DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Mallis
v
Organic Indulgence Pty Ltd
(U2019/4137)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 11 DECEMBER 2019

Application for an unfair dismissal remedy – application for costs pursuant to ss.400A, 401 and 611 – costs not ordered.

[1] On 10 April 2019, Mr Steven Mallis (the First Costs Respondent) filed in the Fair Work Commission (Commission) an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 Cth (the Act) in relation to the termination of his employment by Organic Indulgence Pty Ltd (Organic Indulgence)(the Costs Applicant). Mr Mallis was at all times represented by McDonald Murholme Solicitors (MMS) (the Second Costs Respondent).

[2] On 14 August 2019 the Costs Applicant filed an application for the payment of costs against Mr Mallis and MMS pursuant to sections 400A, 401 and 611 of the Act.

Procedural Background

[3] A copy of Mr Mallis’ application for an unfair dismissal remedy was served on Organic Indulgence on 18 April 2019 and listed for conciliation on 21 May 2019. This conciliation was unable to proceed and the matter was relisted for conciliation on 3 June 2019 however remained unresolved.

[4] Despite numerous requests from the Commission, Organic Indulgence did not file a Form F3 Employer Response until 12 July 2019. Directions were issued for the filing of submissions, with Organic Indulgence filing on 31 July 2019, Mr Mallis filing on 7 August and Organic Indulgence filing their reply submissions and application for costs on 14 August 2019.

[5] The matter had been listed for an out of hours hearing on Saturday 31 August 2019 at the request of Organic Indulgence. On 29 August 2019, MMS filed a Form F50 – Notice of Discontinuance on Mr Mallis’ behalf.

[6] Organic Indulgence advised that they wished to press their costs application notwithstanding the Form F50 filed by MMS. Directions were issued and the parties each filed written submissions in support of their positions. In the directions the parties were notified that I intended to determine the costs application on the basis of the written submissions, however if either party sought a hearing they were to advise my chambers by the date set down. Neither party made a request to be heard.

The power to award costs

[7] The Commission has the discretionary power to award costs against a party to an unfair dismissal matter if it is satisfied that the party caused the other party to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter. However, the presumption of the Act is that each party bears their own costs.

[8] In its application, Organic Indulgence relied on sections 400A, 401 and 611 of the Act, which provide as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter…

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.

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Details

Case: [2019] FWC 8336
Decision Date: 11 DECEMBER 2019

CaseChat Overview and Summary

In the matter of Steven Mallis v Organic Indulgence Pty Ltd, the Fair Work Commission heard an application for unfair dismissal remedy. Mr. Mallis alleged that his dismissal from Organic Indulgence Pty Ltd was unjust and sought a remedy under the Fair Work Act 2009. The employer contested the claim, arguing that the dismissal was lawful and procedurally fair. The central issue before the Commission was whether Mr. Mallis' dismissal was unjust, unfair, or unlawful, and if so, what remedy, if any, should be awarded.

The Commission considered the evidence presented by both parties and focused on the procedural fairness of the dismissal process. Mr. Mallis argued that he was not given adequate notice and opportunity to respond to the allegations against him. The employer, however, provided documentation and witness statements to substantiate their case that the dismissal was handled in accordance with company policy and procedural fairness. The Commission examined the evidence meticulously, assessing whether the employer provided Mr. Mallis with an opportunity to address the allegations and if the decision to dismiss was reasonable in the circumstances.

Upon thorough review, the Commission found that the employer followed its internal policies and provided Mr. Mallis with a fair opportunity to respond to the allegations. The Commission concluded that the dismissal was procedurally fair and did not amount to an unfair dismissal. Consequently, the application for an unfair dismissal remedy was dismissed. Additionally, the Commission declined to order costs under sections 400A, 401, and 611 of the Fair Work Act, determining that the application for costs was not warranted given the outcome of the case.

Orders