Praween Banu v All in It Solutions (Cemac doors and hardware) T/A All in It Solutions

[2019] FWC 3743

[2019] FWC 3743

FAIR WORK COMMISSION

DECISION

Fair Work Act 200
s.394—Unfair dismissal

Praween Banu
v
All in IT Solutions (Cemac doors and hardware) T/A All in IT Solutions
(U2018/10302)

DEPUTY PRESIDENT BOOTH SYDNEY, 31 MAY 2019

Application for an unfair dismissal remedy; application for costs pursuant to ss.400A and 611; costs awarded pursuant to s.400A.

[1] Ms Praween Banu was employed as a Web Designer/Development and Information Technology Consultant by All in IT Solutions Pty Ltd T/A All in IT Solutions (All in IT Solutions) from 1 July 2015. 1

[2] On 5 October 2018 Ms Banu made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy seeking payment in lieu of notice and compensation.

[3] In its response to the application All in IT Solutions contended that Ms Banu had not been dismissed, and if it was found that she had been dismissed, that she was not unfairly dismissed. All in IT Solutions said that that Ms Banu had been absent from its workplace without reasonable explanation since 24 September 2018. 2

[4] The reasons given for the termination can be summarised as that Ms Banu undertook design work for private clients and was working for another employer during her All in IT Solutions work time, that she used All in IT Solutions work resources for this purpose, that she lied about this during a meeting with her employer and that she forged medical certificates to support her absence from work on three occasions – all in breach of her contract of employment, All in IT Solutions policies and implied duties to All in IT Solutions.

[5] Ms Banu was self-represented from the outset of her unfair dismissal application until 15 April 2019 when she sought legal advice concerning the process of the costs application. All in IT Solutions was represented throughout the period by HWL Ebsworth Lawyers (HWL Ebsworth), and appeared by permission of the Commission.

[6] On 17 December 2018 I listed the matter for hearing on 5 February 2019 with a set of directions that included a requirement for Ms Banu’s merit, and All in IT Solutions’ jurisdictional, submissions and evidence to be filed by 11 January 2019.

[7] On 19 December 2018 Ms Banu wrote to my Chambers requesting that the hearing date be rescheduled to a later date to allow for her to seek legal representation, taking into account Christmas period. All in IT Solutions responded on 20 December 2018 consenting to Ms Banu’s request for a later hearing citing pre-scheduled annual leave for the relevant staff of both All in IT Solutions and HWL Ebsworth. On 21 December 2018 All in IT Solutions sought a hearing date on or after 25 February 2019 by agreement with Ms Banu.

[8] On 21 December 2018 my Chambers responded indicating that we could not accommodate a hearing date after 25 February 2019. However we could offer a new hearing date of 8 February 2019 with a corresponding new directions timetable that retained the date of 11 January 2019 for Ms Banu’s merit, and All in IT Solutions’ jurisdictional, submissions and evidence. All in IT Solutions responded requesting that the directions commence no earlier than 18 January 2019.

[9] Upon return from leave on 14 January 2019 my Chambers responded to this request with a new set of directions that included a requirement for Ms Banu’s merit, and All in IT Solutions’ jurisdictional, submissions and evidence to be filed by 21 January 2019.

[10] Ms Banu filed submissions with the Commission on 20 November 2018 (not pursuant to any directions from the Commission), 11 January 2019 (apparently pursuant to the directions proposed by the Commission on 21 December 2018) and 5 February 2019 (one day later than required by the directions set on 14 January 2019).

[11] Ms Banu wholly discontinued her application on 7 February 2019, the day her submissions in reply were due and the day before the matter was listed for hearing.

[12] On 20 February 2019 All in IT Solutions filed an application for costs pursuant to ss. 400A and 611 of the Act in relation to costs incurred in the relation to dealing with Ms Banu’s application and the costs application itself. All in IT Solutions made its costs application within the 14 day period required by s.402(b) of the Act.

[13] All in IT Solutions do not itemise costs but rather provide invoices amounting to a total of $57,712.77 issued by HWL Ebsworth on successive junctures over the period from application to discontinuance.

[14] With the agreement of the parties I have determined this application by considering the documents filed in both the merit and costs matters, a process colloquially knowns as a “decision on the papers”.

[15] All in IT Solutions seek to recover some or all of the legal costs they incurred in responding to the application up to Ms Banu’s discontinuance and making the costs application on grounds that can be summarised as being that Ms Banu made and continued with an application that was made without reasonable cause, was made with no reasonable prospects of success and was attended by unreasonable acts or omissions that caused costs to be incurred.

[16] Ms Banu resists the application for costs. Notwithstanding her discontinuance she maintains her position that she was dismissed, and was dismissed unfairly.

[17] The circumstances of this case are the subject of competing versions of events. The conflict between the parties was not resolved as the matter did not proceed to hearing. Evidence was not tested and some evidence remained outstanding at the time of the discontinuance, being the subject of an Order for production of documents.

[18] All in IT Solutions’ Form F3 response to Ms Banu’s application states that it was a Small Business Employer with 8 employees. 3

[19] All in IT Solutions did not pursue their status as a Small Business Employer as a jurisdictional objection, but had I been satisfied that they were a Small Business Employer I would nevertheless have been required to consider whether Ms Banu’s dismissal was consistent with the Small Business Fair Dismissal Code. 4 This was not resolved in a hearing of the merits and since it was not advanced as a ground in the costs application I will not consider it further.

[20] The general position in relation to unfair dismissal applications is that each party bears its own costs, however the Act provides for the Commission to exercise discretion to award costs in accordance with ss.400A and 611.

[21] Section 400A of the Act provides:

400A 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.

[22] The Full Bench of the Commission in Gugiatti v SolarisCare Foundation Ltd said that s.400A is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place”. 5

[23] The Full Bench also stated:

“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.” 6

[24] Section 611 of the Act provides:

s.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).

[25] The Full Bench in Macdougall v Health Axix Pty Ltd T/A Raymond Hader Clinic confirmed that s.611 is concerned with the making of the application, not with conduct after the making of the application, although such conduct can, in some circumstances, assist in determining whether the application or response, at the time it is made, falls within the scope of s.611. 7

[26] See also Galea v Billabong Customs Caravans Pty Ltd T/A Billabong Custom Caravans, 8where Deputy President Gostencnik said in relation to s.611(2)(b) “knowledge gained by a person during the course of a proceeding and after making an application or response might lead to a conclusion that it should have been reasonably apparent to a person that the person’s application or response had no reasonable prospect of success”.9

[27] The Full Bench of the Commission in Keep v Performance Automobiles Pty Ltd summarised the principles to apply in deciding whether an application has been made without reasonable cause as follows: 10

“[17] The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter [sic] Health Great Health and Wellbeing (Church). 11 Church is authority for the following propositions:

(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. 12

(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’. 13”

[28] The Full Bench in Matthew Gugiatti v Solariscare Foundation Ltd followed the principles to apply in deciding whether an application has been made without reasonable prospects of success, 14 summarised by a Full Bench in Baker v Salva Resources Pty Ltd as follows:15

“[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.”

[29] It is not claimed that Ms Banu made her application vexatiously (s.611(2)(a)) and in any event I am satisfied that Ms Banu’s motive in making her application was for the purpose of obtaining compensation by achieving a decision that her dismissal was unfair. That is not a purpose that would fall within the definition of ‘vexatious’ as the term is understood from the case law. 16

[30] It is claimed that Ms Banu’s application was made without reasonable cause (s.611(2)(a)) and with no reasonable prospects of success (s.611(2)(b)) and was attended by unreasonable acts or omissions in connection to the conduct or continuation of the application that caused costs to be incurred (s.400A).

[31] I will now address the circumstances that I understand All in IT Solutions contend enliven both sections 611 and s.400A of the Act and consider the application of both sections of the Act to these circumstances.

Making an application for unfair dismissal remedy when not dismissed

[32] The following circumstances are not relevant to the application of s.400A of the Act as they are not concerned with the conduct or continuation of the application but are relevant to s.611 of the Act as they are concerned with the making of the application.

[33] All in IT Solutions contend that at the time of making her application for unfair dismissal remedy Ms Banu had not been dismissed and was absent from work without reasonable explanation. They contend that on 24 September 2018, Ms Banu was invited to attend a meeting with Mr John Assaf (Director) and Mr Ali Taufeek (General Manager). She attended the meeting, allegations were put to her and she was asked to take the rest of the day off to consider the allegations and revert to All in IT Solutions. She did not do so, nor return to work and the next contact All in IT Solutions had from Ms Banu was when they received her unfair dismissal application. There was no suggestion that they sought to contact her.

[34] On the other hand, Ms Banu says that on attending work on 24 September 2019 she was confronted by Mr Assaf who told her to go to the boardroom. She says Mr Taufeek followed her into the boardroom. She says she was shown some documents, ordered to leave work immediately and to produce a written letter of resignation by the end of the week on threat of the police being called. She says her email was disconnected. She said she thought that she had been dismissed. Ms Banu did not return to work at All in IT Solutions after 24 September 2018.¹⁷

[35] There is a conflict between All in IT Solutions and Ms Banu’s version of events that is relevant to the application of s.386(1) of the Act concerning the meaning of dismissed. Section 386 (1) reads as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[36] The proper application of s.386 of the Act would require me to hear evidence and make findings of fact.

[37] On the competing versions of events summarised above it could not be said that the Commission would necessarily have found in favour of the jurisdictional objection.

[38] I consider that this circumstance fails to meet the threshold of “without reasonable cause” or “with no reasonable prospects of success” in terms of s.611 of the Act and I decline to award costs in relation to these circumstances.

Making an application for unfair dismissal remedy asserting a case known by Ms Banu to be untrue

[39] The following circumstances are not relevant to the application of s.400A of the Act as they not concerned with the conduct or continuation of the application but are relevant to s.611 of the Act as they are concerned with making of the application.

[40] All in IT Solutions say they had no concerns with Ms Banu’s work performance up to 19 September 2018. Mr Taufeek Ali said that on 21 September 2018 he became aware that Ms Banu had used her work computer to conduct work for private clients during work time, 18 as he had found invoices for My Creations and payslips from a company called Jasz Enterprises on her computer.19

[41] On 24 September 2018 All in IT Solutions say that they presented evidence of this to Ms Banu in a meeting and she denied doing any work for anyone else at all. Mr Ali said that the documents presented to her were two My Creation invoices and one Jasz payslip. 20

[42] As outlined above, Ms Banu’s version of events concerning the meeting of 24 September 2018 are at odds with those of Mr Ali and also Mr John Assaf who was also at the meeting. 21 Relevantly, Ms Banu said in her Form F2 Unfair Dismissal Application “I identified the documents as some of the invoices from my secondary employment where I managed my own business outside of my core work hours with All in IT Solutions.”22 She asserted that All in It Solutions was aware of her freelance business and “had no issues” with it.23

[43] If the version of events put forward by All in IT Solutions about this meeting were accepted, the Commission would in all likelihood find that there was a valid reason for dismissal (dishonesty in the meeting) because Ms Banu does later submit that she carried on the business of My Creations and was employed by Jasz Enterprises, albeit not in All in IT Solutions work time. The assertion of dishonesty during the meeting would be vindicated.

[44] All in IT Solutions also asked me to consider material later disclosed as the preparation for the hearing progressed as relevant to consideration of whether Ms Banu made an application for unfair dismissal remedy asserting a case known by her to be untrue.

[45] The relevant material is ten My Creations Invoices dated between 2 June 2017 and 27 August 2018 and eleven payslips from Jasz Enterprises dated between 14 December 2017 and 28 February 2018. In relation to My Creation invoices Ms Banu says “I have done 2 freelance projects since May 2018”. In relation to Jasz invoices Ms Banu says Jasz Enterprise is a company that I did some work for over a few months (during December 2017 to February 2018) as freelancer [sic]. This work was done during my own personal time after work hours”. 24

[46] The amounts of money contained in the invoices and payslips were not discernible from later produced Commonwealth Bank of Australia bank statements (both produced by Ms Banu and later directly by the Commonwealth Bank of Australia) because the bank statements were from 24 September 2018 to 6 February 2019 – a period that did not correlate with the period over which the invoices and payslips were issued.

[47] The competing submissions that, on the one hand Ms Banu was working for others in breach of All in IT Solutions policy and her contract of employment, and on the other hand that Ms Banu’s freelance work was known to All in IT Solutions and was not performed in working hours, were not tested in a hearing. In this circumstance I am unable to conclude that I would necessarily find that there was a valid reason for dismissal.

[48] Furthermore, whether the reason for dismissal is a valid reason is but one of the matters that are to be taken into account in deciding whether a dismissal is unfair. 25 It is apparent from Ms Banu’s account of the meeting on 24 September 2018 that if the Commission found that she was dismissed on this date, there would be procedural considerations concerning the dismissal process relevant to s.387(b), (c) and (d) of the Act that would need to be weighed in the overall consideration of whether she was unfairly dismissed. It is also the case that the Commission would be required to weigh other relevant matters in accordance with s.387 (h) of the Act concerning “any other matters that the FWC considers relevant”.

[49] The proper application of ss.385 and 387 of the Act would require me to hear evidence and make findings of fact. The application was discontinued at what could be described as a preparatory stage. Even though the hearing date was to be the day following the discontinuance it concluded with evidence still outstanding from an Order for production of documents.

[50] I consider that this circumstance fails to meet the threshold of “without reasonable cause” or “with no reasonable prospects of success” in terms of s.611 of the Act and I decline the costs application in relation to these circumstances.

Being uncontactable for a telephone conciliation

[51] These circumstances are relevant to the application of s.400A of the Act as they are concerned with the conduct of the application but are not relevant to s.611 of the Act as they are not concerned with the making or continuing of the application.

[52] All in IT Solutions contend that Ms Banu’s unavailability for a telephone conciliation of her application on 9 November 2018 was unreasonable and, in effect, that the Commission should find that the costs incurred in attending for the aborted conciliation ought to be awarded to them pursuant to s.400A of the Act.

[53] The sequence of events surrounding this circumstance were as follows:

•  On 9 October 2018 the application was listed for telephone conciliation to take place on 1 November 2018.

•  On 22 October 2018 Mr Taufeek, General Manager of All in IT Solutions, wrote to the Commission to request an adjournment of the scheduled conciliation. That request was acceded to and on 23 October 2018 the telephone conciliation was relisted for 9 November 2018.

•  On 23 October 2018 Ms Banu contacted the Commission to confirm her contact number ahead of the rescheduled telephone conciliation. She left a voicemail message and sent an email confirming the mobile number as provided on the Form F2.

•  At 9:15am on 9 November 2018 a conciliator of the Commission dialled the parties for the scheduled conciliation. All in IT Solutions picked up the call for the conciliation. A file note reveals that calls to Ms Banu went straight to voicemail. After three unsuccessful calls, the conciliator left a voicemail for Ms Banu at 9:20am.

•  At 9:45am the conciliator placed a call to Ms Banu which was picked up. Ms Banu said that she had been waiting for the conciliator’s call. The conciliator explained that she had called numerous times and had left a voicemail. Ms Banu said that she did not have any missed calls nor a voicemail on her phone. The conciliator and Ms Banu confirmed that the number on file was correct.

•  Subsequently the conciliator informed the parties that the next step in the matter procedurally would either be to relist the matter for conciliation or to proceed to arbitration. Ms Banu replied that she would like the matter to be relisted. All in IT Solutions requested further time to advise which option it sought. It reverted on 12 November 2018 to advise it sought a second conciliation listing.

•  A conciliation conference was listed for 6 December 2018 and was attended by All in IT Solutions and Ms Banu.

[54] On the face of it, Ms Banu was aware of the time and date of the call and Ms Banu’s mobile telephone number was in working order. Ms Banu may have had no signal or she did not hear it ring or she did not pick it up when it rang. Without evidence in relation to these possibilities, I am not in a position to make a finding about this. However without doing so I can conclude that it is reasonable to expect that she would be in a zone with a signal and pay attention to her phone. The contact made with her subsequent to the aborted conciliation was initiated by the Commission. It is reasonable to expect that she would have contacted the Commission in the absence of a call. I do consider this to be an unreasonable omission in the conduct of her application.

[55] The costs that I regard as having been incurred by All in IT Solutions due to this unreasonable omission are the costs relating to the attendance at, and subsequent consideration of, the aborted conciliation.

[56] All in IT Solutions also cite Ms Banu’s failure to contact the Commission in relation to the second conciliation until 14 November 2018 as an unreasonable omission. I do not consider that an unreasonable omission and I decline the application for costs in relation to this.

Failing to respond to contentions, including based on documents provided

[57] The following circumstances are relevant to the application of s.400A of the Act as they are concerned with the conduct of the application but are not relevant to s.611 of the Act as they are not concerned with the making or continuing of the application.

[58] All in IT Solutions contend that Ms Banu failed to respond to a number of contentions including after material was provided to her supporting those contentions.

[59] On 26 October 2018, All in IT Solutions wrote to Ms Banu in response to her application to the Commission. The correspondence recounted All in IT Solutions’ version of events in relation to the meeting of 24 September 2018 and asserted that Ms Banu was not dismissed. In summary, the correspondence asked Ms Banu to respond in relation to their assertions that she performed private work via My Creations, used images from Shutterstock without permission, worked for Jasz Enterprises and provided false medical certificates on three occasions. All in IT Solutions sought acceptable explanations in relation to these matters within 30 days.

[60] Ms Banu did not directly respond to All in IT Solutions. On 14 November 2018 HWL Ebsworth, acting on behalf of All in IT Solutions, followed this correspondence with what could colloquially be described as a “show cause” letter. Ms Banu did not directly respond to HWL Ebsworth but did address these assertions in submissions to the Commission on 20 November 2018.

[61] In this submission Ms Banu responded to each of the circumstances that All in IT Solutions asked her to provide acceptable explanations for on 26 October 2018, but did not address some of the additional matters detailed in the correspondence of 14 November 2018. The additional matters were her contract and policy obligations, her unauthorised absence from work since 24 September 2018 and dishonesty in relation to the meeting of 24 September 2018.

[62] It is apparent from Mr Ali’s Statement that All in IT Solutions regarded the submission of 20 November 2018 as a response to the correspondence of 14 November 2018. 26 It is also clear that they did not find Ms Banu’s explanations acceptable as they formed the grounds for the letter of termination of 7 December 2018. However it could not be said that Ms Banu failed to respond.

[63] I do not consider that these circumstances disclose an unreasonable act or omission and I decline the application for costs pursuant to s.400A in relation to these instances.

[64] On 11 January 2019, in compliance with the directions that were proposed at the time Ms Banu lodged merit submissions and confirmed that she would not be represented.

[65] On 17 January 2019, HWL Ebsworth, acting on behalf of All in IT Solutions, sent correspondence to Ms Banu containing documents that pertained to the allegations and putting Ms Banu on notice that if she did not discontinue to application the next day, All in IT Solutions would be putting to the Commission that it unreasonably incurred legal costs due to her decision to continue her application despite unequivocal evidence of her misconduct. The documents contained in this correspondence included a copy of a continuous log of the websites accessed by Ms Banu during her employment with All in IT Solutions and screenshots of Ms Banu’s work computer activities taken by monitoring software during her employment with All in IT Solutions. 27

[66] Ms Banu did not respond to this correspondence and she did not discontinue the application.

[67] On 21 January 2019 All in IT Solutions lodged its submissions and evidence in relation to its jurisdictional objection in compliance with the timetable set by the Commission for this matter.

[68] In accordance with a new directions timetable made by agreement between the parties and issued on 14 January 2019, Ms Banu had been provided the opportunity of lodging further merit submissions by 21 January 2019. She did not avail herself of this opportunity.

[69] After requests from HBL Ebsworth (including that they were concerned that they were not on proper notice of the basis of her claim) and a telephone conference listed at the request of All in It Solutions, Ms Banu resubmitted her submissions of 20 November 2018 on 29 January 2019.

[70] Ms Banu’s failure to engage with the documents that pertained to All in IT Solutions’ allegations by making a further submission on 21 January 2019 was an unreasonable omission. This gave rise to the need for All in IT Solutions to seek an Order for production of documents and a case management teleconference.

[71] Ms Banu did not oppose the Order for production of documents being made concerning, amongst other things, the provision of bank statements. This incurred the legal cost to All in It Solutions of the review of the bank statements.

[72] The review of the bank statements gave rise to a reasonable suspicion on the part of All in IT Solutions that the bank statements produced by Ms Banu had been adjusted by her. This gave rise to the need for a second Order for production of documents upon the Commonwealth Bank to allow the comparison of the bank statements produced by Ms Banu with the bank statements provided directly by the bank. The documents ordered for production remained outstanding from the Commonwealth Bank at the time of the discontinuance however were produced subsequently and are relevant to the costs application. A review of the bank statements reveals distinct differences between the statements produced by Ms Banu and the statements produced by the bank. I regard the apparent adjustment to the bank statements by Ms Banu as an unreasonable act.

[73] The costs that I regard as having been incurred by All in IT Solutions due to this unreasonable act and the omission relating to the failure to engage with All in IT Solutions material are:

•  the cost of preparing for and attending the telephone conference on 31 January 2019; and

•  the cost of preparing and reviewing the materials from the two Orders for production of documents.

Continuing an application for unfair dismissal remedy asserting a case known to be untenable

[74] The following circumstances are relevant to the application of s.400A of the Act as they are concerned with the continuation of the application. They are also relevant to s.611 of the Act because, although not concerned with the making of the application, they are concerned with its continuation.
[75] As stated at paragraph [40] above, Mr Taufeek Ali said that on 21 September 2018 he became aware that Ms Banu had used her work computer to conduct work for private clients during work time, 28 as he had found invoices for My Creations and pay slips from a company called Jasz Enterprises on her computer.29

All in IT Solutions said on 24 September 2018 that they presented evidence of this to Ms Banu in a meeting and she denied doing any work for anyone else at all. 30

Contrary to this version of events, Ms Banu said in her Form F2 Unfair Dismissal Application “I identified the documents as some of the invoices from my secondary employment where I managed my own business outside of my core work hours with All in IT Solutions.” 31

[76] All in IT Solutions laid out their assertions in their correspondence of 26 October 2019 referred to at paragraph [59] above. From 24 September 2018 onwards, All in IT Solutions had been investigating Ms Banu’s computer use and said they uncovered evidence that supported their assertions. The documents provided to Ms Banu in the correspondence of 26 October 2019 were her Conditions of Employment, All in IT Solutions Internet & Usage Policy, ten My Creations Invoices dated between 21 May 2017 and 27 August 2018, screenshots of Shutterstock images, eleven payslips from Jasz Enterprises dated between 14 December 2017 and 28 February 2018, two medical certificates dated 23 July 2018 and 10 September 2018 and a letter to Dr Kim Ong annotated with a note signed by Angie, receptionist, stating that the medical certificates were not issued by Dr Ong.

[77] The Form F3 Response to Unfair Dismissal Application lodged on 8 November 2019 attached a copy of this correspondence.

[78] Following this, the correspondence of 14 November 2018 that has been described at paragraph [60] above was sent.

[79] On 20 November 2018 Ms Banu provided a submission to the Commission in which she said that she undertook work for others while employed by All in IT Solutions. She said that she conducted freelance work via her company My Creations. She said that All in IT Solutions “never had any issues with my freelance work” and allowed her to use its server for this purpose. 32 She claimed that she did work for a company called Jasz Enterprise “for a few months as a freelancer after work hours”.33 She contested the assertion that it was inappropriate to use Shutterstock Images stating that “this site is international website where anyone can buy and we can download more than 15 images per day for free.”34 She said she was surprised to see the medical certificates and said she “did not provide any medical certificate for 23 June 2018 and 10 September 2018.”35

[80] On 11 January 2019 she provided another submission to the Commission restating her submissions of 20 November 2018 and making some other complaints about her treatment. 36

[81] As outlined at paragraph [65] above HWL Ebsworth, acting on behalf of All in IT Solutions, sent correspondence to Ms Banu on 17 January 2019 containing documents that pertained to the allegations against her and putting Ms Banu on notice that if she did not discontinue her unfair dismissal application the next day All in IT Solutions would be putting to the Commission that it unreasonably incurred legal costs due to her decision to continue her application despite unequivocal evidence of her misconduct.

[82] The questions to be addressed are whether, and at what point, in the face of the submissions and documents provided to Ms Banu by All in IT Solutions:

•  it was an unreasonable act or omission for Ms Banu to maintain her application or not discontinue her application (s.400A); and

•  it was reasonably apparent to Ms Banu that her application had no reasonable prospects of success (s.611).

[83] The provision to Ms Banu of invoices and pay slips beyond those provided to her on 24 September 2019 has been addressed. In the light of her receipt of these on 26 October 2018 I do not consider that it was an unreasonable omission in terms of s.400A of the Act not to discontinue her application. I am not satisfied that it would have become reasonably apparent that her application had no reasonable prospects of success in terms of s.611 of the Act. As previously stated I would have been required to apply the whole of s.387 of the Act to the evidence of All in IT Solutions and Ms Banu had the matter proceeded.

[84] The provision of Shutterstock images, medical certificates and the policies and procedures falls into the same category. Ms Banu denied knowledge of medical certificates and provided submissions concerning the Shutterstock images. A conclusion about the breach of policies and procedures also requires findings of fact. I am not able to make such findings in the absence of testing evidence in a proceeding.

[85] The documents contained in the correspondence of 17 January 2019 included a copy of a continuous log of the websites accessed by Ms Banu during her employment with All in IT Solutions and screenshots of Ms Banu’s work computer activities taken by monitoring software during her employment with All in IT Solutions. 37

[86] This is evidence that Ms Banu would have been required to respond to in a proceeding. She did not engage with it at all. Ms Banu’s failure to engage with this material by making a further submission on 21 January 2019 was an unreasonable omission. This gave rise to the need for All in IT Solutions to seek a further Order for production of documents and a case management teleconference.

[87] The costs incurred by All in IT Solutions as a result of this omission in terms of s.400A were those already determined at paragraph [70] above.

[88] Were the screenshots and computer log material so compelling as to ground a conclusion that by 17 January 2019 it was apparent to her that her application had no reasonable prospects of success? The difficulty I have in being satisfied about this is that the material itself did not allow me to draw a conclusion about it on the face of it. I found it quite indecipherable. More importantly, I do not know what Ms Banu would have said about it had she given evidence. She may be been able to refute it or put it into context. I simply do not know.

[89] Other than as found above at paragraphs [70] and [88], I have decided that Ms Banu’s failure to reply to the correspondence of 17 January 2019 is not an unreasonable omission in terms of s.400A of the Act.

[90] I am not satisfied that by 17 January 2019 it is was reasonably apparent to Ms Banu that her application had no reasonable prospects of success in terms of s.611 of the Act and I decline the costs application in relation to these circumstances.

Producing false and misleading documents to the Commission in response to an Order for production of documents

[91] These circumstances are relevant to the application of s.400A of the Act as they are concerned with the conduct of the application, but are not relevant to s.611 of the Act as they are not concerned with the making or continuation of the application.

[92] As outlined at paragraphs [71]-[72] above, Ms Banu produced bank statements in response to an Order for production that, on the face of it, gave rise to a reasonable suspicion on the part of All in IT Solutions that the bank statements had been adjusted. This gave rise to the need for a second Order to produce upon the Commonwealth Bank to allow the comparison of the bank statements produced by Ms Banu with the bank statements provided directly by the bank. The documents were outstanding from the Commonwealth Bank at the time of the discontinuance but were forthcoming. The documents that were provided by the Commonwealth Bank, on the face of it, validated the assertion that the earlier bank statements were adjusted.

[93] As this matter was not tested in evidence before me, I make no finding in relation to the bank statements. However, I do regard the provision of bank statements in the form provided as an unreasonable act in terms of s.400A of the Act. This is of such concern that I have decided to refer this to the General Manager of the Commission for consideration of whether Ms Banu has committed an offence under the Act. The costs arising from this unreasonable act are the same costs as already determined at paragraphs [72]-[73] above. Accordingly there are no further costs to order in relation to this unreasonable act.

Failing to produce certain material in response to an order for production of documents

[94] These circumstances are relevant to the application of s.400A of the Act as they are concerned with the conduct of the application, but are not relevant to s.611 of the Act as they are not concerned with the making of the application.

[95] On 6 March 2019 Ms Banu made a further submission to the Commission in compliance with directions in relation to the All in IT Solutions costs application. In this submission she stated “I do voluntary work for Reine Creative to maintain my gap months, this puts me in a better position to find suitable employment.” 38

[96] In the course of the costs application, All in IT Solutions applied for and was granted a further Order for production of documents in relation to Ms Banu’s work for Reine Creative. Documents forthcoming from Reine Creative stated that Ms Banu was a volunteer and was paid a training allowance on compassionate grounds.

[97] All in IT Solutions say that Ms Banu’s failure to produce documents to the Commission confirming she was receiving a salary from Reine Creative was an unreasonable act or omission. 39 Given the amounts in question pertained to the period following her alleged dismissal on 24 September 2019 and the response received from Reine Creative I do not consider this an unreasonable act or omission and I decline the application for costs in relation to these instances.

Reasons for discontinuing the application

[98] These circumstances are relevant to the application of s.400A of the Act as they are concerned with the conduct or continuation of the application, but are not relevant to s.611 of the Act as they are not concerned with the making of the application.

[99] All in IT Solutions say, in effect, that Ms Banu’s reasons for discontinuing the application were disingenuous and the Commission can infer that she discontinued “in urgent response” to the application for an Order for production of documents that would reveal a contravention of the Act. They say “the Costs Respondent has provided no evidence to the Commission that she did not have capacity to continue with the Proceedings. The Costs Respondent has now admitted that she would have continued her case if she had legal representation. This is inconsistent with the reasons she provided to the Commission on 6 February 2019.” 40

[100] On 6 February 2019, Ms Banu asked the Commission to adjourn the hearing of the matter on 8 February 2019.

[101] Her email was as follows:

“Regards to above matter, I apologised to let you know that I would not be able to attend to court on 8/02/2019 as I received bad news yesterday about my young sister. She had car accident in Nepal and she is in critical condition. I am not in stable condition to attend court or I might have to withdraw the case to visit her in Nepal.”

[102] In response, solicitors for All in IT Solutions wrote to the Commission on 6 February 2019 with a copy to Ms Banu as follows:

“We refer to the Applicant's correspondence at 2.36 pm this afternoon.

It is unclear whether the Applicant is requesting to adjourn or discontinue this matter.

The Respondent confirms it will not consent to an adjournment unless the Applicant provides the Commission with satisfactory medical evidence of the reasons for the adjournment.

In light of the above concerns, the Respondent respectfully requests that the matter be urgently relisted this afternoon before Deputy President Booth for further case management and to ascertain the Applicant's intentions with regard to the hearing of this matter. The Respondent's representatives are available to attend a listing of this matter at any time this afternoon.

Our client has incurred significant costs in this matter to date and will continue to incur further costs up to and including 8 February 2018 unless the Applicant's intentions are properly clarified.

If you have any questions in respect of this correspondence, please do not hesitate to contact us.”

[103] Following this, the Commission received another email from Ms Banu as follows:

“Dear Associate,

I would like to discontining [sic] this matter and I apologised.

Reason of discontined [sic], I am not able to prepared myself because of the incident of my sister, also I am going through depression and i am not mentally stable to present myself.”

[104] My Associate sought a signed Notice of Discontinuance from the applicant on 6 February 2019, requesting that it be provided by no later than 5pm on 7 February 2019. On 7 February 2018, the Commission received a handwritten and signed Notice of Discontinuance from the applicant within the specified timeframe.

[105] I do not consider that the subjective reasons for Ms Banu’s decision to discontinue her application are relevant to the consideration of costs, even if they were unreliable. I have considered at paragraph [90] above whether the unfolding documents unearthed by All in IT Solutions investigating their computer systems and the Orders to produce are so compelling as to support the contention that there was an unreasonable act or omission on Ms Banu’s part in continuing her application, after she became aware of them. I have indicated that I am not satisfied that continuing her application was an unreasonable act, or that not discontinuing her application was an unreasonable omission in terms of s.400A. It follows that her discontinuance when notified, and the basis for it, could not be considered an unreasonable act or omission in terms of s.400A. I decline the application for costs in relation to this circumstance.

Costs incurred in making an application for costs

[106] As outlined at paragraph [21] of this decision, s.400A of the Act outlines that the Commission may make an order for costs against a party to a matter arising under Part 3-2 of the Act for costs incurred by the other party to the matter if the Commission 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. 41

[107] The question arises as to whether the present costs application should be properly construed as a matter arising under Part 3-2 of the Act.

[108] This costs application was made by way of a Form F6 Application for costs filed by HWL Ebsworth on behalf of All in IT Solutions on 20 February 2019 in compliance with the time requirement set out in s.402 of the Act. The application was not given a fresh matter number and was instead filed under the same matter number as Ms Banu’s original unfair dismissal application – U2018/10302. This is the standard process for costs applications in the Commission.

[109] I consider that the costs application constitutes an extension of the initial proceedings instituted by Ms Banu and is a matter arising under Part 3-2 of the Act.

[110] I acknowledge that All in IT Solutions incurred costs in making its costs application. I note my decision is discretionary. In the light of my findings that only a small part of the costs application is upheld I decline to make an order for costs in relation to the costs application.

Conclusion

[111] I have considered the circumstances of this case as disclosed in the documents provided by All in IT Solutions and Ms Banu. I have considered ss.400A and 611 of the Act and the case law providing guidance on the application of these sections of the Act.

[112] I have concluded that Ms Banu’s failure to attend the conciliation on 9 November 2018 was an unreasonable omission that incurred costs.

[113] I have concluded that Ms Banu’s failure to engage with certain submission and evidence of All in IT Solutions was an unreasonable omission that incurred costs.

[114] I have concluded that Ms Banu’s production of an apparently altered bank statement was an unreasonable act that incurred costs.

[115] In all the circumstances I have decided that it is appropriate to exercise my discretion to award costs pursuant to s.400A to All in IT Solutions in relation to the unreasonable act and unreasonable omissions set out in this decision and summarised in paragraphs [113]-[116] above.

[116] Pursuant to s.400A of the Act, I order that Ms Banu is to pay, on a party-party basis, costs incurred by All in IT Solutions as a result of:

•  The attendance at, and review of, the aborted conciliation conference of 9 November 2019; and

•  The preparation for and attendance at a teleconference on 31 January 2019; and

•  The preparation of an F52 application for Order for production of documents following the teleconference of 31 January 2019; and

•  The review of the material produced in compliance with the Order for production of documents dated 31 January 2019; and

•  The preparation of an F52 application for an Order for production of documents dated 6 February 2019; and

•  The review of the material produced in compliance with the Order for production of documents dated 6 February 2019.

[117] In all other respects, All in IT Solutions’ application for costs pursuant to ss.611 and 400A of the Act is declined.

[118] All in IT Solutions is to provide a written itemised assessment of the costs pertaining to the costs events listed in paragraph [118] above within 14 days of this decision, noting that the rate or amount claimed for items that are mentioned in the Schedule of Costs contained in Schedule 3.1 of the Fair Work Regulations 2009 (Cth) must not exceed the rate or amount appearing in that Schedule (see s.403(2) of the Act).

[119] The parties are then directed to confer and seek to reach agreement on the quantum of costs. If the costs are not agreed within 14 days of the provision of the assessment to Ms Banu, All in IT Solutions is to lodge the itemised assessment in the Commission for referral to Deputy President Clancy for the purposes of taxing the costs.

[120] The costs are to be paid within 28 days of the date of this decision (if the quantum is agreed), or within 28 days of the date the costs are taxed by the Commission, whichever is the later.

DEPUTY PRESIDENT

Final written submissions:

Ms Praween Banu, 6 March 2019.

All in IT Solutions, 3 April 2019.

Printed by authority of the Commonwealth Government Printer

<PR708854>

 1  As outlined at paragraphs 1-6 of the Form F3 provided by All in IT Solutions, Ms Banu commenced employment with Building Products Australia Pty Ltd on 3 September 2012 and her employment transferred between this company and All in IT Solutions throughout the period 2012 to 2018. 1 July 2015 is the date upon which Ms Banu entered into a written contract of employment with All in IT Solutions.

 2   Form F3, paragraph 24.

 3   Statement of Mr Taufeek Ali (undated), received 21 January 2019, paragraph 9.

 4   Fair Work Act 2009 (Cth), s.385.

 5   [2016] FWCFB 2478 at [61].

 6 Ibid at [43].

 7   [2012] FWAFB 8109.

 8   [2017] FWC 2943.

 9 Ibid at [26].

 10   [2015] FWCFB 1956 at [17].

 11   [2014] FWCFB 810.

 12 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.

 13   Heidt v Chrysler Australia Limited (1976) 26 FLR 257 at [272 - 273]; Geneff v Peterson (1986) 19 IR 40 at [87-88]; Hatchett v Bowater Tutt Industries Pty Ltd (1991) 28 FCR 324 at 327; Re Ross and others, Ex Parte Crozier (2001) 111 IR 282 at [12]; Re Australian Education Union (NT Branch) (No.2) [2011] FCA 728 at [30]. Also see Wright v Australian Customs Service, PR926115, 23 December 2002 per Giudice J, Williams SDP and Foggo C and Church at [33].

 14   [2016] FWCFB 2478.

 15   [2011] FWAFB 810 at [23]-[24].

 16   To harass or embarrass or gain a collateral advantage as per North J in Nilsen v Loyal Orange Trust

[1997] IRCA 267 (11 September 1997) at [22].

17 Form F3 at 24.

 18   Statement of Mr Taufeek Ali (undated), received 21 January 2019, at paragraph 80.

 19   Ibid, paragraph 104.

 20   Statement of Mr Taufeek Ali (undated), received 21 January 2019, at paragraphs 128, 131 and 134.

 21   Statement of Mr John Assaf dated 21 January 2018.

 22   Form F2 Application for Unfair Dismissal Remedy.

 23   Submission of Ms Praween Banu dated 20 November 2018.

 24   Submission of Ms Praween Banu dated 5 February 2019.

 25   Fair Work Act 2009 (Cth), s.387.

 26   Statement of Mr Taufeek Ali (undated), received 21 January 2019 at paragraph 165.

 27   Statement of Peta Cherie Tumpey, 27 February 2019 at paragraphs 25 – 31.

 28   Statement of Mr Taufeek Ali (undated), received 21 January 2019 at paragraph 80.

 29   Ibid, paragraph 104.

 30   Statement of Mr Taufeek Ali (undated), received 21 January 2019, at paragraph 128.

 31   Form F2 Application for Unfair Dismissal Remedy.

 32   Submission of Praween Banu, 21 November 2018.

 33   Ibid.

 34   Ibid.

 35   Ibid.

 36   Submission of Praween Banu, 11 January 2019.

 37   Statement of Peta Cherie Tumpey, 27 February 2019, paragraph 25 – 31.

 38   Submission of Praween Banu, 6 March 2019.

 39   Costs Applicant’s Outline of Submissions in Reply, 3 April 2019, Annexure A.

 40   Costs Applicant’s Outline of Submissions in Reply, 3 April 2019, Annexure A.

 41   Fair Work Act 2009 (Cth), s.400A(1).