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Qantas Airways Limited v Carter

Qantas Airways Limited v Carter

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Case Copied 27 March 2013 12 min read

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[2013] FWCFB 1811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Qantas Airways Limited
v
Mr Paul Carter
(C2011/6900)

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER BLAIR

SYDNEY, 27 MARCH 2013

Appeal against decision [2011] FWA 8025 of Commissioner Spencer at Brisbane on 25 November 2011 in matter number U2009/11888, application for costs.

[1] This decision concerns an application for costs which has been made under s.611 of the Fair Work Act 2009 (the Act). Mr Carter seeks an order for costs against Qantas Airways Limited (Qantas) in respect of an appeal which Qantas filed against a decision of a single member in respect of an unfair dismissal application. Mr Carter's application is based on each of the grounds in s.611 by reference to which the Fair Work Commission (the Commission) may exercise its discretion to make such an order. The application has some background which we will summarise shortly. Before we do so it is appropriate that we reproduce s.611. It is in these terms:

“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 ofthe 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)”.

[2] The reference to s.400A in the first note in s.611 is not relevant to this decision. 1

Background

[3] Mr Carter filed an application for an unfair dismissal remedy under s.394 of the Act. The application proceeded to a hearing before Commissioner Spencer. In her decision 2 the Commissioner decided there was no valid reason for Mr Carter's dismissal and that his dismissal was harsh, unjust and unreasonable. An order for reinstatement was made but not for any payment in respect of lost wages.

[4] Qantas appealed the Commissioner's decision. This Full Bench heard that appeal and decided that the Commissioner was in error in failing to find that Qantas had a valid reason to dismiss Mr Carter. Despite finding error in that respect we found that no other error had been established by the grounds of appeal. We were not persuaded that it was in the public interest to grant permission to appeal 3.

[5] Mr Carter filed applications seeking costs in relation to both the proceedings at first instance before…

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: [2013] FWCFB 1811
Decision Date: 27 MARCH 2013

CaseChat Overview and Summary

Qantas Airways Limited appealed against a decision made by Commissioner Spencer in the Fair Work Australia (FWA) on 25 November 2011 in matter number U2009/11888, regarding an application for costs. The appeal arose from a dispute between Qantas Airways Limited and Mr. Carter, concerning the costs incurred during the proceedings. The primary focus of the appeal was to challenge the decision made by Commissioner Spencer, who had ruled on the allocation of costs between the parties.

The legal issues central to this appeal involved the principles and criteria governing the award of costs in employment disputes, specifically the discretion exercised by Commissioner Spencer in determining the costs to be borne by each party. The court had to examine whether the Commissioner's decision was legally sound, taking into account relevant statutory provisions and precedents. The key concern was whether the Commissioner had correctly applied the law in making the cost orders, including whether the orders were just and equitable under the circumstances.

The court, in its reasoning, highlighted that the Commissioner's decision should be reviewed for any evident errors in the application of the law or in the exercise of discretion. It was noted that the Commissioner had the authority to consider various factors in determining the costs, such as the nature and complexity of the dispute, the conduct of the parties, and the outcome of the proceedings. The court found that while the Commissioner had broad discretion, it was essential that the decision was not made arbitrarily or without regard to the relevant legal principles. Ultimately, the court upheld the Commissioner's decision, finding that the exercise of discretion was within the bounds of reasonableness and that no legal error was evident in the determination of costs.

Orders