Sandra Brown v Accensi Pty Ltd

[2013] FWC 6458

[2013] FWC 6458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Brown
v
Accensi Pty Ltd
(U2012/15098)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 SEPTEMBER 2013

Application for Costs - s.611 of the Fair Work Act 2009 - Application dismissed..

[1] Ms Sandra Brown lodged an unfair dismissal application alleging that Accensi Pty Ltd (Accensi) had unfairly dismissed her. Accensi denied dismissing Ms Brown.

[2] That issue was never determined because Ms Brown, apart from participating in a telephone conciliation, took no further steps to pursue her application and on 29 April 2013 Commissioner Jones dismissed her application.

[3] Accensi now seeks orders that Ms Brown pay its costs of $4752.37. Apart from an email sent in opposition to the application for costs, Ms Brown did not participate in the proceedings.

Background

[4] After an unsuccessful conciliation, Ms Brown was directed to file material in support of her application. This material was due by 19 March 2013. Ms Brown sent an email on 17 March 2013 advising of the names of her witnesses and that she was suffering stress. Lawyers for Accensi then wrote to Ms Brown about her non-compliance with the Fair Work Commission’s (the Commission) directions.

[5] On 26 March 2013, Ms Brown advised the Commission verbally that she did not understand the directions and that she may seek an adjournment on medical grounds.

[6] Ms Brown did not participate in the non-compliance hearing held on 27 March 2013. Mr Davy, a legal practitioner, was given permission to appear by Commissioner Jones.

[7] Commissioner Jones vacated the orders requiring Accensi to file material and on 5 April 2013 Ms Brown was asked to provide a medical certificate to support her request for her unfair dismissal application to be adjourned indefinitely. Ms Brown did not provide a medical certificate.

[8] A further non-compliance hearing was held on 18 April 2013 and again Ms Brown did not participate. On 18 April 2013, Ms Brown was advised by letter that unless she provided the Commission with an explanation of her failure to file her submissions and witness statements and to attend the non-compliance hearing her application would be dismissed. Ms Brown did not respond to that correspondence.

[9] Section 611 of the Fair Work Act 2009 provides the Commission with the power to award costs in certain circumstances:

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA 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: FWA can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

[10] Accensi relied upon Ms Brown’s non compliance with the Commission’s directions and non attendance at the non compliance hearings to support its claim that the application had no reasonable prospects of success. It did not submit that the application was made frivolously, vexatiously or without reasonable cause. It submitted that Ms Brown’s conduct showed that Ms Brown’s claim was untenable and groundless and therefore it must have been reasonably apparent to her that the application lacked any reasonable prospect of success.

[11] It submitted that Ms Brown’s conduct in the proceeding was the direct and sole cause of the legal costs Accensi had to pay including the costs of the costs application.

[12] In her response to the application for costs, Ms Brown submitted that she did not pursue her claim for medical reasons. She alleged that she was suffering from chemical poisoning which had caused her illness. No medical certificates were provided to support these claims.

[13] There was a dispute between the parties about whether Ms Brown resigned or her employment was terminated. No evidence was called by Accensi to support its claim that Ms Brown was not dismissed.

[14] Accensi did not complete the employer response form as required by the Fair Work Australia Rules 2010, as it stated in an email that it had not terminated Ms Brown’s employment. It advised that Ms Brown had not been dismissed and, if she had changed her mind, they would take her back. Accensi did not indicate on the form that it wished to raise a jurisdictional objection to Ms Brown’s application.

[15] I am not able to conclude on the basis of the text message sent by Ms Brown to an unnamed staff member that she resigned her employment. It is clear that whatever interpretation Accensi put on her text, when it advised her that they considered it a resignation, Ms Brown immediately advised them that this was an unlawful dismissal because she still had medical certificates.

[16] Ms Brown’s application was filed prior to the amendments to the Fair Work Act 2009 which commenced on 1 January 2013 and applied to dismissals that occurred after that date. The amendments provide the Commission with the power to award costs if a party caused costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the matter. 1 However prior to 1 January 2013 no such power existed. A failure to comply with directions without more cannot lead to an order for costs.

[17] Accensi relied upon the decision of Commissioner Jones in Stanley v QBE Management Services Pty Limited 2where Commissioner Jones decided in part that the application had no reasonable prospects of success. However, in that matter the Commissioner had before her evidence on which she could make findings of fact. In this matter I do not have any evidence before me which would enable me to make any findings of fact. Further I am not willing to infer from Ms Brown’s conduct that she knew that her case had no reasonable prospects of success.

[18] I am unable to conclude on the material before me that Ms Brown’s failure to comply with directions and to attend telephone hearings conducted by the Commission means that Ms Brown’s application had no reasonable prospects of success. Therefore the application for costs is dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance by the Applicant.

Mr Daniel Ryan for Accensi Pty Ltd.

Hearing details:

2013

Melbourne and Brisbane by video-link

June 21

 1   See section 400A of the Act

 2   [2012] FWA 7165

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