Ryman v Thrash Pty Ltd - [2016] FWCFB 1638

[2016] FWCFB 1638

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Jeremy Ryman
v
Thrash Pty Ltd t/a Wisharts Automotive Services
(C2015/4591)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BISSETT	SYDNEY, 4 APRIL 2016

Appeal against decision [2015] FWC 3942 of Commissioner Cambridge at Sydney on 12

June 2015 in matter number U2015/33.

[1] On 5 January 2015 Mr Jeremy Ryman made an application for an unfair dismissal

remedy under s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination of his

employment with Thrash Pty Ltd trading as “Wisharts Automotive Services” (Wisharts). In a

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decision issued on 12 June 2015

(First Decision), Commissioner Cambridge dismissed this

application on the basis that Wisharts was a small business to which the Small Business Fair

Dismissal Code (Code) applied, that Mr Ryman’s dismissal was a summary dismissal, and

that the dismissal accorded with the summary dismissal requirements of the Code. Mr Ryman

then applied for permission to appeal and appealed the Commissioner’s decision. In an ex

tempore decision issued on 25 August 2015, this Full Bench granted permission to appeal.

After receiving written submissions in relation to the full appeal, we issued a decision on 18

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December 2015

(Appeal Decision) in which we upheld the appeal, quashed the First

Decision, and re-determined Mr Ryman’s unfair dismissal remedy application by dismissing

it.

[2] Wisharts has now made an application for Mr Ryman to pay its costs of the hearing

before the Commissioner and on appeal. The application is made pursuant to s.611(2) of the

FW Act. Section 611(1) establishes a general rule that parties in proceedings before the

Commission must bear their own costs. Section 611(2) operates as an exception to this

general rule, and provides:

(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:

[2016] FWCFB 1638

(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.

[3] The relevant principles concerning the interpretation and application of s.611(2)(a)

were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health

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and Wellbeing

and may be summarised as follows:

 An application is made vexatiously when the predominant motive or purpose of
the applicant is to harass or embarrass the other party or to gain a collateral
advantage.
 An application is not made without reasonable cause simply because the
application did not succeed.
 Whether an application is made without reasonable cause may be tested by
asking, on the facts apparent to the applicant at the time the application was made,
whether there was no substantial prospect of…

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.

Continue reading Ryman v Thrash Pty Ltd

Details

AGLC: Ryman v Thrash Pty Ltd [2016] FWCFB 1638
Case: [2016] FWCFB 1638
Decision Date: 4 April 2016

CaseChat Overview and Summary

In the matter of Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services, the Fair Work Commission Full Bench was tasked with determining an application for costs made by the respondent, Thrash Pty Ltd, pursuant to section 611(2) of the Fair Work Act 2009. The applicant, Jeremy Ryman, had previously appealed a decision of the Commissioner dismissing his application for unfair dismissal remedy. The Full Bench had allowed the appeal, quashed the initial decision, and re-determined the unfair dismissal application, dismissing it. Thrash Pty Ltd now sought an order for Ryman to pay its costs of the hearing and appeal, arguing that Ryman's application and appeal were both vexatious and made without reasonable cause or prospect of success.

The legal issues before the Full Bench were whether Ryman's application and appeal were vexatious or made without reasonable cause or prospect of success under section 611(2)(a) and (b) of the Fair Work Act. The principles guiding these determinations were that an application is vexatious if the predominant motive is to harass or gain a collateral advantage, it is not without reasonable cause merely because it did not succeed, and it should have been reasonably apparent that it had no reasonable prospect of success only if it was manifestly groundless or so obviously untenable that it could not possibly succeed.

The Full Bench found that neither limb of section 611(2) was satisfied. Regarding the first question of the facts of the 19 December 2014 incident, the Commissioner's findings about Ryman's evidence were not considered deliberately fabricated by the Full Bench. As for the second question, Ryman successfully established that the summary dismissal provisions of the Code did not apply, leading to the appeal being upheld. Although Ryman was ultimately unsuccessful in demonstrating that his dismissal was unfair, his case was considered arguable on the merits, particularly since the Full Bench found that Ryman's dismissal was not unfair due to the small size of Wisharts' business. Therefore, the Full Bench concluded that it was not reasonably apparent to Ryman that his application had no reasonable prospect of success.

Accordingly, the Full Bench dismissed Thrash Pty Ltd's application for costs.

Orders