REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiffany Causer
v
Refined Learning Pty Ltd T/A ABC Refined Learning
(U2021/1955)

DEPUTY PRESIDENT BOYCE

SYDNEY, 7 SEPTEMBER 2021

Application for costs under ss.400A(1) and 611(2)(b) of the Fair Work Act 2009 – Costs Respondent claimed Costs Applicant in unfair dismissal proceedings was a “volunteer” and not an “employee” - Costs Respondent claimed it had followed the Small Business Fair Dismissal Code prior to and/or at the time it dismissed the Costs Applicant – Costs Respondent implied that Costs Applicant was not “dismissed” at the Costs Respondent’s initiative – all jurisdictional objections without basis in fact or law – Commission satisfied Costs Respondent’s responses to unfair dismissal application “had no reasonable prospects of success” and gave rise to an “unreasonable act or omission by the Costs Respondent in connection with the conduct or continuation of the [jurisdictional objections raised]” – discretion to award costs against the Costs Respondent enlivened - costs order made.

Overview

[1] This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise, make additions to, and/or amend same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

[2] On 28 July 2021, the Costs Applicant made an application for costs pursuant to s.400A(1) and s.611(2)(b) of the Fair Work Act 2009 (Act). The Costs Application follows from the Decision made by me in Tiffany Causer v Refined Learning Pty Ltd T/A ABC Refined Learning [2021] FWC 4357 (26 July 2021) (UD proceedings).

[3] In the UD proceedings, I determined that the Applicant was unfairly dismissed and made an Order in respect of the payment of compensation to the Applicant [PR731695] (14 July 2021).

[4] Directions were issued on 29 July 2021 for the filing of submissions with respect to the Costs Application. The Costs Applicant filed submissions along with a witness statement of Mr Garry Dircks dated 5 August 2021. Mr Dircks’ witness statement was tendered without objection at the hearing (Exhibit GD1).

[5] The Costs Respondent did not comply with the Directions issued. My Associate wrote to Ms Wen of the Costs Respondent on 13 August 2021:

“Dear Ms Wen,

Re: U2021/1955 - Causer, Tiffany v Refined Learning Pty Ltd T/A ABC Refined Learning

I refer to the matter above.

Background

On 29 July 2021, the Fair Work Commission issued Directions in this matter.

Orders [2] of those Directions read as follows:

[2] By 4.00pm AEDT on Thursday, 12 August 2021, the Costs Respondent must file in the Commission and serve on the Costs Applicant an outline of submissions, witness statements, and any documents in respect of the…

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: [2021] FWC 5382
Decision Date: 7 SEPTEMBER 2021

CaseChat Overview and Summary

Tiffany Causer brought an application for costs against Refined Learning Pty Ltd T/A ABC Refined Learning in the Fair Work Commission. The applicant alleged she was unfairly dismissed and sought costs under sections 400A(1) and 611(2)(b) of the Fair Work Act 2009. The respondent argued that the applicant was a volunteer rather than an employee and that it had followed the Small Business Fair Dismissal Code in dismissing her. Additionally, the respondent implied that the dismissal was not at its initiative.

The court had to determine whether the respondent’s jurisdictional objections were without basis in fact or law and if the respondent’s responses to the unfair dismissal application had no reasonable prospects of success. It also had to consider whether the respondent's actions constituted an unreasonable act or omission in connection with the conduct of the jurisdictional objections. The court found that all the jurisdictional objections were without basis and that the respondent’s responses to the unfair dismissal application indeed had no reasonable prospects of success. This unreasonable act or omission by the respondent in connection with the conduct of the jurisdictional objections led the court to exercise its discretion to award costs against the respondent.

The court concluded that the respondent's jurisdictional objections were without basis in fact or law and that its responses to the unfair dismissal application had no reasonable prospects of success. It found that the respondent's actions constituted an unreasonable act or omission in connection with the conduct of the jurisdictional objections. The court therefore ordered the respondent to pay the applicant's costs.

Orders