCFB 5541
•12 AUGUST 2013
[2013] FWCFB 5541 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Townsville Aboriginal & Torres Strait Islander Corporation Health Services
(C2012/5391)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 12 AUGUST 2013 |
Appeal against decision [2012] FWA 2713 of Commissioner Simpson at Brisbane on 31 August 2012 in matter number U2011/13631, application for costs order.
[1] This decision concerns an application by Townsville Aboriginal & Torres Strait Islander Corporation Health Services (THS) for a costs order. The application relates to an appeal which was made by Ms Oui against an unfair dismissal decision and order of Commissioner Simpson. THS seeks an order for costs against Ms Oui under s.611 of the Fair Work Act 2009 (the Act) and an order under s.401 against Ms Oui’s representative, Mr O’Donnell.
The background to the application
[2] We should briefly refer to the background to the application. Ms Oui issued proceedings pursuant to s.394 of the Act seeking an unfair dismissal remedy. THS had summarily terminated her employment on the ground of gross misconduct. The Commissioner found that the breaches THS had relied upon as constituting that misconduct were not established on the evidence. None of them, alone or together, constituted a valid reason for the dismissal of Ms Oui, let alone summary dismissal. The Commissioner did find that at the time of Ms Oui’s dismissal there were concerns about her performance; it had been unsatisfactory. This finding was made in the context of those performance issues not being relied upon by THS in arriving at its decision to dismiss Ms Oui. Furthermore, as at the time of her dismissal, any unsatisfactory performance issues had not been the subject of a disciplinary process.
[3] The Commissioner made adverse findings against THS for failing to adequately notify Ms Oui of the reasons for her dismissal or to give her an opportunity to respond. Although he made no express finding that the dismissal was harsh, unjust or unreasonable, a fair reading of his decision reflects that he had reached that conclusion. He considered the appropriate remedy to be granted. The Commissioner observed that Ms Oui had confirmed she was not seeking reinstatement but compensation. He made a finding that it was unlikely she would have continued employment beyond a further period of six weeks. A deduction was made on the basis that Ms Oui had spoken to another employee in an inappropriate manner which had given rise to a grievance process and had contributed to the decision to dismiss her. Ms Oui appealed the Commissioner’s decision.
[4] The appeal was listed for mention before the Presiding Member for the purposes of addressing relief from filing complete appeal books and clarification of the scope of matters put in issue by the one ground which was pleaded in the notice of appeal. Mr O’Donnell indicated that the key complaint related to the order for compensation. He said no adequate opportunity was given to Ms Oui to be heard on the amount and the amount ordered was inadequate. We acknowledge the submission of THS that the notice of appeal could have been pleaded with more particularity but we consider it appropriate to give some recognition to the fact it was not drafted by experienced legal advisers and the nature of the challenge raised was described by Mr O’Donnell in the mention hearing.
[5] Subsequently, Mr O’Donnell made a telephone call to the Presiding Member’s chambers and requested approval for him to participate in the hearing of the appeal by telephone. The appeal had been listed for hearing in Brisbane. No notice of this request was given to THS. The request was refused and confirmation was given that the matter would proceed to hearing in Brisbane at the time allocated in the notice of listing.
[6] When the matter came on for hearing there was no appearance by either Ms Oui or Mr O’Donnell. THS was represented by counsel. Enquiries were made by way of a telephone call to Mr O’Donnell’s mobile phone number. We do not propose to repeat the detail of a discussion that was then had, it is referred to in the decision we issued subsequent to the date the appeal had been set. 1 It is sufficient for current purposes to record that Mr O’Donnell advised that neither he nor Ms Oui would be attending the appeal hearing. It seems that Mr O’Donnell had believed that when his request to participate in the appeal hearing by telephone was refused it should have been clear to the Commission that he would not be pressing the appeal any further. As the Full Bench decision notes this was not clear at all. We made a number of comments critical of Mr O’Donnell’s handling of this appeal. We also recorded the difficulty that there had been in contacting him and his failure to keep his contact details current. For the reasons we later give, it is not relevant to our consideration of the costs application to deal any further with these unsatisfactory aspects of how Ms Oui’s appeal was prosecuted.
The legislation
[7] The terms of ss.401 and 611 (as at the time this application was made) read as follows 2:
“401 Costs orders against lawyers and paid agents
(1) If FWA has granted permission in accordance with section 596 for a person to be represented by a lawyer or paid agent in a matter arising under this Part before FWA, FWA may make an order for costs against the lawyer or paid agent if FWA is satisfied:
(a) that:
(i) the lawyer or paid agent caused costs to be incurred by the other party to the matter because the lawyer or paid agent encouraged the person to start or continue the matter; and
(ii) it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b) that the lawyer or paid agent caused costs to be incurred by the other party to the matter because of an unreasonable act or omission of the lawyer or paid agent in connection with the conduct or continuation of the matter.
(2) FWA may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit FWA’s power to order costs under section 611.”
“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).”
Consideration and conclusion
[8] In the case of the application for an order against Ms Oui, THS relied on both ss.611(2)(a) and 611(2)(b). It submitted that she had made her application to appeal without reasonable cause and that it should have been reasonably apparent to her that her appeal had no reasonable prospect of success. In each case it was said that the notice of appeal did not disclose any cause of action, did not identify error and did not establish how the public interest was attracted. As we have earlier noted the application for costs against Mr O’Donnell was based on s.401 of the Act. Written submissions in support of the application were filed by THS and it requested the matter be dealt with on the papers. Mr O’Donnell filed submissions on behalf of Ms Oui and himself. Three statements were annexed to his submissions. They were from Ms Oui, Mr O’Donnell and a Mr Ahern. Mr O’Donnell agreed for the matter to be dealt with on the papers. THS filed written submissions in reply.
[9] We deal first with the application for costs directed to Mr O’Donnell. Based on the submissions and statements filed in respect to the application for costs we accept that Mr O’Donnell is not a lawyer. In representing Ms Oui he neither charged nor received a fee for doing so, accordingly, he is not a paid agent. 3 In the event we made this finding THS indicated that it would not press for an order against Mr O’Donnell. We need consider that matter no further.
[10] The application for costs against Ms Oui relies on both ss.611(2)(a) and 611(2)(b). The approach to be taken to each of the sections is addressed in the submissions for THS. Those submissions are consistent with the approach taken to applications under s.611 most recently addressed in Qantas Airways Limited v Carter. 4 The time at which we are to apply the considerations in s.611 is when Ms Oui made her application to appeal.
[11] We know from the documentation filed by Mr O’Donnell that Ms Oui was advised that she had not received a fair outcome in her unfair dismissal application and that the Commissioner had not properly calculated the amount that should have been paid to her. It is a fair inference to draw from the documentation that she was informed that an appeal would be lodged to try and increase the monetary remedy granted. Ms Oui said she was encouraged to file an appeal. It is also clear that she left it to Mr O’Donnell to file and prosecute that appeal.
[12] We accept the submission of THS that the notice of appeal is lacking in detail. However, as we have earlier noted, it was not drawn up by a lawyer nor an experienced paid agent. It does however indicate that the decision appealed is “The Compensatory Amount Awarded” and the one ground is that “The Commissioner erred in arriving at his conclusion.” The public interest is said to be enlivened by the fact Ms Oui was “not allowed to present her case fully.” It was these matters which were raised by Mr O’Donnell in the mention hearing when he was asked to identify what the key issues in the appeal were.
[13] We have considered the reasons for decision published by the Commissioner and the transcript of proceedings before him. The issue of compensation was barely raised in the hearing. Subsequent to the hearing written submission were filed on Ms Oui’s behalf and by THS. Ms Oui’s submissions did not address compensation at all. In that part of THS’s submission which dealt with the issue of remedy it said that any amount that might be awarded should be discounted on account of the conduct of Ms Oui. Little more was said. We were not taken to any other transcript or written submission that dealt with the amount of compensation which may be appropriate and any deductions that may be justified. We think it at least arguable in those circumstances that Ms Oui was not given an adequate opportunity to be heard on those matters. Accordingly, at the time the appeal was made, we are not persuaded Ms Oui instituted it without reasonable cause nor that it should have been reasonably apparent the appeal had no reasonable prospect of success.
[14] We have considerable sympathy for the position THS finds itself in. It has incurred legal costs in circumstances that should not have occurred. It should have been given adequate and proper warning that the appeal was not to be prosecuted on the day allocated for the hearing. Had that occurred its costs would have been significantly reduced. For the reasons we have given however we are required to apply the considerations in s.611 as at the time the appeal was made.
[15] We dismiss each of the applications for an order for costs.
SENIOR DEPUTY PRESIDENT
1 [2013] FWCFB 283.
2 Amendments have been made to these sections but the amendments do not apply to dismissals that occurred at the date of Ms Oui’s.
3 Section 12 defines “lawyer” and “paid agent”.
4 [2013] FWCFB 1811.
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