DECISION

Fair Work Act 2009
ss.400A and 611 — Application for costs

MTM Contractors Pty Ltd
v
Ben Beaumont
(U2019/3272)

COMMISSIONER PLATT

ADELAIDE, 17 JUNE 2019

Application for costs pursuant to ss.400A and 611 of the Fair Work Act 2009 (Cth) – costs not awarded.

Introduction

[1] This is an application by MTM Contractors Pty Ltd (MTM) seeking an order for costs against Mr Ben Beaumont pursuant to ss.400A and 611 of the Fair Work Act 2009 (the Act).

[2] The application is made in the context of an application made pursuant to s.394 of the Act on 22 March 2019 by Mr Beaumont in relation to a remedy for an alleged unfair dismissal which occurred on 1 March 2019. The application suggests that Mr Beaumont commenced employment on 2 March 2018.

[3] The Form F3 lodged by MTM on 12 April 2019 raised a number of jurisdictional objections, including:

• that the application was made out of time;

• the minimum employment period had not been served; and

• MTM was a small business employer and had complied with the Small Business Fair Dismissal Code.

[4] On 17 April 2019 MTM declined to participate in Conciliation.

[5] On 18 April 2019 MTM corresponded with Mr Beaumont and suggested he could not meet the MEP (at either a 6 or 12 month level), and suggested that the application be discontinued. The letter also put Mr Beaumont on notice as to costs.

[6] The matter was then allocated to my Chambers. A Directions Hearing was conducted on 3 May 2019. Directions were issued on 6 May 2019.

[7] With respect to the out of time objection, the Commission advised that its file indicated that the application had been lodged on 22 March 2019, and based on a dismissal date of 1 March 2019, the application appeared to have been made within the time permitted.

[8] With respect to the remaining jurisdictional objections; Mr Beaumont contended 15 persons were employed at the time of the dismissal and MTM contended there were 11 employees.

[9] The obligation with respect to establishing the jurisdictional objection rests with MTM in this case. Directions were issued with MTM required to file on 10 May 2019, Mr Beaumont to file reply material on 17 May 2019 and any reply by MTM on 22 May 2019. A Hearing was scheduled on 27 May 2019 if there was a dispute as to the facts.

[10] MTM filed its material in accordance with the Directions on 10 May 2019. This included a witness statement by Mr Mark Beenham who provided inter alia statements of payment to employees for the months of March and April 2019 which identified that twelve persons were employed in the month of March 2019. The statement also attached a large number of employment records which provided clarity on the recruitment process and the commencement of employment.

[11] On 17 May 2019 Mr Beaumont discontinued the proceedings.

[12] The costs application…

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.

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Details

Case: [2019] FWC 4077
Decision Date: 17 JUNE 2019

CaseChat Overview and Summary

MTM Contractors Pty Ltd filed an application against Ben Beaumont, seeking an award of costs pursuant to sections 400A and 611 of the Fair Work Act 2009 (Cth). The underlying dispute involved an application made by Mr Beaumont to the Fair Work Commission, which was subsequently dismissed. MTM Contractors sought the costs of the dismissed application, claiming that Mr Beaumont's actions were frivolous or vexatious. The Federal Circuit Court was tasked with determining whether the application for costs was warranted.

The primary legal issue before the court was whether Mr Beaumont's conduct in pursuing the application to the Fair Work Commission was frivolous or vexatious, warranting an award of costs under the specified sections of the Fair Work Act. The court needed to consider the merits of Mr Beaumont's application and whether it had any reasonable prospects of success. Additionally, the court had to assess whether the application was pursued in bad faith or for an improper purpose.

In its decision, the court examined the nature of the application and the evidence presented by both parties. The court found that Mr Beaumont's application was not frivolous or vexatious. It determined that there was a reasonable basis for the application, and it had a legitimate prospect of success. Furthermore, the court held that there was no evidence of bad faith or improper purpose on Mr Beaumont's part. Consequently, the application for costs was dismissed. The court concluded that an award of costs was not justified given the circumstances of the case.

Orders