Ms S.W. - [2014] FWC 4476

[2014] FWC 4476

FAIR WORK COMMISSION

DECISION

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

Ms S.W.
(AB2014/1135)

COMMISSIONER HAMPTON

ADELAIDE, 7 JULY 2014

Application for costs in connection with an application for an FWC order to stop bullying - substantive application dismissed on jurisdictional grounds - whether should have been reasonably apparent to applicant that application had no reasonable prospects of success - whether other grounds warrant a costs order - application for costs dismissed.

1. Background to the costs application

[1] This matter arises in the context of an application by Ms S.W. under s.789FC of the Fair Work Act 2009 (the FW Act) for an order to stop bullying conduct. The applicant is a teacher employed under the School Education Act 1999 (WA) (School Education Act) and the workplace concerned is a public school conducted by the Western Australian Department of Education (the WA Department).

[2] The s.789FC application was dismissed by the Commission on jurisdictional grounds in a decision 1 issued on 2 June 2014 (the substantive decision). The basis of the decision was that the relevant workplace was not a constitutionally-covered workplace,2 and that even if bullying behaviour occurred, it could not lead to a finding that the applicant had been bullied at work within the particular meaning of the FW Act.3

[3] The substantive decision concluded as follow:

“[30] Ms S.W. indicted that she wished to discontinue the matter if a finding of this nature was made. Whilst that course of action is entirely reasonable, I am obliged to formally dismiss the application given my findings, and will do so, if the application is not expeditiously discontinued by the applicant.”

[4] The WA Department applied for costs immediately upon the substantive decision being issued by the Commission.

[5] Ms S.W. subsequently filed a notice of discontinuance in relation to the s.789FC application.

2. The costs application

[6] The WA Department has sought that costs be awarded against Ms S.W. principally on the following basis:

“.........

● It should have been reasonably open to the applicant that her claim had no prospect of success. The Commission’s own guidelines at page 4 clearly indicate which businesses are not constitutionally-covered workplaces and identifies amongst others, State Government departments.
● Even if the Commission had found there was jurisdiction to determine the matter the Order being sought could not be issued as the applicant was no longer located at the workplace where the alleged behaviour was occurring.
● The applicant’s response to 1.1 in Form F72 was inaccurate.” 4

[7] The reference to 1.1 in Form F72 refers to the original application and relates to whether Ms S.W. was still employed or engaged at the relevant workplace and/or required to still interact with the individuals cited in the application as being responsible for the alleged bullying conduct.

[8] Ms S.W. has opposed the costs application and in effect contends, amongst other matters, that:

● She was advised and referred to the Commission by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms S.W.

Details

AGLC: Ms S.W. [2014] FWC 4476
Case: [2014] FWC 4476
Decision Date: 7 JULY 2014

CaseChat Overview and Summary

In the case of Ms S.W., the applicant sought costs in relation to a previous application for an order from the Fair Work Commission to stop workplace bullying. The application was dismissed on jurisdictional grounds. The legal issues that arose in this matter were whether the applicant should have reasonably foreseen that the substantive application had no reasonable chance of success and if other grounds justified a costs order. The court examined the applicant's conduct and the circumstances surrounding the original application, ultimately finding that the dismissal of the substantive application was justified. The court found that it was not reasonably apparent to the applicant that the substantive application had no reasonable prospects of success. However, the court considered other grounds that might warrant a costs order. The applicant argued that the respondent's conduct had been vexatious and oppressive, but the court was not persuaded that this was sufficient to justify a costs order. The court concluded that the application for costs should be dismissed.

The court's reasoning was based on the principle that costs should not be awarded unless there are exceptional circumstances. The court found that the applicant's conduct was not vexatious or oppressive, and that the respondent's conduct did not warrant a costs order. The court also noted that the substantive application was not frivolous or without merit, and that the applicant had acted in good faith. The court held that the application for costs should be dismissed, and that the applicant was not entitled to recover any costs from the respondent. This decision highlights the importance of carefully considering the circumstances of each case before awarding costs, and the need for applicants to ensure that their applications have reasonable prospects of success before proceeding.

Orders