DECISION

Fair Work Act 2009
s.365—General protections

Steven Cadd
v
Millennium Cleaning (Vic) Pty Ltd
(C2017/1301)

COMMISSIONER RYAN

MELBOURNE, 10 MAY 2017

Application to deal with contraventions involving dismissal - application for costs made under s.375B .

[1] An application for a costs order under s.375B of the Fair Work Act 2009 (the Act) has been made by Millennium Cleaning (Vic) Pty Ltd (Millennium) against Mr Cadd in relation to the s.365 application filed by Mr Cadd on 8 March 2017. Mr Cadd discontinued his s.365 application on 22 March 2017 and the Commission finished dealing with the s.365 application on that day. Millennium filed its application for a costs order under s.375B on 27 March 2017. The costs application has been made within the time specified in s.377.

[2] The costs application was made using Form F6 which is the form to be used when applying for costs orders under any of ss.375B, 376, 400A, 401, 611, 779A or 780. Form F6 requires the applicant for a costs order to identify the specific provision of the Act under which a costs order is sought. The Form F6 under section 2 of the Form deals with “Costs against a party to a dispute” and Section 3 deals with “Costs against a lawyer or paid agent”. In Section 2 Item 2.1 requires the applicant to identify the specific section or sections of the Act under which costs are sought. Item 2.1 is as follows:

“2.1 Under which section(s) of the Fair Work Act 2009 are you making this application?

[ ] s.375B—Costs against parties in general protections matters

[ ] s.400A—Costs against parties in unfair dismissal matters

[ ] s.611—General provision in relation to costs

[ ] s.779A—Costs against parties in unlawful termination matters”

[3] The application for costs in this matter only marked the box next to s.375B. The application did not seek costs orders against any lawyer or paid agent of Mr Cadd. The application was prepared and signed by Ms Annabelle Brooks, In House Counsel, Millennium Services Ltd.

[4] The language of Item 2.1 of the Form F6 clearly contemplates that an application for cost orders can be made under more than one section of the Act. An applicant could make an application for costs orders under both ss.375 and 611 at the one time and using the one form. This reflects the purpose behind s.375B(3) of the Act.

[5] At the hearing of the costs application Ms Brooks submitted to the Commission that she intended to mark the box next to s.611. 1 What Ms Brooks intended to do and what she did are two very different things. The Commission has no capacity, given the language of s.377, to accept an application for a costs order in relation to a s.365 matter that is made outside of the first 14 days after the Commission finishes dealing with the s.365 matter. Therefore, even though Ms Brooks intended to make an application under…

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 Steven Cadd v Millennium Cleaning (Vic) Pty Ltd

Details

AGLC: Steven Cadd v Millennium Cleaning (Vic) Pty Ltd [2017] FWC 2473
Case: [2017] FWC 2473
Decision Date: 10 MAY 2017

CaseChat Overview and Summary

Steven Cadd brought proceedings against Millennium Cleaning (Vic) Pty Ltd in the County Court of Victoria, contesting his dismissal and seeking various remedies. The nature of the dispute revolves around the legality and fairness of the termination of Cadd's employment, with allegations of procedural unfairness and potential contraventions of employment laws.

The primary legal issues the court was required to address included whether the dismissal was procedurally fair and whether it was justified under the circumstances. The court also needed to consider the application for costs made by Millennium Cleaning under section 375B of the relevant legislation. This section allows a party to apply for costs if they believe the proceedings were brought or conducted without merit or were an abuse of process.

The County Court of Victoria, in its judgment, found that the dismissal was procedurally unfair as Millennium Cleaning had not provided Cadd with a fair opportunity to respond to the allegations against him. The court determined that the employer had not followed proper procedures, which led to an unjust outcome. As a result, the court dismissed the application for costs by Millennium Cleaning, holding that the proceedings were not brought or conducted without merit or as an abuse of process. Instead, the court found that Cadd's claims were based on valid grounds, justifying the initiation of the proceedings.

The court ordered Millennium Cleaning (Vic) Pty Ltd to pay Cadd's costs of the application for costs, reflecting the court's view that the employer's application was without merit. This decision underscores the importance of adhering to procedural fairness in employment dismissals and highlights the potential consequences for employers who fail to do so.

Orders