Simon Vita v Downer EDI Mining Pty Ltd

[2015] FWC 2183

[2015] FWC 2183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Vita
v
Downer EDI Mining Pty Ltd
(U2014/5006)

COMMISSIONER WILLIAMS PERTH, 31 MARCH 2015

Application for costs.

[1] This decision concerns an application for costs (the Costs Application) made by Downer EDI Mining Pty Ltd (Downer EDI) against Mr Simon Vita (Mr Vita) pursuant to section 402 for an order for costs under section 400A of the Fair Work Act 2009 (the Act).

[2] The Costs Application is made against Mr Vita on the basis that Downer EDI incurred costs because of an unreasonable act or omission of Mr Vita; namely that Mr Vita failed to attend the hearing in relation to his unfair dismissal application in matter U2014/5006.

[3] Written reasons for the decision 1 in Mr Vita’s unfair dismissal remedy application were issued by the Commission on 12 December 2014. The introductory paragraphs of that decision are set out below and provide the relevant factual basis on which I have determined this costs application.

“Procedural background

[2] This application was made by Mr Vita on 25 February 2014.

[3] Following an unsuccessful conciliation in May 2014 the Commission provided the parties a notice of listing advising that the application was listed for hearing on 24 October 2014. Directions attached to the notice of listing required Mr Vita to file and serve his witness statement(s) and an outline of submissions by 27 August 2014. Mr Vita did not comply with this direction and was sent a reminder letter extending the time to file and serve his materials to 11 September 2014.

[4] On 16 September 2014, after the second deadline had passed, Mr Vita contacted the Commission and requested a further extension to file and serve his written materials. The Commission allowed further time for Mr Vita to file and serve his written materials to 24 September 2014. Mr Vita did not comply with this direction.

[5] Given this history unsurprisingly the respondent made an application under section 399A of the Act for the Commission to dismiss Mr Vita’s application. The Commission heard this application on 27 October 2014. Mr Vita attended the hearing in person. The decision of the Commission on that application was not to immediately dismiss Mr Vita’s application but to direct Mr Vita to file and serve his written materials by 5.00 p.m. Wednesday, 29 November 2014 and that if he failed to comply with this direction the Commission would automatically dismiss his application.

[6] Mr Vita complied with this direction of the Commission and on 29 October 2014 provided an email to the Commission and to the respondent’s representatives which set out in one and a half pages what the Commission took to be his evidence and submissions in this matter.

[7] Consequently on 4 November 2014 a notice of listing was issued advising the parties that Mr Vita’s application was listed for hearing on Wednesday, 10 December 2014 at 10.00 a.m. This notice of listing was emailed and posted to Mr Vita. The respondent in accordance with the directions attached to that notice of listing then filed and served four witness statements and submissions in support of its case.

[8] At the hearing on 10 December 2014 Mr Vita did not appear nor did anybody appear on his behalf. The multiple notice of listing provided to Mr Vita in this matter each stated that all witnesses the parties have filed statements for are required to attend the proceedings. Mr Vita prior to the date and time of hearing did not contact the Commission to indicate there was any reason why he was unable to attend the hearing.

[9] Given the history of this matter and the Commission’s statutory obligations to deal these applications in a manner that is quick and to ensure all parties are given a fair go all around I advised I would proceed to hear and determine the application in the absence of Mr Vita.

[10] Mr Vita’s witness statement and submissions I accepted as evidence to be considered in this matter. I note that Mr Vita was not present to give this evidence under oath or to be cross-examined so accordingly the weight to be given to his evidence is reduced.

[11] The four witnesses for the respondent swore to the correctness of their witness statements under oath or affirmation. I accept their evidence in full as it is not challenged and to the extent that their evidence at any point is inconsistent with Mr Vita’s witness statement I prefer the evidence of the respondent’s witnesses.

[12] At the conclusion of the hearing I gave oral reasons for my decision that the dismissal of Mr Vita was not harsh, unjust or unreasonable. Mr Vita’s dismissal was not unfair and so his application was dismissed. I undertook to provide written reasons for this decision and these are those reasons.”

[4] The Costs Application was served by Downer EDI on Mr Vita by email at the time IT was lodged in the Commission Registry on 17 December 2014.

[5] The Commission separately provided a copy of the Costs Application by email to Mr Vita on 5 February 2015. The covering email addressed Mr Vita and directed him to provide any response to the Costs Application by 26 February 2015 and advised that at that point the Commission’s intention was to decide the Costs Application on the papers without a hearing.

[6] No submission as at the date of this decision has been received from Mr Vita in response to Downer EDI’s Costs Application. I note that Mr Vita has since the time of issuing the decision dismissing his unfair dismissal remedy application twice communicated with my chambers FROM the email address which was used to provide him with a copy of the Costs Application and the request he provide submissions.

[7] In the circumstances in the absence of any submissions on the issue from Mr Vita I will determine the application on the basis of Downer EDI’s submissions alone.

Downer EDI’s submissions

[8] Downer EDI submits that not attending the hearing of the unfair dismissal remedy application was an unreasonable act or omission because Mr Vita gave no indication that he would not attend the hearing scheduled for 10 December 2014 and therefore he did not allow Downer EDI an opportunity to avoid incurring the costs it did to attend the hearing with its witnesses when other arrangements could potentially have been made to minimise the costs involved.

[9] Downer EDI further submits that these acts or omissions were unreasonable because Downer EDI had sought to dismiss the matter twice before, Mr Vita had been given three opportunities to file materials late (conversely this was three opportunities for him to discontinue the matter if he did not intend to pursue it), Downer EDI had made Mr Vita aware that it would incur costs in defending the matter and the Commission had made Mr Vita aware that a party to the matter could seek a costs order under section 400A of the Act.

[10] Specifically

a. On 23 April 2014 Mr Vita failed to comply with directions to notify the Commission if Mr Vita wished to pursue the unfair dismissal application. The letter from the Commission makes clear that an order for costs under section 400A of the Act may be made against parties;

b. On 1 May 2014 Downer EDI filed an application to dismiss Mr Vita’s application under section 399A of the Act for the Commission;

c. On 27 August 2014 Mr Vita failed to file and serve his witness statement(s) and an outline of submissions as per Directions issued by the Commission on 13 May 2014. The Directions makes clear that costs made be made against parties;

d. On 11 September 2014 Mr Vita failed a second time to file and serve his witness statement(s) and an outline of submissions as per the letter sent by the Commission on 4 September 2014;

e. On 16 September 2014, in response to Mr Vita’s failure to file and serve the materials Downer EDI wrote to the Commission and Mr Vita urging the Commission to dismiss the matter. In that correspondence Downer EDI outlines that it will incur significant cost in preparing and bringing the matter to hearing, particularly given Downer EDI’s representative was based in Brisbane and the hearing was to be held in Perth; and

f. On 24 October 2014 a hearing was convened to determine whether to dismiss the matter in which Mr Vita attended. The FWC granted Mr Vita a final extension to serve his evidence.

[11] As a result of the processes outlined above Mr Vita ought to have known that he was required to comply with directions of the Commission, that failure to comply with those directions may give rise to a costs order and that Downer EDI would incur costs in preparing the matter and bringing it to hearing.

[12] It is unknown whether Mr Vita ever intended on attending the hearing.

Costs sought

[13] Downer EDI has limited its claim for costs to those costs incurred by the company representative, Mr Jarrett Goos (Mr Goos), Group Employee Relations Manager, in relation to attendance at the hearing on 10 December 2014 only. These costs relate to:

a. Air travel to Perth from Brisbane – $239.00

b. Two nights’ accommodation (9/12/14 – 10/12/14) - $460.00

c. Taxi fare to, and from, Hotel to Perth airport – $33.64 and $30.08; and

d. Taxi fare to the hearing – $11.10.

[14] The total costs sought are $773.82.

[15] This is a modest claim of the actual costs incurred and does not relate to the costs of returning the four witnesses to Perth from site at Christmas Creek or the wages paid to these employees. Mr Goos’ travel onwards from Perth was to Darwin for work which was not related to this matter and the claim therefore reflects only the basic cost of a one-way Qantas flight from Brisbane to Perth.

[16] Downer EDI submit that Mr Vita caused costs to be incurred, in this instance specifically the costs of the respondent’s representative attending the hearing in Perth, Western Australia, because of his unreasonable act or omission which was:

a. Failing to attend the hearing; and/or

b. Failing to advise Downer EDI of his intention to not attend the hearing; and/or

c. Failing to discontinue the matter.

The facts

[17] The relevant facts for the purposes of this costs application are the factual history of events leading up the hearing on 10 December 2014 of Mr Vita’s unfair dismissal remedy. These facts are set out in paragraph [3] above.

Consideration

[18] Section 400A of the Act sets out the circumstances in which the Commission may make an order for costs against a party:

“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.”

[19] Given the circumstances of this case I am satisfied that Mr Vita by not attending the hearing of his unfair dismissal remedy application and omitting to provide any advice to Downer EDI in advance of the hearing that he would not be attending unnecessarily caused Downer EDI to incur costs. Had Mr Vita advised Downer EDI with appropriate notice in advance that he would not attend and not participate in the hearing of his unfair dismissal remedy application then Downer EDI could have elected to defend the application with their representative Mr Goos attending by videoconference or telephone from Brisbane. Instead Mr Goos understandably travelled from Brisbane to Perth in order to be present at the hearing in person in the expectation that Mr Vita would also be present at the hearing. Mr Vita’s non-attendance made this trip unnecessary and in this way caused costs to be incurred because of his unreasonable act or omission.

[20] I will now issue an order for the costs sought of $773.82 to be paid by Mr Vita to Downer EDI within 21 days.

COMMISSIONER

 1   [2014] FWC 8962.

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