Qizhi Chen v Monash University

[2015] FWC 2798

[2015] FWC 2798 [Note: Appeals pursuant to s.604 (C2015/3897) were lodged against this decision - refer to Full Bench decisions dated 10 June 2015 [[2015] FWC 3871], 11 June 2015 [[2015] FWC 3888]] and 25 June 2015 [[2015] FWCFB 4037]] respectively for result of appeals.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Qizhi Chen
v
Monash University
(U2014/16593)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 APRIL 2015

Application for relief from unfair dismissal – costs application.

[1] Ms Qizhi Chen filed an application alleging the termination of her employment by Monash University was unfair. Ms Chen’s dismissal took effect on 25 June 2014 and her application was not lodged until 19 December 2014.

[2] Monash University objected to Ms Chen’s application because it was not lodged within 21 days of the date the dismissal took effect. It further objected because Ms Chen made a complaint to the Australian Human Rights Commission (AHRC) in relation to her dismissal on 30 September 2014 and at the time that she made the unfair dismissal application that complaint had not been withdrawn or failed for want of jurisdiction.

[3] It submitted that section 725 of the Fair Work Act 2009 (the Act) operates to prohibit Ms Chen from making an unfair dismissal application.

[4] On 16 January 2015, directions were issued to the parties to file material. On 17 January 2015 Ms Chen filed a general protections application and asked that it replace her unfair dismissal application.

[5] On 20 January 2015, Ms Chen advised the Fair Work Commission that she should have made a general protections application and that due to being unrepresented she had mistakenly filed an unfair dismissal application.

[6] On 23 January 2015, Ms Chen was advised that she could not amend her unfair dismissal application to make it a section 365 application. 1 She was advised that she needed to discontinue her unfair dismissal application and lodge a section 365 application. On the same day Ms Chen discontinued her unfair dismissal application and lodged a new general protections application.

[7] On the same day, the parties were notified that the hearing was cancelled as Ms Chen had discontinued her application.

[8] On 27 January 2015, Monash University filed its material in support of its jurisdictional objection.

[9] On 3 February 2015, Monash University made an application for costs.

Submissions of Monash University

[10] Monash sought costs under section 400A for all costs incurred between 17 and 23 January 2015 because Ms Chen failed to notify Monash within a reasonable time after 17 January 2015 that she intended discontinuing her unfair dismissal application.

[11] It submitted that it had been directed to file its material by 27 January 2015. As Monday was a public holiday, to enable it to comply with the directions the material had to be prepared in the period 19 January to 23 January 2015. To ensure it complied with the direction it provided the draft witness statements on 22 January 2015 so that they could be finalised in time.

[12] Ms Chen did not discontinue her application until 23 January 2015 and Monash was not advised until 1.07pm that day.

[13] When Ms Chen received the material filed by Monash she advised them that she had filed a general protections application on 17 January 2015 and she provided a copy of that application to Monash.

[14] The Commission served that application on Monash on 28 January 2015.

[15] On 30 January 2015, Monash made an open offer to Ms Chen that it would not pursue costs in relation to the unfair dismissal claim if Ms Chen withdrew her general protections claim.

[16] Ms Chen did not accept that offer.

[17] On 4 February 2015, Ms Chen discontinued her general protections application.

[18] Monash submitted that it was unreasonable for Ms Chen not to notify Monash or the Commission that she intended discontinuing her unfair dismissal application from on or about 17 January 2015.

[19] Monash submitted that throughout the period from when she lodged her unfair dismissal application Ms Chen was actively seeking to pursue a remedy in relation to her dismissal with the AHRC and the Federal Court.

[20] In addition, Monash submitted that her failure to accept the settlement offer made on 30 January 2015 was unreasonable.

Submissions of Ms Chen

[21] Ms Chen submitted that no costs order should be made. It was submitted that Ms Chen was not able to make an unfair dismissal application until her AHRC complaint had been terminated.

[22] Ms Chen submitted that she had indicated to the Commission on 17 and 20 January 2015 that she wished to discontinue her unfair dismissal application but she was unsure of how to do this. In her correspondence with the Commission, she advised the Commission why she wished to discontinue. She further submitted that Monash should have realised that from reading the unfair dismissal application that she should have lodged a general protections application. She submitted that she lodged her unfair dismissal application by mistake. Ms Chen submitted that the delay between 20 January 2015 and 23 January 2015 “was a result of the natural procedural process of the Commission.” She submitted that she repeatedly indicated to the Commission on 17 and 20 January 2015 that she wanted to discontinue her application. Ms Chen submitted that she did not know of the discontinuance procedures of the Commission.

[23] Further, Ms Chen denied that she rejected the offer made to her on 30 January 2015, rather she suggested an alternative time schedule.

[24] It was further submitted that Ms Chen’s actions did not cause Monash to incur costs because even if Ms Chen had formally discontinued on 17 January 2015 and then lodged her general protections claim, Monash would still have needed to produce the documents to support its jurisdictional objection to the general protections claim.

[25] Ms Chen further submitted that she was not aware that she was required to inform Monash of her intensions as the procedures of the Commission are different to the Court and the AHRC and in any event when she contacted the Commission she was only seeking advice about procedure.

Consideration

[26] Monash is seeking its costs for the period 17 January to 23 January 2015. Monash also seeks costs of the costs application. In this matter Monash put Ms Chen on notice that it was seeking costs of its costs application. There has been no submission made in this matter that there is no power to award the costs of the costs application.

[27] The unreasonable acts relied upon by Monash were Ms Chen’s failure to discontinue at an earlier date and/or her failure to advise Monash that she had filed her unfair dismissal application by mistake and that she was seeking to amend her application and that she unreasonably refused to accept their offer of settlement.

Failure to discontinue and/or advise Monash University

Timeline

[28] Ms Chen filed an unfair dismissal application on 19 December 2014. In her covering email she stated: “I wish to make an application on unlawful dismissal due to my complaint of sex discrimination against Monash University.”

[29] The Employer Response form filed on 24 December 2014 put Ms Chen on notice that Monash objected to her application because it was not made within 21 days and that her unfair dismissal application could not be made because of her complaint to the AHRC.

[30] Ms Chen filed a general protections application on Saturday 17 January 2015 and she attached an email which said:

“My application is currently unfair dismissal. However the reason of unfair dismissal was due to my complaint about sexual harassment. As such it seems more accurate to classify my case into “General Protections Application Involving Dismissal”.

Hence, I would be extremely grateful if you could replace my original F2 with the attached F8. The content of my Form 8 is essentially the same as Form 2: the section “3.3 Explain how the action...” of my Form 8 is almost the same as Section “3.2 Why was the dismissal unfair?” of my Form 2. In Form 8, I briefed the termination action of of my employment by Monash University in section 3.1.

Many thanks for any help from you -A proper jurisdiction basis “351 discrimination” is essential to my matter.”

[31] On 20 January 2015 Ms Chen wrote to the Commission requesting an adjournment of her unfair dismissal matter:

“Re: Request for adjournment of list U2014/16593

20 January 2015

To whom this may concern

I refer to my email to [email protected], dated 17 January 2015, I request for adjournment of list U2014/16593 on the following ground:

My application is currently unfair dismissal. However the reason of unfair dismissal was due to my complaint about sexual harassment, as demonstrated in my application F2. As such it is proper to classify my case into “General Protections Application Involving Dismissal”. A proper jurisdiction basis “Section 351 Discrimination” of FW Act 2009 is essential to my matter.

I only discovered on 17 January 2015 that a complaint about unfair dismissal that breaches anti-discrimination laws should be lodged with a different form (Form 8). Hence, I wish to replace my original filled F2 with the attached F8, or withdrew F2 and lodge F8, or please advise me any available procedure that could minimise the inconvenience caused, for which I sincerely apologise but I am unrepresented and the procedural manner of FWC is completely new to me.”

[32] Ms Chen did not forward these emails to Monash.

[33] On 23 January 2015, Ms Chen was told by a member of staff of the Commission that she could not amend her unfair dismissal application to a s.365 application and if she wished to pursue her s.365 application she needed to discontinue her unfair dismissal application and then refile her s.365 application. She was advised that she could discontinue by telephone and she advised that she would do this. Monash were advised on the same day that the matter had been discontinued.

[34] Ms Chen was aware that both she and Monash were required to file material by 27 January 2015. I agree with Monash’s submissions that Ms Chen knew that for Monash to file its material that it would need to have completed a substantial part of the work before 23 January 2015 as the Monday was a public holiday and the material was due at noon on the following Tuesday.

[35] I do not accept Ms Chen’s submissions that she repeatedly told the Commission that she wished to discontinue her unfair dismissal application. As is clear from the emails sent to the Commission at first instance Ms Chen simply sought to substitute a general protections application for her unfair dismissal application. In her second email she asked for an adjournment of her unfair dismissal matter and sought advice on the procedure she should follow to either replace her unfair dismissal application with a general protections application or withdraw her unfair dismissal application and lodge her general protections matter.

[36] Ms Chen was provided with that procedural advice on 23 January 2015 and she discontinued that day.

[37] Ms Chen submitted that she was not aware that she was required to inform Monash of her intentions. There was of course no legal obligation on Ms Chen to alert Monash to the fact that she was considering discontinuing her application. However given she knew about the directions she knew Monash would be working on its material. Had she copied her email to the Commission to Monash these costs may have been avoided. Monash may not have prepared the material it did.

[38] Of course until Ms Chen discontinued her application, Monash was required to comply with the directions of the Commission. As such, her decision not to discontinue until 23 January 2015 also caused Monash to incur costs.

[39] Ms Chen did not provide any explanation of why she did not seek to file a general protections application until 17 January 2015.

[40] Ms Chen was dismissed in June 2014. She had six months to determine which type of application she should make to the Commission.

[41] Ms Chen was aware when she lodged her unfair dismissal application that it was based on claims of sex discrimination.

[42] Having made her unfair dismissal application she then took two months to decide not to proceed with it and make a general protections application which she then shortly thereafter discontinued.

[43] Once she made her unfair dismissal application, she had had the benefit of Monash’s response which put her on notice that her application was opposed because it was lodged out of time and because she had made a complaint to the AHRC which had not been withdrawn or failed for want of jurisdiction.

[44] Ms Chen has not provided a satisfactory explanation of why she did not take the steps she took until 17 January 2015.

[45] I therefore find that Ms Chen’s failure to discontinue her application at an earlier time was unreasonable.

[46] I do not accept the submission that that material would needed to have been prepared anyway because the same objections would be raised to the general protections application.

[47] While the Commission would have been required to determine the question of whether Ms Chen should be granted an extension of time, whether it would have been required to determine the other objection is less clear in light of the decision of the Full Bench in Hewitt v Topero Nominees Pty Ltd 2. Had the general protections matter proceeded and Monash relied upon the same material, this submission may have had some weight however, given Ms Chen discontinued her general protections application on 4 February 2015, the submission carries no weight.

[48] I find that her unreasonable conduct caused Monash to incur costs and that those costs could have been avoided if Ms Chen had discontinued her application on 17 January 2015 being the date she attempted to substitute a general protections application for her unfair dismissal application. I find that Monash is entitled to its costs for work performed between 17 January 2015 and 23 January 2015.

The offer of settlement

[49] On 30 January 2015, Monash made an offer of settlement. That offer was open until 2 February 2015. In that letter Monash offered to forgo this costs application if Ms Chen discontinued her general protections application. I do not consider that I can have regard to this in relation to costs incurred up to 23 January 2015 as the offer was not made until after Ms Chen had discontinued her application.

[50] Ms Chen submitted that she did not unreasonably refuse to accept the offer and I accept that submission. She asked that she be given until 6 February 2015 to consider the options. While that date was not reasonable, as that was the last date Monash could make its costs application, it could have responded by giving Ms Chen some additional time to consider the offer. Instead it advised Ms Chen on 2 February 2015 that it would proceed with its costs application.

[51] I do not consider that Ms Chen was unreasonable in rejecting this offer.

Conclusion

[52] I have found Ms Chen’s conduct in not discontinuing her application at an earlier time unreasonable and this caused Monash to incur costs. Therefore the necessary prerequisites have been met.

[53] Still the decision to award costs is discretionary and there is a presumption that parties will bear their own costs. While I accept that Ms Chen was unrepresented she was not an unsophisticated litigant and she was aware of the preparation necessary to conduct litigation. Ms Chen had been on notice since 24 December 2014 that Monash objected to her application. Further this is not a case where Ms Chen took on board the objection and discontinued her application. Instead she sought to substitute her unfair dismissal application for a general protections application and when she was advised that she could not do so she discontinued her unfair dismissal application and filed a general protections application where the same objections would apply.

[54] I consider that this is an occasion in which Ms Chen should be ordered to pay the costs incurred by Monash between 17 January and 23 January 2015. I am not prepared to order Ms Chen pay Monash’s costs of the costs application.

[55] On a preliminary review of the costs schedule provided those amounts claimed at items 1, 3, 4(c), (d), and (e). Items 1, 3(b), 4(c), (d) and (e) are costs of the costs application. Item 3 (a) is instructions to oppose the application. Those instructions were given before 17 January 2015. Further I have formed the preliminary view that the amount claimed for general care and conduct should not be accepted. Item 7 refers to conferral between solicitors in relation to the preparation of material. I am not prepared to order Ms Chen pay those costs. I am prepared to allow an amount for the preparation of the submissions and affidavit in the order of $1614.

[56] If Monash wishes to make submissions in support of its claim for those items, it should do so by close of business on 30 April 2015 or it can advise my chambers at any time prior to that date that it does not want to make any further submissions. Otherwise I will issue an order that Ms Chen pay Monash $2260 in costs within 14 days of the date of the order.

DEPUTY PRESIDENT

 1   See Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660

 2   [2013] FWCFB 6321

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