Shyamkumar Panchal v Torrens Transit Services Pty Ltd

[2015] FWC 288

[2015] FWC 288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shyamkumar Panchal
v
Torrens Transit Services Pty Ltd
(U2014/7165)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 JANUARY 2015

Application for relief from unfair dismissal - costs application by Torrens Transit Services Pty Ltd - s.400A - consideration of settlement offers.

[1] On 14 November 2014 I issued a decision 1 and order2 in which I dismissed Mr Panchal’s application, made under s.394 of the Fair Work Act 2009 (the FW Act), against Torrens Transit Services Pty Ltd (Torrens).

[2] On 28 November 2014 Torrens lodged an application for costs. Whilst the application was made through the Fair Work Commission (FWC) Form F6, it did not specify the particular section of the FW Act that was relied upon. Because the costs application is made against Mr Panchal and because of the content of earlier correspondence between the parties, I have taken it that this costs application is made pursuant to s.400A. That section sates:

“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.”

[3] Notwithstanding this, I also note that s.611 states:

“611 Costs

(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).”

[4] Both parties have provided written submissions relative to the costs issue. I have summarised their respective positions below.

[5] Torrens asserts that, between the lodgement of Mr Panchal's application and the commencement of the hearing of the matter on 13 October 2014, it put a number of settlement offers to Mr Panchal.

[6] Offers were initially put in the course of conciliation proceedings on 6 August 2014. On that occasion Torrens offered 9.1 weeks pay with the termination of Mr Panchal’s employment to be regarded as a redundancy.

[7] That offer was formally repeated in correspondence of 29 September 2014 on the basis that Torrens foreshadowed that its offer and position may be relied upon in a future costs application.

[8] Torrens further advised that, in response to an invitation from me at the commencement of the proceedings on 13 October 2014, the parties engaged in further settlement discussions. In these discussions Mr Panchal increased the settlement demand he had put earlier from 17 to 20 weeks pay. In these discussions Torrens reiterated its offer of 9.1 weeks pay.

[9] Torrens asserted that it had made clear to Mr Panchal that it considered that it had the capacity to respond to and defend the claim made against it. Further, Torrens asserted that Mr Panchal had acted unreasonably in failing to properly assess his prospects of success.

[10] Torrens asserted that, given the following findings made in my decision:

“3. Accordingly it is the case that on each occasion that Mr Panchal rejected the offers put to him he knew not only that he deliberately drove at the pedestrians to intimidate them, but that the had said as much to Mr Lamont (paragraph 21 of the decision); and that he had confided the same to Mr Hobson-Campbell.

4. In determining the reasonableness or otherwise of Mr Panchal's actions, this Commission must focus on the facts apparent to him at each of the times when he rejected the offers put: Polynol Plastics (Aust) Pty Ltd, Print T 2112 [31].

5. Mr Panchal cannot be said to have acted reasonably in rejecting each and every one of the Respondent's offers when he knew that, on the occasion of each rejection, the Respondent's case that he had acted deliberately in order to intimidate was right: Blagojevch v A.I.R.C. (supra) at [17-18] and [35-36].” 3

[11] Mr Panchal's submissions were made on his behalf by his representative at the hearing, Mr Clarke and by his union, the TWU. Those submissions relied on the Full Bench decision in Brazilian Butterfly v Charalambous. 4 Mr Panchal contended that a proper application of the principles in that, and later decisions, meant that his conduct in refusing to settle the application on the terms offered should not be regarded as unreasonable for the purposes of s.400A.

[12] Mr Panchal asserted that the position he had adopted was reasonable and reflected his belief that “he had been unfairly dismissed for what he saw as an error of judgement regarding the injury to the woman pedestrian involved”. 5 Mr Panchal asserted that this reflected the information available to him about the case to be run by Torrens and that his strong preference for reinstatement was consistent with the provisions of the FW Act.

[13] Finally, Mr Panchal asserted that the FWC should take into account the costs and disadvantages he had already incurred as a consequence of his dismissal and pursuit of the application.”

Findings

[14] I have based my conclusions in this matter on the approach adopted in Polynol Plastics (Aust) Pty Ltd v Moss, 6 Blagojevch v AIRC7 and Brazilian Butterfly Pty Ltd v Charalambous.8 Notwithstanding legislative changes that have occurred since those decisions were made, I consider those approaches remain consistent with the current provisions of s.400A. Consequently I have reviewed whether the approach adopted by Mr Panchal should be considered reasonable at each of the occasions at which Torrens made settlement offers.

[15] I do not consider Mr Panchal’s commencement of the unfair dismissal application should be regarded as an unreasonable act. As at the time the first settlement proposal was put to him on 6 August 2014, Mr Panchal was aware of the position being maintained by Ms Yeend, a bus passenger, and by Mr Singh and his cousin. Those positions supported his contention that the passenger ran across in front of his bus. Whilst the CCTV film which had, by that time been viewed by both Mr Panchal’s union representative and Mr Clarke, should have cast doubt on Mr Panchal’s version of the events, information which confirms the unreasonableness of Mr Panchal’s position in that context is not before me.

[16] At the time the 8 August 2014 and 29 September 2014 settlement proposals were made I am not satisfied that Mr Panchal was aware that Torrens had evidence that indicated that he had admitted that his forward motion of the bus was a deliberate action directed at stopping pedestrians from crossing in front of the bus. In any event, I am satisfied that Mr Gonsalves’ evidence about the extent to which this allegation was raised at the disciplinary meeting meant that Mr Panchal could reasonably expect to be able to challenge that Torrens position in this respect.

[17] Additionally, to the extent that Mr Panchal had information relative to the treatment of other drivers involved in bus driving accidents, I consider that his rejection of the settlement proposals up to the discussions on 13 October, clearly should not be described as unreasonable acts or omissions. In each instance I am satisfied that Mr Panchal was able to make a considered position on the material before him.

[18] Mr Panchal’s position at the discussions on 13 October 2014 is more difficult to describe as reasonable. In those discussions Mr Panchal increased his settlement demands from the level they were previously at. At that point he would have been aware of all of the evidence proposed to be relied upon by Torrens. He would also have been in a position to carefully consider the CCTV film and assess the extent to which this was difficult to reconcile with his evidence. I have noted that at that time Mr Panchal would also have been aware that he faced further court action associated with a traffic infringement charge arising from the accident. In this last respect, I have concluded that Mr Panchal could reasonably have sought to pursue the matter in order to assist him in relation to that traffic charge.

[19] I have concluded, on balance, that Mr Panchal’s actions and his refusal of the Torrens settlement offer should not be regarded as unreasonable. In essence, he had an arguable case, with some supporting evidence. Additionally, information about what advice was provided to him by his representative is not before me. I have taken into account the extent to which my decision involved an assessment of all of the evidence before me.

[20] In reaching this conclusion I have not taken the costs and disadvantages incurred by Mr Panchal arising from his dismissal and pursuit of this action. I have simply concluded that whilst settlement of the application on the terms offered would clearly have been a better decision in retrospect, I do not consider that the position Mr Panchal adopted on each occasion that settlement offers were put to him should be described as unreasonable for the purposes of s.400A. The Torrens' costs application is refused accordingly.

 1   [2014] FWC 7848

 2   PR557407

 3   Respondent’s Submissions in Reply, 7 January 2015, paras 3 - 5

 4   PR968915

 5   Submission of 19 December 2014, para 8(c)

 6   Print T2112

 7 [2000] FCA 483

 8   PR968915

Printed by authority of the Commonwealth Government Printer

<Price code A, PR559989>