Ms Shannon Tobin v C.A Corling & M.G Corling T/A Paws a While Boarding Kennels

[2015] FWC 1925

[2015] FWC 1925[Note: An appeal pursuant to s.604 (C2015/2459) was lodged against this decision - refer to Full Bench decision dated 28 October 2015 [[2015] FWCFB 7378] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Shannon Tobin
v
C.A Corling & M.G Corling T/A Paws A While Boarding Kennels
(C2014/6934)

COMMISSIONER BULL SYDNEY, 23 MARCH 2015

Section 365 application, application for costs order, filed out of time, no scope to extend time for filing, application dismissed.

[1] In this matter, the applicant Ms Shannon Tobin filed a General Protections application (s.365) against C. A Corling and M. G Corling T/A Paws a While Boarding Kennels (the respondent) 1 alleging that she had been dismissed in contravention of the General Protection provisions of the Fair Work Act 2009 (the Act).

[2] The Commission’s jurisdiction in dealing with such applications is not to determine the merits of the application in the first instance; it is to deal with the dispute by way of mediation or conciliation through a compulsory conference. A final merit determination resides with the relevant courts or the Commission where agreed by the parties 2and if reasonable attempts to resolve the dispute are unsuccessful; a certificate under s.369 to that effect will be issued.

[3] The application was listed for a conciliation conference before Commissioner Stanton on 21 November 2014 in Newcastle. The notice of listing was sent to both parties. The applicant’s notice of listing was sent to the email address provided in her application - [email protected].

[4] On 30 October 2014, Cunningham & Adam Solicitors informed the Commission that they were instructed to act for the respondent and sought an extension of time to file a response to the application (which was granted). The response was duly filed on 6 November 2014.

[5] On 21 November 2014, Mr Michael Corling for the respondent and the respondent’s solicitors attended the conciliation conference. There was no appearance from the applicant. The applicant was contacted by phone and stated that she was unaware of the conference listing. The matter was subsequently relisted for a telephone conference to be held on 19 December 2014.

[6] The following day, 22 November 2014, the respondent wrote to the Commission complaining about the applicant’s failure to attend the conference and requested the Commission to reimburse its expenses or that the matter be dismissed.

[7] On 1 December 2014, the Commission’s Director, Client Services replied to the respondent’s written complaint. The respondent replied on the same day stating that if the Commission would not pay his expenses or dismiss the application, he would “have to seek further legal advice about how to file a claim or sue for my costs”.

[8] On 3 December 2014, Cunningham & Adam Solicitors wrote to the Commission confirming that they were no longer acting for the respondent and advised that Mr John Wormington, a solicitor, now represented the respondent. A representation notice from Mr Wormington was received by the Commission on 4 December 2014.

[9] The matter was settled between the parties at the 19 December 2014, telephone conciliation conference.

[10] On 8 February 2015, the Commission’s Director, Client Services sent a follow up letter to the respondent’s initial complaint.

[11] On 25 February 2015, at 10.56 pm, an application for costs was emailed to the Commission by the respondent which was signed by Mr M Corling (dated 26 February 2015). The application was said to be made under s.375B(b) of the Act, which would appear to be s.375B(1)(b) where the Commission can award costs based on an unreasonable act or omission of a party in regard to a s.365 application. The costs application identified the applicant Ms Tobin against whom the cost order was sought and stated that the applicant “did not behave reasonably or responsibly with regards to attending the conference... .” A bill of costs was not attached.

Relevant Legislation

[12] Section 375B -Costs Orders Against Parties was inserted into the Act following the enactment of the Fair Work Amendment Act 2013 and operated from 1 January 2014. In the Explanatory Memorandum at Item 58 it commences:

“58. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

59. The FWC’s power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission.

60. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances, but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

61. New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. ...” (My underline)

[13] Section 377 stipulates the time limit within which a cost order application in relation to proceedings under s.365 must be made:

“An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.”

[14] The Commission effectively finished dealing with the dispute when the matter was resolved during the telephone conciliation conference held on 19 December 2014. The application for a costs order was made on 25 February 2015, which is well beyond the specified 14 day time limit prescribed in s.377. The Act makes no provision for the time limit to be extended as occurs in some other sections of the Act. 3

[15] In Mr Corling’s costs application, he makes reference to not being made aware of the option to claim costs by the Commission until 9 February 2015. It is noted that Mr Corling stated on 1 December 2014 (while the Commission was still dealing with the dispute) that he would seek legal advice about how to file a claim for costs and that on 4 December 2015, a notice of alternate legal representation was filed.

[16] The costs order application must fail on the simple jurisdictional issue that it is out of time and there is no discretion under the Act to extend the time period allowed. 4 Accordingly the application is dismissed.

COMMISSIONER

 1   The application names “Paws a While Boarding Kennels” as the respondent however correspondence from Cunningham & Adam Solicitors states that Mr and Mrs Corling are the respondent and the response was filed in that name.

 2   s.369 of the Act

 3   See s.394(3) and s.366(2)

 4   See also [2011] FWA 2124 and [2014] FWC 3184 where similar conclusions were reached

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562230>