Rachael Raven v Bank Australia Limited T/A Bank Australia

[2018] FWC 692

[2018] FWC 692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael Raven
v
Bank Australia Limited T/A Bank Australia
(U2017/3820)

COMMISSIONER GREGORY MELBOURNE, 1 FEBRUARY 2018

Application for relief from unfair dismissal; s.400A and s.611; application for costs.

Introduction

[1] On 19 June 2017 the Commission handed down a decision in response to an unfair dismissal application brought by Ms Rachael Raven. 1 Bank Australia had previously raised a jurisdictional objection to the application on the basis that Ms Raven was not a person protected from unfair dismissal as she had not completed the six month minimum employment period required under s.382 of the Fair Work Act 2009 (Cth) (“the Act”).

[2] The Commission in its decision dismissed Ms Raven’s application indicating in conclusion:

“[40] I am satisfied, in conclusion, that the evidence establishes that Ms Raven was told her employment had been terminated with immediate effect in the meeting on 29 March 2017, and her subsequent actions and behaviour make clear she understood at the time that this was what had occurred. It follows that her employment has been terminated prior to the completion of the minimum employment period, which ended on 2 April 2017. Therefore, Ms Raven is not a person who is protected from unfair dismissal and her unfair dismissal application must be dismissed.” 2

[3] However, on 21 June 2017, Bank Australia made Cost Applications under ss.400A, 401 and s.611(2) of the Act. It variously seeks to have –

•  Ms Raven pay Bank Australia’s legal costs incurred after 19 April 2017 on the basis that her refusal to discontinue her application after that date was an unreasonable act (s.400A);

•  Ms Raven pay Bank Australia’s legal costs on the basis that her application was made without reasonable cause and/or it should have been reasonably apparent to her that it had no reasonable prospect of success (s.611(2); and

•  Rochfort Workplace Solutions pay Bank Australia’s legal costs on the basis that it –

o encouraged Ms Raven to start and/or continue the application when it should have been reasonably apparent that it had no reasonable prospect of success; and

o engaged in an unreasonable act or acts by not discontinuing the application (s.401).

This decision deals with those applications.

[4] Mr Nick Chadwick from Chadwick Workplace Law appeared on behalf of Bank Australia. Mr Peter Rochfort from Rochforts Workplace Solutions appeared on behalf of Ms Raven. Both were given permission to appear under section 596(2)(a) of the Act.

The Issue to be Determined

[5] Section 400A of the Act states:

“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.” 3

[6] Section 401 of the Act states:

“401 Costs orders against lawyers and paid agents

(1) This section applies if:

(a) an application for an unfair dismissal remedy has been made under section 394; and

(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and

(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under this section 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.” 4

[7] Section 611 of the Act also relevantly 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).” 5

[8] Therefore:

•  has Bank Australia incurred costs because of an unreasonable act or omission by Ms Raven in connection with the conduct or continuation of her unfair dismissal application and, if so, is it appropriate in all the circumstances for the Commission to exercise its discretion to make an order for costs?

•  have costs been incurred by Bank Australia because Ms Raven made her unfair dismissal application “without reasonable cause,” and/or because it should have been reasonably apparent to her that it had no reasonable prospects of success and, if so, is it appropriate in all the circumstances for the Commission to exercise its discretion to make an order for costs?

•  has Bank Australia incurred costs because Ms Raven’s representative encouraged her to make application, or to continue with her application, in circumstances where it should have been reasonably apparent to him that she had no reasonable prospect of success and, if so, is it appropriate for the Commission to exercise its discretion to make an order for costs?

The Submissions and Evidence

Bank Australia

[9] Bank Australia relies primarily on the evidence contained in the witness statement of Ms Tracey Williams, its Head of People and Culture.

[10] It also submits that Ms Raven made application without reasonable cause in circumstances where it should have been reasonably apparent to her that her application had no reasonable prospects of success. In terms of the application made under s.611 it submits that at the time the application was made there was no prospect of it being successful because Ms Raven was already aware she had been terminated, and her subsequent conduct was consistent with this understanding. In this context it points to paragraph 34 of the earlier decision, and the Commission’s finding that it can be reasonably concluded that Ms Raven was told in a meeting on 29 March 2017 that her employment had been terminated with immediate effect. It also makes reference to the list of matters set out at paragraph 35 of the decision.

[11] Bank Australia also refers to the following extract at paragraph 37:

“[37] Her actions in attending at the Bank on the morning of Monday, 4 April, after having been absent on the previous Thursday and Friday, can perhaps also be explained in the context of a person who is endeavouring to ensure that they have completed the minimum employment period prior to their termination taking effect. However, regardless of these considerations, I am satisfied in conclusion that the evidence establishes that Ms Raven was told in the meeting on 29 March, and clearly understood at the time, that her employment had been terminated with immediate effect.” 6

[12] It also referred to an earlier decision of the Commission in Gade Naidu v Causeway
Hotels, 7 and the references in that decision to an earlier Full Bench decision in E. Church v Eastern Health t/as Eastern Health Great Health and Well-Being8 and the following extract, in particular:

“[30] We now turn to the expression ‘without reasonable cause’. 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. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union., Wilcox J put it this way:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.” 9

[13] It also responded to a question from the Commission about what were described as some “discrepancies” 10 in terms of what occurred. These included –

•  an earlier period of delay in extending Ms Raven’s probation;

•  the failure to ask for the keys to the premises to be returned at the time she was allegedly told she had been terminated;

•  the fact that she was able to return on the following Monday and gain access to the secure area of the Bank;

•  the failure to provide details about a payment that was made into her bank account until sometime after the payment was deposited;

•  the fact that there was a term in her contract of employment that provided that she was required to be to be given notice of termination in writing;

• the fact that she did not receive a letter of termination until seven days after the date on which the Bank claims her employment was terminated.

[14] Bank Australia responded by indicating that despite these “discrepancies” Ms Raven’s behaviour made it “crystal clear” 11 that she was aware of what had actually occurred, and that her employment had been terminated with immediate effect on 29 March 2017. Therefore, she should not have instructed that an unfair dismissal application be lodged on her behalf.

[15] Bank Australia also refers to the Full Bench decision in Baxter Healthcare Pty Ltd T/A Baxter Healthcare v Mr Andrew Portelli 12handed down in July last year, and the following extract from the decision which it cites as a reference to the decision of the Full Bench:

“…the reference point for determining whether section 611(2)(b) of the FW Act is satisfied cannot be limited to the time at which the application is made but applies in the course of proceedings until the time at which the matter is determined by the Commission or discontinued.” 13

[16] However, the Commission notes in response that it appears that this is not an extract from the decision of the Full Bench, but is instead a reference by the Full Bench to an extract from the decision at first instance.

[17] Bank Australia also relies on the various correspondence dated 19 and 20 April and 22 May from its Solicitor to Ms Raven’s representative, which is attached to Ms Williams’ witness statement. It invites Ms Raven to discontinue the application as it lacks substance, and foreshadows the possibility of a future costs application if it continues to be pursued.

[18] In terms of the costs application pursued in respect of Ms Raven it indicates, in summary, that she was aware her employment had been terminated before the minimum employment period had been completed, and this was evidenced by her actions. Her application accordingly had no reasonable prospects of success, and she acted unreasonably in continuing to pursue the matter. In addition, she unreasonably refused several offers to discontinue the application.

[19] In terms of the application made under s.401 it submits Mr Rochfort encouraged Ms Raven to commence and then persist in pursuing her application in circumstances where it must have been reasonably apparent to him that it had no reasonable prospects of success. In this context it relies on the decision of the Full Bench in Veal v Sundance Marine P/L atf Sundance Unit Trust t/a Sundance Marine; Sundance Marine P/L atf Sundance Unit Trust t/a Sundance Marine v Veal 14and the following extract, in particular:

“[15] Section 401 refers to the concept of whether it should have been reasonably apparent that a person had no reasonable prospect of success. We address that concept relative to s.611(2)(b) but note that, because the section applies to the actions taken or not taken by a legal representative of a party it seems to us to follow that these actions or omissions by legally qualified and trained people should be measured against a higher standard than that which would apply to an unrepresented party, by virtue of the representative’s training and expertise.” 15

[20] It continues to submit that Mr Rochfort failed to make proper enquiries regarding the date of termination, and then advised Ms Raven on 29 March 2017 that she was still technically employed because she had not received a letter of termination at that time. She then received the termination letter on 5 April 2017, but her application was still filed on 7 April 2017. In its submission the application should never have been lodged, and Mr Rochfort failed to advise Ms Raven to discontinue her application when it was evident it had no reasonable prospect of success.

[21] It submits, in conclusion, based on the Commission’s previous decision, and the facts known to both Ms Raven and Mr Rochfort at the relevant times, that Ms Raven’s application should be treated as one that is an exception to the general principle that each side bears its own costs.

Ms Raven and Mr Rochfort – the Evidence and Submissions

Ms Raven

[22] Ms Raven relies on the witness statements she provided in the earlier proceedings, but also makes particular reference to the following matters. On 28 March last year she was asked to attend a meeting on the following day with the Bank’s Regional Manager. She was told the discussion was to be about her performance, but was not given any prior indication about any dissatisfaction with her performance, or that the meeting might result in the termination of her employment. She also made it known prior to the meeting that she was unwell, but nevertheless decided to attend because she did not want to delay or frustrate the process.

[23] She was unaware that notes were being taken during the course of the meeting, and did not understand a lot of what was said. While reference was made to her employment being terminated she understood she was being given a further month to come up to the standard required. In addition, there was no attempt to seek return of the Bank’s property at the conclusion of the meeting, including the keys to the premises, which would have been expected if the Bank was acting to terminate her employment at that time.

[24] Ms Raven said she was still feeling unwell when she left the meeting and attempted to obtain an appointment with her GP. She was also confused and uncertain about her current position with the Bank and decided to contact Mr Rochfort that evening to seek his advice. She then believed, based on his advice, that she was still technically employed at that time, given she had not been provided with a formal letter of termination at that point.

[25] Her health then improved over the next few days and she decided to return to work on the following Monday, knowing she was under pressure to improve her performance, but still uncertain about precisely what changes were required. She had still not received a letter of termination at this time.

[26] When she returned to the Bank on Monday morning she gained entry in conjunction with two other employees, who made no comment about her having been dismissed. She was unable to access her computer, but this was not unusual, and she began to perform her normal duties. She was then contacted by the Regional Manager, who asked what she was doing but made no reference to her having been dismissed. She was then told that another Branch Manager, Mr Lowther, wanted to meet with her, however, she then left the premises because she was again feeling unwell. She then became aware that a significant amount of money had been deposited into her bank account, however, it was not accompanied by any explanation about what it constituted. These details were not provided to her until 5 April 2017.

[27] She again contacted Mr Rochfort on 5 April 2017 and was again advised she could not have been terminated because she had not been provided with a letter of termination. He also made reference to other perceived shortcomings in the process followed by the Bank. She accordingly gave him instructions to lodge an unfair dismissal application on her behalf on the basis that she was a protected person and had met the jurisdictional requirements, including the minimum employment period, given it was now more than six months since she was first employed.

[28] She also indicated that she was aware of the subsequent correspondence received from Bank Australia’s solicitor, but believed the matter should be determined by the Commission, as she had been advised it was possible for her application to be successful.

Peter Rochfort

[29] Mr Rochfort has been the principal in a practice that specialises in providing advice about employment matters since 1984, and previously worked with an employer organisation in the road transport industry. He has been providing advice about workplace relations matters for more than 30 years.

[30] His advice to Ms Raven was based on the facts provided to him, and his understanding of the law, including the requirement in s.117 of the Act for notice of termination to be provided in writing. He advised Ms Raven that she should wait on written confirmation of her termination in order to determine whether she had a reasonable chance of pursuing a successful unfair dismissal application. He subsequently received instructions from her to lodge an application on her behalf.

[31] He also provided a copy of correspondence, dated 19 April 2017, which he forwarded to Chadwick Workplace Law which detailed the nature of his advice to Ms Raven.

[32] The submissions provided on behalf of Ms Raven indicate, in conclusion, that Bank Australia failed to provide clear communication to her about the decision to terminate her employment and, instead, she received “mixed messages” 16 about its intentions. The following matters are highlighted in this context.

•  She was not informed about what was to be discussed prior to the meeting on 29 March 2017, and was not told it could result in her employment being terminated. Therefore, it was not surprising that she was confused and bewildered at the conclusion of the meeting. However, it was her understanding at that point that she had a further month to improve her performance before any decision would be made about her ongoing employment.

•  In any case she was unwell and not in a fit state to attend the meeting.

•  She understood there was a provision in her employment contract that provided she could only be terminated by being given notice in writing.

•  There was no formal process or request for her to hand over any Bank property in her possession, including the keys to the premises, at the conclusion of the meeting. She was simply left on her own with the keys still in her possession.

•  She then returned to work on the following Monday and gained access to the secure area of the Bank without question, and went through the normal processes of commencing work.

•  The Regional Manager then rang to ask what she was doing, but took no action to remove her from the premises. He instead asked another Branch Manager, Mr Lowther, to make contact with her. However, Ms Raven then left before meeting with Mr Lowther because she was again feeling unwell.

•  An additional amount was deposited into her bank account on 29 March 2017, but nothing was provided about what this amount represented until 5 April 2017. These details could have been emailed to her at the time the deposit was made.

[33] In these circumstances Ms Raven submits her instruction to Mr Rochfort to lodge an unfair dismissal application on her behalf was “both reasonable and understandable,” 17 and she had reasonable grounds to take issue with the decision to terminate her employment.

[34] In terms of the application made under s.601 Ms Raven submits the circumstances referred to above again created genuine uncertainty about the actual date of her termination. In this context she refers particularly to the failure to provide a formal letter of termination until 5 April 2017 when other options, such as forwarding the letter by email, were obviously available. She emphasises that by the time she received the letter the six month minimum employment period had been completed, and this also explained why the subsequent offers from Bank Australia to discontinue the matter had not been accepted.

[35] In terms of the application made under s.400A, and the claimed “unreasonable act or omission,” Ms Raven submits that the reasons for declining the settlement proposals “were set out and described to the Bank” 18 in the correspondence forwarded to its representative on her behalf. She also submits that Mr Rochfort did not cause Bank Australia to incur additional costs at any stage, and did not encourage Ms Raven to commence or continue the application in circumstances where it should have been reasonably apparent to him that the matter had no reasonable prospect of success. Mr Rochfort also denies he ever acted unreasonably at any time in regard to the conduct of the matter.

Consideration

[36] Bank Australia made reference in its submissions to two recent Full Bench decisions which have considered the Commission’s powers to make costs orders. The nature of those powers were reviewed in some detail, in particular, by the Full Bench in Church v Eastern Health t/as Eastern Health Great Health and Well-Being 19 (“Church”). In considering the scheme of the legislation the Full Bench stated at the outset:

“...it is important to appreciate that the Commission, as a statutory tribunal, has no inherent power to make costs orders. Its powers to make such orders must be derived from the FW Act.” 20

[37] It then continued to identify the various sections of the Act that enable an order for costs to be made. In regard to the powers under s.400A it stated that:

“[18] Section 400A provides that the Commission may make a costs order against a party to a matter arising under Part 3-2, if satisfied that the first party caused those costs to be incurred because of their unreasonable act or omission in connection with the conduct or continuation of the matter. Part 3-2 of the FW Act deals with ‘Unfair Dismissal’.” 21

[38] Turning to s.611 the Full Bench began by stating (references omitted):

“[21] Ascertaining the meaning of s.611 necessarily begins with the ordinary and grammatical meaning of the words used. These words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.” 22

[39] It continued to indicate:

“[26] Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s.611(1)) - and then provides an exception to that general rule in certain limited circumstances. The Explanatory Memorandum confirms this interpretation of the section, it is in the following terms:

2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.

2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.” 23

[40] It also drew some similarities with the provisions contained in s.570 of the Act, dealing with the powers of the Federal Court to make costs orders if proceedings are instituted vexatiously. The Full Bench continued to state (references omitted):

“[27] In the context of s.570 and its legislative antecedents courts have observed that an applicant who has the benefit of the protection of a provision such as s.570(1), (ie the general rule that parties bear their own costs), will only rarely be ordered to pay costs 5 and that the power should be exercised with caution and only in a clear case6. In our view a similarly cautious approach is to be taken to the exercise of the Commissions powers in s.611 of the FW Act.” 24

[41] The Full Bench then turned to consider the meaning of the expression “vexatiously or without reasonable cause.” Leaving aside its considerations about the meaning of “vexatiously,” given it is not relevant in the present matter, the Full Bench concluded in regard to “without reasonable cause” (references omitted):

“[30] We now turn to the expression ‘without reasonable cause.’ 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. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, (“Kanan”) Wilcox J put it this way:

‘It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.’” 25

[42] In the decision in Qantas Airways Limited v Mr Paul Carter 26 the Full Bench also considered the approach to be taken in dealing with the matter under s.611(2)(b). It concluded (references omitted):

“[19] We now turn to s.611(2)(b). The approach to be taken to considering whether such a finding should be made is summarised in the decision of the Full Bench in Baker v Salva Resources Pty Ltd (Baker). The relevant extract is as follows:

‘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 to be not reasonably arguable.’

[20] It is clear from the terms of s.611 of the Act that the point at which the Commission must determine whether or not Qantas’ application to appeal was vexatious, without reasonable cause or had no reasonable prospect of success, is when Qantas made the application to appeal.” 27

[43] Both decisions emphasise that the point at which the Commission must determine whether or not an application is made “without reasonable cause” is at the time the application is made.

[44] The decision in Kanan also makes clear that the Commission may also consider whether there was a substantial prospect of success at the time the application was made. In addition, it is not appropriate to come to a conclusion that an application was made without reasonable cause if a successful outcome depends upon the resolution of an arguable point of law.

[45] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) also makes clear at [171] that what is to considered “unreasonable” will depend on all of the circumstances, and it is only ever intended that costs be ordered where there is clear evidence of unreasonable conduct.

[46] The Full Bench also emphasised in the decision in Wright v Australian Customs Service 28 that any decision to make an award of costs is only to be made with extreme caution, and based on an assessment of the facts apparent to the applicant. It continues to state at [32]:

“We reiterate that, in our view, in considering whether the requisite conclusion should be drawn, the Commission should proceed with exceptional caution and only draw that conclusion where, on all the materials before the member, the substantive application is manifestly untenable or groundless. Where, on those materials, there is a real issue of fact to be determined and that issue is relevant to the resolution of the substantive application, it would be unlikely that a conclusion could be formed that the application has ‘‘no reasonable prospect of success at arbitration’’. 29

[47] In regard to the application made under s.401(1) the Act makes clear that cost orders can be made against lawyers or paid agents when they have been granted permission to appear under s.596. The sub section continues to set out the circumstances in which this can occur. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) also provides at [1611]:

“1611. These provisions are designed to deter lawyers and paid agents from encouraging others to bring speculative unfair dismissal claims, particularly claims they know have no reasonable prospects of success, or to unreasonably encourage a party to defend a claim or make a jurisdictional argument where there is no prospect of the argument succeeding.” 30

[48] I have endeavoured to apply the approach of these authorities to the determination of this matter.

[49] The decision handed down by the Commission on 19 June 2017 dealt with the jurisdictional objection raised by Bank Australia, being that Ms Raven was not a person protected from unfair dismissal as she had not completed the six month minimum employment period required by s.382. Both parties acknowledge that the completion date of this minimum employment period was 2 April 2017, given Ms Raven was first employed on 3 October 2016. It was therefore necessary for Ms Raven to be able to establish she was terminated after the completion of this minimum employment period in order to be able to pursue an unfair dismissal application.

[50] In the decision handed down on 19 June last year the Commission came to the following conclusion after reviewing what had occurred and Ms Raven’s explanations in response:

“[36] However, I am not satisfied that these provide a satisfactory explanation for what occurred, and her actions were instead consistent with a person who has been told on 29 March that their employment had been terminated with immediate effect.” 31

[51] The Commission then continued to speculate in the following terms:

“[37] Her actions in attending at the Bank on the morning of Monday, 4 April, after having been absent on the previous Thursday and Friday, can perhaps also be explained in the context of a person who is endeavouring to ensure that they have completed the minimum employment period prior to their termination taking effect. However, regardless of these considerations, I am satisfied in conclusion that the evidence establishes that Ms Raven was told in the meeting on 29 March, and clearly understood at the time, that her employment had been terminated with immediate effect.” 32

[52] As indicated, this extract from the earlier decision can be described as speculation about why Ms Raven might have acted as she did, rather than being a definitive finding about why she acted in that way. I am satisfied that if the Commission was of the view that Ms Raven’s actions were solely designed to ensure she was a person who had completed the minimum employment period, when she was clearly aware that she had not – if her actions were nothing more than a contrivance designed to achieve this end – then it would likely be appropriate for a costs order to be made. Her actions in those circumstances could be said to be unreasonable in that she had initiated and pursued an unfair dismissal application when she was clearly aware she was not a person who had completed the minimum employment period, and was therefore not a person protected from unfair dismissal. In those circumstances it should also have been readily apparent to her that her application had no reasonable prospects of success.

[53] However, while not ruling out this explanation for her actions there are other much canvassed circumstances involved in this matter, which leave open the possibility of another explanation being available for why she acted as she did. These circumstances have been referred to at length in this decision, and in the previous decision handed down on 19 June last year. They are briefly referred to again now.

•  On 28 March last year Ms Raven was asked by Mr Ben Smith, a Regional Manager with Bank Australia to whom she reported, to attend a meeting on the following day. It does appear that she was told the meeting was to involve a discussion about performance issues, and she could bring a support person if she wanted, however, no mention was made of the fact that one possible outcome of the meeting could be termination of her employment. As a consequence she did not consider it necessary to bring a support person. Ms Samantha Kleyn, a People & Culture Business Partner with Bank Australia, also attended.

• 

•  Australia’s evidence is that Ms Raven was then told at the conclusion of the 20 minute meeting that her employment was terminated with immediate effect. Ms Raven obviously has a different view about what she was told but, nevertheless, it then appears that both Mr Smith and Ms Kleyn simply got up and left the meeting. There was no discussion about the return of the Bank’s property and, in particular, the return of the keys to the Branch where Ms Raven was the Branch Manager. There also appears to be to have been no discussion about how she would depart from the premises, or any of the other arrangements that might normally be expected to be put in place in conjunction with termination of a relatively senior employee.

•  On the following Monday Ms Raven was then able to gain access to the secure area of the Bank, although she acknowledges that she was not able to access the computer system. She claims that this was not unusual, given past problems with the system. She was then involved in a further discussion with Mr Smith, but no reference was made to her employment having been terminated. However, Ms Raven does acknowledge that Mr Smith asked what she was doing, but she took this to be an enquiry about her health, given that a medical certificate had been delivered to the Bank on her behalf by her partner on the previous Friday indicating she would likely be off work for a period of time. Ms Raven then left the Bank because she again claimed to be feeling unwell.

•  Ms Raven did not then receive the correspondence confirming her employment had been terminated until 5 April 2017, being seven days after Bank Australia says her termination took effect. A statement detailing an amount previously deposited into her Bank account was also received on the same day.

[54] As indicated, Ms Raven’s actions could be viewed, on the one hand, as a contrivance designed to ensure she was able to present as a person who had completed the minimum employment period. However, the various circumstances referred to above also provide scope to support the explanation she provides for why she acted as she did, and why she then decided to make an unfair dismissal application. She claims to have been confused about what she was told in the meeting on 29 March 2017, and understood she was being provided with a further period of one month in which to improve her performance, or then face the possibility of her employment being terminated. She claims that her confusion and uncertainty was accentuated by the fact she was not feeling well at the time, which was subsequently confirmed by the medical certificate provided on her behalf. She also points to the other actions of Bank Australia which were not consistent with her employment being terminated with immediate effect. There was no attempt made to have her return the keys to the Branch at the conclusion of the meeting on 29 March 2017. She was also not provided with a letter of termination until 5 April, in circumstances where she understood her contract of employment required she could only be terminated in writing, and had also received advice from her representative that written confirmation was required.

[55] The possibility of this confusion arising could have been avoided if things had been done differently. Ms Raven could have been informed in advance of the meeting on 29 March 2017 that termination of her employment was a possible outcome. In those circumstances she might have decided to attend with a support person. In addition, at the conclusion of a meeting in which an employee’s employment has been terminated it would normally be expected that there would be some discussion about the arrangements that would follow as a consequence of that decision. This would normally include discussion about return of any company property including, in particular, the return of keys to the premises. However, this does not appear to have occurred. It seems extraordinary in circumstances where Bank Australia claims Ms Raven’s employment was terminated with immediate effect in the meeting on 29 March 2017 that she was still able to leave the premises on that day with the keys to the Bank still in her possession.

[56] It would also be expected that there would normally be some discussion about other arrangements, including payment of any outstanding entitlements, and the provision of a statement detailing those entitlements. It would often be expected that written notice of termination would also be provided at the same time. None of this appears to have occurred in this case.

[57] It again seems unusual, to say the least, that Ms Raven was then able to access the secure area of the Bank on the following Monday. It is acknowledged that she did so in conjunction with other employees, however, this seems strange in circumstances where the Bank claims her employment was terminated with immediate effect five days earlier.

[58] I am satisfied, in conclusion, that in all the circumstances it is possible that Ms Raven was either genuinely uncertain, or perhaps genuinely mistaken, about what was the outcome of the meeting on 29 March 2017, and whether her employment had been terminated at that time. This situation was compounded by the fact that she did not receive written confirmation of her termination until seven days after this time, in circumstances where she understood her employment could only be terminated by her being provided with written confirmation of that fact.

[59] The Commission is required, in conclusion, to decide whether Ms Raven acted unreasonably, or whether it should have been apparent to her that her application had no reasonable prospect of success. This assessment is to be carried out objectively and on the basis of what a reasonable person would have believed. The Commission should also exercise extreme caution in deciding whether an application has no reasonable prospect of success, and only come to this conclusion in circumstances where the application is manifestly untenable or groundless, or so lacking in merit or substance to not be reasonably arguable.

Conclusion

[60] I am satisfied, in conclusion, that the circumstances that have been described as “discrepancies” in terms of the actions by Bank Australia are sufficient to create some doubt about the actual date of Ms Raven’s termination so that it is not appropriate to conclude on an objective basis that her application was so lacking in merit or substance as to not be reasonably arguable. It follows that I am not satisfied that it is appropriate to exercise the discretion available to the Commission to make either of the cost orders sought in regard to Ms Raven.

[61] The final cost application is directed at Mr Rochfort. The evidence indicates that he provided advice to Ms Raven after having regard to the circumstances set out in this decision. However, his evidence indicates the advice he provided to his client was also based, in particular, on the circumstances surrounding the letter of termination provided to her. He was of the view that Bank Australia’s actions in terminating Ms Raven without providing a letter of termination were in breach of s.117 of the Act. He was also of the view that the letter of termination, dated 30 March 2017 but not received by Ms Raven until 7 April 2017, could not have retrospective effect. He also submits the letter could have been provided to her at the conclusion of the meeting on 29 March 2017, or then emailed to her, if the Bank wanted the letter to be received by her at an earlier point in time. He submits, in conclusion, that because the letter was not received by Ms Raven until 5 April 2017 her termination did not take effect until that time.

[62] As indicated, Mr Rochfort also relies on the other circumstances that have already been referred to in submitting that he did not act unreasonably, and did not encourage Ms Raven to make application when it should have been reasonably apparent to him that the application had no reasonable prospect of success. He also submits, for the same reasons, that he did not acted unreasonably in advising his client to reject the subsequent offers of settlement made by Bank Australia.

[63] The decision handed down on 19 June last year made reference to the claims by Mr Rochfort that s.117 of the Act requires an employer to provide notice of termination in writing. It indicated that even if the present matter involved a breach of that obligation then the employer would potentially be exposed to a civil penalty. The breach would not act to change the date of termination. Nevertheless, I am satisfied that there was an arguable point of law being raised in this context, given all the circumstances involved in this matter. For this reason I am not satisfied that it is appropriate to exercise the discretion available to the Commission to make a costs order in respect of Mr Rochfort. The present applications are accordingly dismissed.

COMMISSIONER

Appearances:

P Rochfort for the Applicant.

N Chadwick for the Respondent.

Hearing details:

2017.

Melbourne (by telephone):

August 23.

<PR5100033>

 1   Raven v Bank Australia Limited T/A Bank Australia [2017] FWC 3289.

 2 Ibid at [40].

 3   Fair Work Act 2009 (Cth) s 400A.

 4   Fair Work Act 2009 (Cth) s 401.

 5   Fair Work Act 2009 (Cth) s 611.

 6   Raven v Bank Australia Limited T/A Bank Australia [2017] FWC 3289 at [37].

 7   [2015] FWC 458.

 8   [2014] FWCFB 810.

 9 Ibid at [30].

 10   Transcript at PN513.

 11   Transcript at PN517.

 12   [2017] FWCFB 3891.

 13   [2017] FWCFB 3891 at [36].

 14   [2013] FWCFB 8960.

 15   Veal v Sundance Marine P/L atf Sundance Unit Trust t/a Sundance Marine; Sundance Marine P/L atf Sundance Unit Trust t/a Sundance Marine v Veal[2013] FWCFB 8960 at [15].

 16 Submissions of Applicant re cost application, dated 27 July 2017 at [7].

 17 Submissions of Applicant re cost application, dated 27 July 2017 at [8].

 18 Submissions of Applicant re cost application, dated 27 July 2017 at [12].

 19   [2014] FWCFB 810.

 20 Ibid at [16].

 21 Ibid at [18].

 22 Ibid at [21].

 23 Ibid at [26].

 24 Ibid at [27].

 25 Ibid at [30].

 26   [2013] FWCFB 1811.

 27   Ibid at [19]-[20].

 28 (2002) 120 IR 346.

 29 Ibid, 358 at [32].

 30   Fair Work Bill 2008 (Cth) cl 1611.

 31   Raven v Bank Australia Limited T/A Bank Australia [2017] FWC 3289 at [36].

 32 Ibid at [37].

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