Peter Bowd v MHPS Plant Services Pty Ltd

[2015] FWC 1901

[2015] FWC 1901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Peter Bowd
v
MHPS Plant Services Pty Ltd
(C2015/1314)

COMMISSIONER SIMPSON BRISBANE, 24 APRIL 2015

Application for costs in respect of a general protections matter - application dismissed.

[1] On 14 January 2015 Mr Peter Bowd (the Applicant) commenced an application under s.372 of the Fair Work Act 2009 (the Act) alleging that MHPS Plant Services Pty Ltd (the Respondent) had contravened s.340 of the Act.

[2] On 22 January 2015 the Respondent filed a Form F8A - Response to general protections application (F8A). In the F8A the Respondent indicated that, in accordance with s.374 of the Act, they would agree to participate in a conference convened by the Commission in relation to the application. A conference was conducted on 5 February 2015, and the Applicant discontinued the application in the same day.

[3] On 10 February 2015, the Respondent lodged an application for costs pursuant to s.611 of the Act. On 16 February the Applicant’s lawyer filed a Form 54 - Notice of Representative Ceasing to Act.

[4] Section 611 states:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(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.

Note: The FWC can also order costs under sections 376, 400A, 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).”

SUBMISSIONS - RESPONDENT

[5] In accordance with Directions issued on 4 March 2015, both parties were provided with an opportunity to provide written submissions relative to the costs issue. A summary of the Respondent’s position is below.

[6] The Respondent submits that the Applicant made the application under s.372 of the Act based on known falsehoods and that the evidence available to the Applicant shows that the claim had no basis, because:

(a) Any alleged adverse action taken against the Applicant was taken prior to the date on which the alleged complaint was made; and

(b) The Applicant knew his employment was terminated as early as 21 November 2014 and no later than 26 November 2014 which were both before the date of the alleged complaint.

[7] The Respondent asserts that a claim under s.372 of the Act can only be made where the complaint does not relate to the person’s dismissal. The Respondent further contends that the Applicant’s claim that he was on a forced leave of absence because he exercised a workplace right to make a complaint is false and that it should have been clear to the Applicant that at the time of making his application his employment had already come to an end.

[8] The Respondent submitted that as the Applicant’s claim that he was on a forced leave of absence was false based on the evidence, the Applicant had no basis for a claim to the Commission under s.372 of the Act. Further, the Respondent contends that it may reasonably be inferred that the Applicant made the claim under section 372 of the Act because the Applicant knew that if he made an application under s.365 of the Act, it would be outside of the time limits prescribed by s.366 of the Act.

[9] The Respondent asserts that the application had no prospect of succeeding unless the exercise of the alleged workplace right (that is the alleged complaint) was the trigger for the adverse action and this could only have occurred if the adverse action took place after the workplace right was exercised. It is the Respondent’s position that it is clear that in this case any alleged adverse action occurred at the latest on 26 November 2014 and that the complaint which founded the workplace right was made at the earliest on 27 November 2014 and on 28 November 2014 to the parent company.

[10] The Respondent submits that the Applicant has acted vexatiously because:

(a) he commenced the Application based on a deliberate known falsehood (that he was on a leave of absence); and

(b) he has misled the Commission by not including in his Application relevant facts which were later conceded at the conciliation conference, such as the date that the alleged “complaint” which formed the basis of his Application was made; and

(c) it can reasonably be inferred that the false claims were made not to seek to have issues relevant to section 340 adjudicated, but for a collateral purpose to air the Applicant’s facetious grievances and to try to compel the Respondent to settle the matter.

[11] The Respondent submits that the Commission should exercise its discretion to order costs on an indemnity basis.

[12] The Respondent submits in relation to the amount of costs, that in this case, special or unusual circumstances include that:

(a) the proceedings were commenced and continued vexatiously;

(b) the Respondent drew the Applicant’s attention in the Response to the fact that the Applicant’s employment had ceased, that it had evidence of the Applicant’s acknowledgement of that fact, and that the alleged complaint was made after that cessation and put the Applicant on notice that an application for costs would be made if the Applicant continued the Application. Despite this, the Applicant continued the Application to conciliation conference causing the Respondent to incur further costs.

[13] The Respondent submits that this is a case where due to the factors outlined above there has been “relevant delinquency” on the part of the Applicant such that there are special or unusual features justifying the Commission exercising its discretion to award indemnity costs.

SUBMISSIONS - APPLICANT

[14] The directions for this cost application were sent to the Applicant via email (verification of proof of delivery has been received) and by Australia Post to his current address. The Applicant’s submissions were due by 4pm 1 April 2015. On 2 and 7 April 2015 my chambers made attempts to contact the Applicant without success. On 7 April 2015 an email was sent to the Applicant requesting his response by close of business 8 April 2015.

[15] On 9 April 2015 an email from the Applicant was received in my chambers which included that he has had to take work in a very remote location in the Philippines causing much impact on his family and that his life was in turmoil. The email explained further that he also did not have daily internet access, was in considerable debt, was unable to pay his mortgage or his own legal costs, could not pay for any further legal representation and he would be unable to pay a costs order if made.

CONSIDERATION

[16] The Respondent filed an F8A (Employer response to the application), and in question 3.3.1 agreed to participate in the conference to deal with the dispute with the comment added “Without prejudice to our jurisdictional arguments”. The conference was held on 5 February 2015. The Applicant was represented by HKT Law and the Respondent by Herbert Smith Freehills. As already stated, on the same day and following the conference, a Notice of Discontinuance was filed. It is noted that both the Applicant and the Respondent would have incurred expenses for this conference.

Section 374 provides as follows:

374 Conferences

(1) If:

(a) an application is made under section 372; and

(b) the parties to the dispute agree to participate;

the FWC must conduct a conference to deal with the dispute.

[...]

[17] It is apparent from reading the Form F8C Application filed on 14 January 2015 for the Applicant by HKT Lawyers that while the application concedes some doubt existed on the matter of whether the application should have been lodged as a s.365 or s.372 matter, it was maintained that the Applicant had not resigned. After consulting with his lawyer, and presumably receiving advice, and being assisted by a lawyer to file his application it is apparent the application was filed in terms that maintained a prospect that the employment relationship had not ended. The Respondent has submitted that an inference should be drawn that the application was filed as a s.372 matter because, had it been filed as a s.365 matter it would have faced an extension of time hurdle. This submission is speculative and I am not satisfied there is a proper basis to draw such an inference.

[18] The Respondent attached with its Form F8A a copy of an email sent to the Applicant on 26 November 2014 accepting his resignation, and also a formal letter of the same date accepting his resignation and referring to having received from him on 21 November 2014, a written resignation. That email of 21 November 2014 was produced by the Respondent in the course of the conference on 5 February 2015. It would appear that the Applicant did not bring to the attention of his lawyer before the conference, all of the material that he should have had in his possession which makes clear that the Applicant had in fact resigned and had done so before he made the complaint that was alleged to have been the basis for the adverse action claim.

[19] Whilst there has only been one conference and no formal evidence as such, in the course of the conference the Applicant appeared to me to exhibit signs of significant mental strain. The material filed prior to the conference supports the probability of my impression that the Applicant was suffering mental health issues prior to and following his resignation. The Respondent’s F8A response included the following at paragraph 5 in relation to the events of the day after he had submitted a written resignation, and several days before the resignation was accepted.

“On 22 November 2014, the Applicant attended work at the Respondent’s office in Milton. While he was there, he spoke with Mr Barrett by telephone and Mr Barrett confirmed that he was accepting his resignation. The Applicant became upset and Mr Barrett said that he would meet the Applicant at the office to discuss the matter. Mr Barrett asked Mr Simon Wagland, General Manager, Business Services to attend the office as well. The Applicant was found hunched over outside the office crying. He was assisted to into the office. The Applicant raised a number of personal issues and said that he couldn’t afford to lose his job and said that he wouldn’t get another job. The Applicant became very upset again. Mr Barrett was concerned about the Applicant’s wellbeing and suggested that the Applicant take time to compose himself while the Respondent considered his resignation.

.......................”

[20] The Applicant’s partner at the time Ms Janine Cotto provided a Statutory Declaration for the purposes of the conference. Ms Cotto was living in New South Wales at the time and in her Statutory Declaration describes a phone call with Michael Barrett, the CEO of the Respondent which she said also took place on 22 November 2014. She states that the phone call concerned the welfare and status of the Applicant and she claimed her conversation with Michael Barrett was about the nature of leave being given to the Applicant, and that it was explained to her that it was ‘forced leave’ due to health reasons. She claimed that Mr Barrett told her that he was giving the Applicant a month off so that he could regain his health and fix the problems causing stress and she also claimed Mr Barrett stated very clearly and reassuringly that he wanted to see the Applicant return to the office in the New Year.

[21] In the second last paragraph of the Statutory Declaration however, Ms Cotto says that she then flew to Brisbane and drove with the Applicant back down to New South Wales and was shocked three days later to learn of the Applicant’s dismissal.

[22] Attachment 1 to the F8C application also refers to a meeting on 15 December 2014 the Applicant attended with a number of senior officers of Mitsubishi Hitachi Power Systems Pty Ltd, the parent company of the Respondent, in connection with the Applicant’s asserted role as a whistleblower, and how the Applicant could assist in his capacity as an employee with an investigation. Attachment 1 also refers to further email communications on 24 December 2014 involving the Applicant and the Respondents parent company, and again in early January 2015. The Applicant through the presentation of his application, and initial position as presented in the conference on 5 February appeared to hold to a misguided notion that his ongoing communication with the Respondent’s parent company in some way had the effect of maintaining his employment relationship with the Respondent.

[23] The Applicant sought and received legal advice about his application. It appears the Applicant did not divulge to his lawyer, or the Fair Work Commission (FWC) all of the information available to him which would have made clear the true position regarding his resignation. It would also have assisted the Applicant’s lawyer and the FWC had the Respondent presented with its F8A response, all of the material within its possession prior to the conference, and not confined its material to the email and the Acceptance of Resignation letter on 14 January 2015. That comment is not a criticism of the Respondent and merely an observation that in hindsight, the matter may have taken a different course in those circumstances.

[24] I am not satisfied that the application was made vexatiously. It appeared to me from both the material and the demeanour of the Applicant in the conference that his mental state may have clouded his judgement during the time leading up to his resignation and including up to the conference itself, and further it appeared to me he genuinely believed, despite being misguided in doing so, that despite his having resigned, his ongoing communication with the Respondent’s parent company in some way meant he was still employed.

[25] Given I am inclined to the view that the Applicant believed he may have still been employed despite the available material supporting a different conclusion, and that the status of employment was a factual issue he disputed, I am not satisfied he made the application either vexatiously or without reasonable cause.

[26] I am more inclined to accept the submission that objectively, it should have been reasonably apparent to the Applicant that his application had no reasonable prospect of success, as the documents exchanged between the Applicant and employees of the Respondent make it clear he had resigned, and his resignation had been accepted before he made the complaint which was at the heart of the grounds for the application. Those facts make it apparent the complaint could not have been the cause of the alleged adverse action.

[27] However the awarding of costs is discretionary. It is well accepted that in the ordinary course parties bear their own costs in this jurisdiction. In the course of the 5 February 2015 conference, the Respondent had agreed to participate in it on a without prejudice basis, factual issues were canvassed and in a short period following the conference the application was discontinued on the same day. The Respondent agreed to participate in the conference despite the fact the legislation provided it a clear entitlement to simply refuse.

[28] I have rejected the submission that the application was made vexatiously or without reasonable cause. While I have accepted grounds exist for a costs order under s 611(2)(b) I am concerned from reading the material and from observing the Applicant in the conference that his judgement may have been affected by his mental state in the period before and after his resignation, up to and including the time of the conference. I am further inclined against awarding costs considering that the Respondent agreed to participate in the conference, and the Applicant had consulted with a lawyer about the matter of the status of his employment. It would appear the Applicant’s instructions to his lawyer did not provide his lawyer with an accurate picture of what had occurred, however I am concerned the quality of those instructions may have been affected by his mental state at the time, and also his misguided or confused understanding that his ongoing communications with the Respondent’s parent company somehow affected the status of his employment with the Respondent. In the exercise of my discretion I am not prepared to award costs in this case. The application is dismissed.

COMMISSIONER

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