Ray Chandler v Helensvale Community Golf Club

[2017] FWC 3650

[2017] FWC 3650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ray Chandler
v
Helensvale Community Golf Club
(U2017/428)

COMMISSIONER RIORDAN SYDNEY, 13 JULY 2017

Application for an unfair dismissal remedy.

[1] Mr Ray Chandler applied for an unfair dismissal against Helensvale Community Golf Club (‘Helensvale’) on 12 January 2017.

[2] The matter was set down for jurisdictional hearing on 27 April 2017. Mr Chandler failed to attend the Commission for the hearing.

[3] On 25 May 2017, I published a decision dismissing Mr Chandler’s application in accordance with section 587 of the Fair Work Act 2009 (Cth) (‘the Act’).

[4] On 26 May 2017, Helensvale made application seeking costs against Mr Chandler in accordance with section 400A of the Act.

[5] On 5 June 2017, Mr Chandler was given 7 days to file a submission in relation to the costs application. Mr Chandler has failed to provide a submission.

[6] Helensvale were represented in this matter by its Corporate Compliance Manager, Mr Alex Baxter. Mr Baxter resides in Townsville. Mr Baxter travelled to Brisbane for the hearing on 27 April 2017, incurring costs of $779.74.

Power to award costs

[7] The relevant sections of the Act pertaining to this matter are:-

“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.

“402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.”

[8] Any decision to award costs to a party by the Commission is a discretionary decision. Section 611 of the Act states:

“611Costs

(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).”

Consideration

[9] Mr Chandler claimed that he had been employed by Helensvale between January 2016 and 22 December 2016. It is not disputed that Mr Chandler also resigned on 26 October 2016. The terms associated with his re-engagement are not before the Commission. Mr Chandler was also disputing that

• He was a casual employee



• Helensvale was not a small business



• His termination was not a bona fide genuine redundancy.

[10] Whilst Mr Chandler may have had an arguable case in relation to some of his claims, it should have been evident to Mr Chandler that success in this case was going to be difficult to achieve.

[11] However, Helensvale made the decision to utilise an employee who was based in Townsville. Helensvale knew that there would be travel costs associated with transporting Mr Baxter to Brisbane for the hearing. Helensvale were clearly prepared to incur these costs to have Mr Baxter attend as their representative.

Conclusion

[12] The conduct of Mr Chandler in this matter cannot be condoned. Mr Chandler has shown a level of disrespect and discourtesy to both the Commission and Helensvale. His claim that he had limited access to a computer and therefore was not aware of the hearing date is difficult to believe.

[13] However, the decision taken by Helensvale to utilise the services of Mr Baxter shows a preparedness to spend an amount of money in order to achieve a preferred result. I note that the quantum sought by Helensvale is a modest amount and consists of $732.37 for a return airfare and $46.37 for parking.

[14] I am not satisfied that the circumstances in this case are sufficiently compelling to overcome the legislative presumption that each party bears their own costs.

[15] The costs application by Helensvale is dismissed.

COMMISSIONER

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