Ron D'Souza v Classic Home and Garage Innovations Pty Ltd as trustee for the Steven Nicholls Family Trust T/A Classic Patios and Pools

[2014] FWC 5004

[2014] FWC 5004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ron D’Souza
v
Classic Home & Garage Innovations Pty Ltd as trustee for the Steven Nicholls Family Trust T/A Classic Patios and Pools
(U2013/15409)

DEPUTY PRESIDENT MCCARTHY PERTH, 31 JULY 2014

Application for relief from unfair dismissal - application for cost order.

[1] On 11 July 2014, I issued a decision ([2014] FWC 4526) dismissing an application for Unfair Dismissal (the unfair dismissal application) by Mr Ron D’Souza (the Applicant).

[2] On 15 July 2014, Classic Home & Garage Innovations Pty Ltd as trustee for the Steven Nicholls Family Trust T/A Classic Patios and Pools [the Respondent, (although the Applicant for the issue that is the subject of this decision)] notified my Chambers that they requested costs of this action, (clearly meaning the costs they incurred in defending the Application) of the amount of $3300 (the Costs Application).

[3] On 17 July 2014, I issued Directions requesting an outline of grounds in support of the Costs Application. I attached to those Directions an extract of the relevant section s.611 of the Fair Work Act 2009 (the FW Act). I also attached an extract from a relevant Full Bench decision considering the application of s.611 of the FW Act (ACI Operations v Cook ([2012] FWAFB 3292]).

[4] The Respondent provided their grounds in the form of a letter on 18 July 2014. For the purposes of my consideration of the Costs Application. I have waived the requirement for the Respondent to lodge a formal application and regard the email and letter as an application.

[5] There were a number of grounds put forward by the Respondent is support of costs being awarded against the Applicant. The grounds included:

● As the Respondent employs less than 15 salary employees the Applicant’s claim had little or no prospect of success.
● The Applicant’s claim had little, or no, chance of succeeding as the Respondent was not legally bound to comply with the stringent provisions under the unfair dismissal laws, as compared to Companies employing 15 or more staff.
● The Respondent provided an independent witness confirming the Applicant had been warned on various occasions prior to termination of employment.
● The Respondent provided (2) written complaints from consumers confirming their statements of derelict of duty by the Applicant.
● The Applicant offered no written evidence, changed his original claim (2) times after receiving written evidence from the Respondent, lied in his initial claim that he did not commence employment until January 2014, when in fact written proof from his current employer was provided confirming he was reemployed by the 29 November 2013.

[6] It seems to me that the Respondent has misunderstood what occurred during the proceedings before me and why those proceedings were necessary.

[7] Firstly, the Applicant initially disputed the number of employees employed by the Respondent. That initially disputed fact was a significant reason why I conducted a conference/hearing to determine the matter, as I am required to do by operation of s.397 of the FW Act. It was only after a fulsome explanation and analysis of the employees during the conference that it became clear, and to his credit accepted by the Applicant, that there were indeed less than 15 employees at the time of the Applicant’s dismissal.

[8] Secondly, it is not the case that the Respondent was not legally bound to comply with what they assert are more stringent provisions for employers employing more than 15 employees. What the FW Act allows is that if a small business employer complies with the Small Business Fair Dismissal Code (the Code) then an application for unfair dismissal must be dismissed. However I found that the Respondent did not comply with the Code (see paragraph [26] of my decision).

[9] The Respondent also asserted that the Applicant was dismissed for serious misconduct, an allegation that I found against the Respondent both during the conference/hearing and in my decision (see paragraph [6] of my decision). Indeed, as I noted in the decision the Respondent had no criticism of the Applicant’s honesty, or his capacity as salesman, and there was no hint of any accusation of abuse, or threatening behaviour, or any conduct whatsoever that one could even remotely be regard as justifying an allegation of serious misconduct. I also made the observation during proceedings that the application for unfair dismissal may not have been made at all had the Respondent approached the concern about the Applicant’s performance as unsatisfactory conduct rather than serious misconduct.

[10] I am not satisfied that any of the grounds for the awarding of costs against the Applicant have sufficient merit. The grounds put forward are such that I did not consider it necessary to request the Applicant for the unfair dismissal application to respond.

[11] The application for costs is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Respondent, 18 July 2014.

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