Shegasen Govender v Nacco Materials Handling Group Pty Ltd
[2011] FWA 2488
•20 MAY 2011
[2011] FWA 2488 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Shegasen Govender
v
NACCO Materials Handling Group Pty Ltd
(U2010/13190)
COMMISSIONER MCKENNA | SYDNEY, 20 MAY 2011 |
Unfair Dismissal - costs application
[1] On 11 October 2010, Shegasen Govender filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”) concerning the termination of his employment by NACCO Materials Handling Group Pty Ltd. The dismissal had arisen against the background of NACCO’s conclusion that Mr Govender had engaged in serious misconduct stemming initially from certain dealings with a third party and subsequent, related compounding issues. The application form filed by Mr Govender contended the dismissal was unfair for reasons going to whether there was a valid reason for the dismissal and whether he had been afforded procedural fairness. Contrary to Mr Govender’s contentions, NACCO contended in its response to the application there was a valid reason for the dismissal and Mr Govender had been afforded procedural fairness.
[2] The matter was listed for conciliation on 2 November 2010 before a Fair Work Australia conciliator. As the matter did not resolve through conciliation, directions were issued concerning the filing and service of materials. Further to the directions, the parties, through their respective solicitors then acting for them, filed and served materials in anticipation of an arbitration conference/hearing listed for 9 February 2011. The matter was then allocated to me for hearing.
[3] On 2 February 2011, Mr Govender’s solicitors filed a notice of ceasing to act.
[4] On 7 February 2011, my Associate received a voicemail message from Mr Govender stating he had sent an email to Fair Work Australia in the preceding week with a view to withdrawing his application, albeit there was no record of any such emailed communication on the file. Further to the advice in the voicemail, and following unsuccessful attempts to contact Mr Govender by telephone, a notice of discontinuance was sent to him by email on 8 February 2011 with advice it should be filed and served if he wished to discontinue the application - which Mr Govender then attended to. Given the filing of the notice of discontinuance, I file-marked the application as discontinued and caused notices to be issued vacating the hearing that had been scheduled for 9 February 2011.
[5] On 21 February 2011, NACCO filed an application seeking an order for costs. Directions were issued by me concerning the costs application on 4 March 2011, after an initial listing concerning directions had been vacated at NACCO’s request. Mr Govender did not attend the rescheduled mention, as he had foreshadowed, and directions were issued in his absence.
[6] The parties subsequently filed materials concerning the costs application. NACCO also sought a listing before Fair Work Australia of its costs application (as against Fair Work Australia deciding the costs application on the papers). Further to NACCO’s request, the matter was listed on 21 April 2011. That day, NACCO was represented by William Pfleger, Managing Director and Mr Govender appeared on his own behalf.
[7] The provisions of the Act relevant to the costs application made by NACCO are as follows:
“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 ofthe 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.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[8] Hence, the ordinary statutory position, as provided by s.611 of the Act, is that parties bear their own costs in relation to matters such as unfair dismissal applications. Fair Work Australia may, however, order Mr Govender to bear some or all of NACCO’s costs if satisfied Mr Govender made his application for an unfair dismissal remedy without reasonable cause; or if Fair Work Australia is satisfied that it should have been reasonably apparent to Mr Govender that his application for an unfair dismissal remedy had no reasonable prospect of success.
[9] As to the costs application, the short grounds on which NACCO relied in its application read as follows:
“1. Applicant made the claim without reasonable cause as:
- A proper process was followed
- Adequate time was provided for response by the Applicant during all meetings and time was taken to explore and consider any matter put forward by the Applicant
- Applicant attended 3 separate meeting [sic] and was asked to reply to the Respondent’s concerns
- Applicant was informed at each meetings [sic] of the severity of the situation and of the Respondent’s concerns relative to his conduct
- The Applicant was informed of his right to have a representative present at all meetings
2. It was reasonably apparent that the Applicant had no reasonable prospect of success as the termination was reasonable and justified.”
[10] NACCO’s outline of submissions elaborated matters identified in these grounds, as did the submissions of Mr Pfleger in the proceedings on 21 April 2011. Referenced to matters for which NACCO’s evidence filed in support of the substantive application had contended, NACCO submitted, among other matters:
- Mr Govender’s allegations about unfair process and unfair dismissal had no basis;
- NACCO dismissed Mr Govender as a result of serious breaches of the employment contract and policies and procedures (including those concerned with conflict of interest), failure to follow a reasonable and lawful direction, and dishonesty during the investigative process;
- the processes adopted by NACCO to consider the matters forming the basis of the three principal allegations against Mr Govender (inappropriately offering his services to a third party, providing dishonest responses and failing to comply with an instruction not to contact that third party) were procedurally fair;
- the dismissal was reasonable and justified, having regard to the allegations concerning Mr Govender and the matters relied on by NACCO, for which its filed evidence contended, as to its conclusions concerning those allegations.
[11] NACCO submitted Mr Govender made the application without reasonable cause when consideration was given to the “proper process” followed by NACCO as well as to matters relevant to the responses provided by him, including allegedly untruthful responses, in the investigative process (and considering also matters later raised in filed evidence referring, for the first time, to charity-related, altruistic purposes concerning his contact with the third party).
[12] NACCO further submitted it was reasonably apparent that Mr Govender had no reasonable prospect of success as the termination of employment was reasonable and justified. In so submitting, NACCO referred to matters said to have arisen from the parties’ participation in the conciliation proceedings, being matters which I do not consider appropriately ought be considered as relevant to the determination of the costs application given the ordinarily understood nature of parties’ participation in conciliation proceedings.
[13] As to other matters relied on in support of its costs application, NACCO referred to matters such as Mr Govender’s reliance on his interpretation of conflicts of interest relevant to his contract of employment and what were submitted to be belated, invented evidentiary justifications for his conduct. NACCO submitted that various matters attested to in Mr Govender’s filed evidence ought not, for a range of reasons described in NACCO’s filed evidence and submissions, be accepted.
[14] NACCO submitted that its costs associated with the application should be awarded, as Mr Govender “both made the claim without reasonable cause, and it was reasonable [sic] apparent that the Applicant had no reasonable prospects of success as the termination was reasonable and justified”. The costs thereto were identified in the evidence of Amy McCudden, Senior Human Resources Advisor.
[15] Mr Govender opposed the costs application and, in so doing, relied, without any relevant elaboration, on the matters addressed in an outline of submissions he filed pursuant to the directions issued on 4 March 2011.
[16] Mr Govender submitted the “default position” in s.611(1) of the Act is that parties must bear their own costs, subject to the exceptions contemplated in s.611(2). His submissions noted the costs application was not being advanced against the background of any alleged vexatiousness, within the meaning of s.611(2) of the Act. In Mr Govender’s submission, a very high standard was involved in making out an application for a costs order based on the criteria in s.611(2) of the Act. This is particularly so, Mr Govender further submitted, when there had been no hearing of the substantive application and, hence, no findings made on the disputed evidence. Absent a determination of such matters, Mr Govender submitted a costs order could be made only if it was clear there was no evidence before Fair Work Australia which would have been capable of justifying a commencement of the proceedings and that “certainly [was] not the case in this instance”.
[17] Mr Govender submitted that Fair Work Australia should have regard to the material in support of the substantive application, particularly matters addressed in parts of his witness statement. He further submitted that, considering such material (in respect of which, he noted, no adverse findings have been made), there clearly was a proper basis for the commencement of proceedings and, if the evidence in his statement was made out, the proceedings equally clearly had a reasonable prospect of success.
[18] Mr Govender submitted that the substantive application was jurisdictionally competent, as the application met the relevant requirements for commencing an application under the Act.
[19] Mr Govender submitted that NACCO’s submissions in support of the application contended that serious misconduct was at the core of the case. Mr Govender submitted that “interestingly” the respondent’s outline of submissions dated 20 January 2011, concerning the substantive application, addressed various issues going to alleged misconduct, but there was no suggestion the proceedings were without reasonable cause or had no reasonable prospect of success. Mr Govender’s written submissions then appear to contain some typographical errors or omissions, rendering the content difficult to understand. However, as best as I can discern, the submissions seem to suggest that inferences were to be drawn from the fact that NACCO did not earlier contend that the substantive application was, in effect, bound to fail for reasons involving commencement without reasonable cause or for having no reasonable prospect of success.
[20] In conclusion, Mr Govender submitted there is no material before Fair Work Australia which would suggest the requirements of s.611(2) of the Act had been satisfied and, in those circumstances, NACCO’s application for costs should be dismissed.
[21] Although s.402(b) of the Act makes it clear that costs may be ordered where there has been a discontinuance, the consideration of this costs application, given the nature of the grounds advanced by NACCO, presents its own difficulties in circumstances where Mr Govender’s application for an unfair dismissal remedy was discontinued prior to hearing. The matters relied on by NACCO in support of its costs application referred, in part, to the materials it initially advanced in support of the substantive application in contending the dismissal was “justified”. It may be noted that Mr Pfleger examined Mr Govender (as well as Ms McCudden) as to some matters, but little if anything of relevance to the determination of the costs application fell from such examination. If anything, Mr Govender’s oral evidence had a tendency to support a view that certain matters as to the substantive merits of the case as they may relate to a consideration of the costs application cannot be resolved or, at least, cannot, in my view, be satisfactorily resolved. Mr Govender held to his view about certain matters when examined on 21 April 2011 (and, by way of further example, NACCO did not adduce any witness statement from the individual who was the focus of the allegations concerning the alleged misconduct by Mr Govender).
[22] NACCO’s case in support of the costs application was advanced, again in part, on the basis of contentions that its evidence and submissions as to the substantive application ought be accepted in preference to those that likewise had been advanced by Mr Govender - with a corollary being that Fair Work Australia effectively ought conclude the dismissal was not harsh, unjust or unreasonable; and, as a further corollary, Fair Work Australia thereby also ought be satisfied Mr Govender made the application without reasonable cause and/or that it should have been reasonably apparent to Mr Govender that his application had no reasonable prospect of success. As to this, on a consideration of the matters advanced by Mr Govender and NACCO, it seems to me the issues could be characterised as arguable. I put matters no higher than that when the substantive application brought by Mr Govender seeking an unfair dismissal remedy was discontinued prior to hearing and, thus, the determination of whether Mr Govender should have had an unfair dismissal remedy on the basis the dismissal was harsh, unjust or unreasonable, or whether that application should have been dismissed, strictly is no longer before me - although it may be accepted that overlapping considerations may well arise. Only the costs application now remains and that application turns on its particular considerations as specified in s.611(2) of the Act, being considerations which, although there may be an overlap, differ from those arising for consideration in determining whether a dismissal was harsh, unjust or unreasonable.
[23] While neither party referred to any authorities as to the meaning of phrases such as “without reasonable cause” and “no reasonable prospect of success” the costs application nonetheless arises for consideration against the background of authorities as to the import of such phrases, considered in the context of the matters here arising. Authorities as to these familiar types of formulations are legion but, given no legal argument was put as to principles arising, need not be exampled or revisited in this decision. It may suffice, for present purposes, to say that if Mr Govender had pressed his application for an unfair dismissal remedy but did not, in the end, establish to the satisfaction of Fair Work Australia he had been harshly, unjustly or unreasonably dismissed such a finding would not, in and of itself, constitute a basis for granting a costs order pursuant to NACCO’s application given the particular matters arising for consideration under s.611(2) of the Act. However, NACCO’s costs application seems to be premised, in large part, on the proposition that the dismissal would not have been, or should not have been, considered to be harsh, unjust or unreasonable and that the applicant should have been aware of that. I also note in passing, and respectfully agree with, the views expressed by Whelan C in Darcy v Megan Fitzgerald & Associates Pty Ltd[2009] FWA 1547 at [28] that where the facts of the case and the applicable law have not been tested in a hearing, great care needs to be exercised in concluding on a costs application that a party instituted proceedings without reasonable cause or that it should have been reasonably apparent that the application had no reasonable prospect of success.
[24] Fair Work Australia may order that Mr Govender bear some or all of NACCO’s costs if satisfied that he made the application for an unfair dismissal remedy without reasonable cause or if satisfied that it should have been reasonably apparent to him that his application for an unfair dismissal remedy had no reasonable prospect of success. All things considered, I have not been satisfied as to the criteria in s.611(2) of the Act such as would enliven the discretionary power as to the making of any costs order. As such, I have concluded NACCO’s application filed on 21 February 2011 for an order for costs should be dismissed. An order dismissing the costs application has been issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Applicant on the costs application:
Mr W Pfleger, Managing Director, for NACCO Materials Handling Group Pty Ltd
Respondent to the costs application:
Mr S Govender in person
Hearing details:
Sydney
2011
21 April
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