Nurses Kurucuk v Mining One Pty Ltd

[2019] FWC 1236

[2019] FWC 1236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nurses Kurucuk
v
Mining One Pty Ltd
(U2018/5069)

COMMISSIONER MCKINNON MELBOURNE, 25 FEBRUARY 2019

Application for costs – unfair dismissal.

[1] On 2 November 2018, I dismissed the unfair dismissal application of Nurses Kurucuk against Mining One Pty Ltd (Mining One) on the basis that Kurucuk was not dismissed (the Decision). 1

[2] Mining One has applied for costs against Kurucuk under sections 400A and/or 611 of the Fair Work Act 2009 (Cth) (Act). Mining One initially also sought costs against Kurucuk’s then legal representatives, Hall & Willcox Lawyers. However, this claim was not pressed at the hearing.

[3] In summary, in support of its application Mining One submits that Kurucuk:

1. Engaged in unreasonable acts or omissions by:

(a) alleging that her employment had been terminated at the initiative of Mining One, both before and after lodging her unfair dismissal application;

(b) making and continuing her unfair dismissal application in circumstances where she had accepted an offer of alternative employment with Deakin University prior to the alleged date of dismissal;

(c) knowingly withholding information from the Commission in connection with her employment by Deakin University; and

(d) failing to accept reasonable settlement offers made by Mining One.

2. Made her application vexatiously or without reasonable cause, for the reasons set out above; and

3. It should have been reasonably apparent that Kurucuk’s application had no reasonable prospects of success.

Relevant legal principles

[4] Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are a number of provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. Sections 400A and 611(2) of the Act are two such exceptions.

[5] Section 400A of the Act provides as follows:

“Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

[6] It is apparent that section 400A(1) of the Act requires the Commission to be satisfied of two matters before making any order for costs:

(a) Firstly, that the party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and

(b) Secondly, that such act or omission caused the other party to incur costs.

[7] Satisfaction as to both matters enlivens the Commission’s discretionary power to order the payment of costs under section 400A.

[8] While section 611(1) provides for each party to bear their own costs in matters before the Commission, section 611(2) of the Act provides as follows:

“(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC 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.”

[9] Principles governing the interpretation and application of s.611(2)(a) were set out in Church v Eastern Health t/as Eastern Health Great Health and Wellbeing 2and may be summarised as follows:

•  An application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage.

•  An application is not made without reasonable cause simply because the application did not succeed.

•  Whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success.

•  If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause.

•  In relation to an appeal, the question becomes whether the appeal has no substantial prospect of success. The prospect of success must be evaluated in the light of the facts of the case, the judgment appealed from and the points taken in the notice of appeal. If there was not insubstantial prospect of the appeal achieving some success, it cannot fairly be described as having been made without reasonable cause.

•  An application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, or manifestly groundless, or discloses a case where the tribunal is satisfied cannot succeed.

[10] Principles relevant to the interpretation of s.611(2)(b) were summarised by the Full Bench in Baker v Salva Resources Pty Ltd 3 as follows (footnotes omitted):

“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:

•  ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

•  a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”

Consideration

[11] In her application, Kurucuk claimed that she was forced to resign because of conduct, or a course of conduct, engaged in by Mining One between March 2017 and May 2018, involving:

(a) Inappropriate and unwelcome advances by her direct supervisor;

(b) Harassment, bullying and victimisation by her managers;

(c) Ongoing refusal by Mining One to investigate or address her complaints about (b) above; and

(d) Unilateral variations to her terms and conditions of employment.

[12] Determining the application required consideration of the terms of her contract of employment with Mining One as well as findings on the evidence about a series of events over a period of more than 12 months. I preferred the evidence of others to the evidence of Kurucuk on certain matters of importance, and on some matters, accepted the only evidence available. Those findings were central to my findings about the terms of the contract between Kurucuk and Mining One, the reasons for her reduced work allocation and the various interactions between Kurucuk and other employees or officers of Mining One over the relevant period.

[13] The Decision turned on my findings on the evidence before me. While Kurucuk’s application was ultimately dismissed, it does not follow that with different evidence, the outcome would necessarily have been the same. Kurucuk clearly felt aggrieved by what she saw as unfair and unreasonable treatment at work. I am satisfied that her case was at least arguable. I am not satisfied that the claim was so devoid of merit that it must fail, or that it was made without reasonable cause. It may have failed to meet the necessary evidential threshold, but there is not a sufficient basis upon which to find that it should have been reasonably apparent to Kurucuk that her application had no reasonable prospect of success.

[14] I am also not satisfied that Kurucuk’s application was made vexatiously. It is clear that Kurucuk wanted her ‘voice to be heard’ and that this affected her approach to settlement discussions. That of itself does not mean that her motivation was to harass or embarrass Mining One or to gain a collateral advantage. The fact that she made her own offer of settlement weighs against her determination to be heard at all costs, for some other, unspecified purpose.

[15] I do consider that it was unreasonable for Kurucuk to fail to disclose to the Commission the fact of her offer and acceptance of alternative employment with Deakin University in a timely way, given the obvious relevance of that information to her application both in terms of the events leading to the cessation of her employment and the question of remedy.

[16] However, I am not satisfied that the omission caused Mining One to incur costs over and above the costs it would ordinarily have incurred in defending Kurucuk’s claim. I do not accept that the hearing would necessarily have been conducted on a more ‘confined’ basis had the omission not occurred. Mining One knew about Kurucuk’s alternative employment prior to the hearing. It had the option of seeking orders for production of documents at an earlier stage if it sought to put its case differently for that reason. The omission was remedied in a material way after the conclusion of the hearing and prior to the Decision. As is evident from the Decision, it was material to my findings. There was no basis for Mining One to continue to incur costs in relation to the omission after the hearing, other than for the purpose of supporting this application.

[17] Each party chose not to accept settlement offers made by the other party prior to the hearing. Had settlement been achieved, their respective liability for costs would have been much reduced. That is not an uncommon consequence of litigation and one that reinforces the value of alternative dispute resolution. It is not conduct that should be attributed to Kurucuk alone.

[18] In the circumstances, I am not satisfied that Kurucuk’s failure to settle her application warrants an order for costs.

Conclusion

[19] For the reasons set out above, I am not satisfied that Mining One’s application for costs can or should be granted. The application is dismissed.

COMMISSIONER

Appearances:

B Avallone for Mining One Pty Ltd

R Preston for Nurses Kurucuk

K Brotherson for Hall & Willcox

Hearing details:

2019.

Melbourne:

February 4.

Printed by authority of the Commonwealth Government Printer

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 1   [2018] FWC 6620

 2   [2014] FWCFB 810 at [23]-[33]

 3   [2011] FWAFB 4014; (2011) IR 174