Twin Towns Employment Enterprises Ltd T/A Job Futures S.E.Q v Ms Deborah Bates
[2010] FWA 3756
•15 JUNE 2010
[2010] FWA 3756 |
|
DECISION |
Workplace Relations Act 1996
Rule 39 - Security for the payment of costs
Twin Towns Employment Enterprises Ltd T/A Job Futures S.E.Q.
v
Ms Deborah Bates
(U2009/12977)
COMMISSIONER SPENCER | BRISBANE, 15 JUNE 2010 |
Application for Security for the Payment of Costs in relation to U2009/12662.
Introduction
[1] Twin Towns Employment Services T/A Job Futures S.E.Q. (the Costs Applicant) has made an Application for Security of Costs pursuant to Rule 39 and s.658 of the Workplace Relations Act 1996, in relation to the Application by Ms Deborah Bates (the Costs Respondent) pursuant to s.643, that her termination of employment was harsh, unjust or unreasonable. The Costs Respondent is represented by Mr Michael Felle of Jobs Australia Limited and the Costs Applicant is represented by Ms Theresa Chase of Queensland Working Women’s Service.
[2] The originating matter has proceeded to a conciliation conference, but was unable to be resolved. I am satisfied conciliation was exhausted. A Motion to Dismiss the Application for Want of Jurisdiction was filed by the Costs Applicant on the basis that the Application was frivolous, vexatious or lacking in substance.
Legislation
[3] This determination deals with an application for security for costs. The relevant legislation is set out at s.658 and Rule 39, as follows:
658 Commission may order payment of costs
(1) If the Commission is satisfied:
(a) that a person (first party):
(i) made an application under section 643; or
(ii) began proceedings relating to an application; and
(b) the first party did so in circumstances where it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success in relation to the application or proceeding;
the Commission may, on application under this section by the other party to the application or proceeding, make an order for costs against the first party.
(2) If the Commission is satisfied that a party (first party) to a proceeding relating to an application under section 643 has acted unreasonably in failing:
(a) to discontinue the proceeding; or
(b) to agree to terms of settlement that could lead to the discontinuance of the application;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first party.
(3) If the Commission is satisfied:
(a) that a party (first party) to a proceeding relating to an application made under section 643 caused costs to be incurred by the other party to the proceeding; and
(b) that the first party caused the costs to be incurred because of the first party’s unreasonable act or omission in connection with the conduct of the proceeding;
the Commission may, on an application by the other party under this section, make an order for costs against the first party.
...
Rule 39 Security for the Payment of costs
“(1) The Commission may, on application, order a party who made an application under section 643 of the Act, or who began proceedings relating to an application under section 643 of the Act, to give security for the payment of costs that may be awarded against him or her.
Note The Commission will not ordinarily make such an order before the conclusion of conciliation proceedings.
(2) An application to give security for the payment of costs must be made in accordance with Form R35.
(3) The security must be of such amount, and given at such time and in such manner and form, as the Commission directs.
(4) The Commission may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.
(5) Without prejudice to other powers the Commission may exercise, if the Commission orders a party to provide security for costs, it may order that the application under section 643 of the Act or the proceedings begun in relation to the application under section 643, as the case may be, be adjourned until security is provided or adjourned indefinitely.
(6) The powers of the Commission under this rule may not be exercised by a member who has dealt, or is dealing, with the application under section 643 of the Act or proceedings relating to the application under section 643, unless directed by:
(a) the President; or
(b) another Presidential Member nominated, in writing, by the President.
Note For examples of proceedings under section 643 of the Act, see subsection 658 (10) of the Act.”
[4] The matter has been allocated to the Commission as currently constituted.
[5] The Costs Applicant made the Application for Security for Costs pursuant to s.658 on the basis that the originating application is manifestly deficient as the Applicant’s position was not terminated.
[6] The Costs Applicant stated two conciliation conferences were held to try and resolve the matter without success. The Costs Applicant has stated that the Costs Respondent’s employment was also not made redundant.
[7] The Costs Respondent’s Application was filed out of time by 77 days, and accordingly an extension of time application will need to be considered further to this jurisdictional matter as to whether there is a termination at the initiative of the employer. The Costs Applicant also stated that the Application was frivolous, vexatious and lacking in substance.
[8] The Costs Applicant stated:
“…
The originating applicationis manifestly deficient in that Ms Bates employment has not been terminated.
This position is not only evidenced by the conduct of the parties in relation to the administration of on-going employment arrangements (provision of medical certificates, payment of sick leave, payment of annual leave), this position is supported by the declaration of the Fair Work Ombudsman dated 16 July 2009 that “…Ms Bates employment with Twin Towers Employment Enterprises Pty Ltd trading as Job Futures SEQ has not been terminated at this time…” (see paragraph 3, Attachment No.1).
Further and in the alternative, should Ms Bates employment be terminated as she claims from 26 June 2009 then the s.643 application to the Commission lodged on 6 October 2009 is 102 days after the claimed termination and 81 days after the 21 days application lodgement requirements under the Act.
Even if Ms Bates asserts she was actively pursuing this matter with the Fair Work Ombudsman, the Ombudsman replied on or about 16 July 2009 and Ms Bates lodged her s.643 application on 6 October 2009 some 81 days after this Ombudsman response.
There are no valid reasons outlined by Ms Bates to support the granting of an extension of time of the originating application in accordance with the Brodie-Hanns principles.
These various grounds have already been raised in the Notices to Dismiss and Notice of Employer’s Appearance lodged by Twin Towers Employment Enterprises Pty Ltd on 16 October 2009 in response to the originating application.
In the various Notices lodged for Twin Towers Employment Enterprises Pty Ltd on 16 October 2009, the Conciliation of the originating application was opposed.
…”
[9] The Costs Applicant first sought a security for the payment of costs of $2,000. However, on the basis that the Costs Applicant parties travelled to attend the second conciliation conference and that the Costs Respondent declined the offer made at the conference, the Costs Applicant increased the amount sought to $4,000 to cover the costs already incurred. It must be emphasised that the Costs Applicant travelled to the conference and incurred the associated costs of their own volition; telephone conference facilities were available. However, it is acknowledged that Mr Felle stated he aimed to resolve the matter by his attendance in person and to avoid the further costs for all, but particularly (as he stated) for the Costs Applicant associated with the two jurisdictional matters and potentially the arbitration.
[10] The Costs Respondent refuted the Costs Applicant’s submission that her employment had not been terminated. The costs Respondent’s submission in part was,
“…
The grounds for the Application include the claim that the ‘Employee’s employment has not been terminated’. On 29 May 2009 the Respondent was advised in writing that “…the company has been going through significant restructuring and change as a result of the Job Services Australia tender results”…and…”This letter is to inform you and give you one month’s notice of transfer to our Southport Office”…and…”you will be working three days per week as a Disability Network Employment Consultant and two days a week as a Skilling Queenslanders for Work Employment Consultant.”
The position of Community Services Co-ordinator at Tweed/Murwillumbah, being the position held by the Respondent since her employment with the Applicant on 10 April 2003, was dissolved due to the service not successfully tendering for a Job Services Australia program. The Respondent submits that her employment was terminated as of 26 June 2009 as the position she was employed to perform no longer existed.
The Application states the employee “has been transferred in her employment but has not accepted the transfer”. On 29 May 2009, Ms Bates received an email from Marc Davies, Operations Manager, advising “Job Futures SEQ does have the capacity to transfer employees between work locations subject to reasonable notice. Should you wish to refuse to abide by this lawful instruction of your employer you do so at your peril.” At no time has the Applicant demonstrated the source of this ‘capacity’. Even if it had, the Respondent submits the complete dissolution of the position of Community Services Co-ordinator, Tweed and Murwillumbah is not a situation of ‘transfer’ but a clear termination.
If the Commission finds that the employer does have such capacity to transfer, the Respondent submits that the positions to which she was to be ‘transferred’ were of significantly lower status, had no managerial duties, involved lower levels of responsibility and different duties as compared with the position of Community Services Co-ordinator. Attachment ‘A’ to these submissions is the Job Description for the Community Services Co-ordinator.
The position the Respondent was advised to ‘transfer’ to was not comparable with her position as Community Services Co-ordinator.
The Respondent submits she was entitled to severance pay under Clause 12.1.2 of the Community Employment, Training and Support Services Award 1999 (‘the Award’) as the employer did not obtain acceptable alternative employment for the Respondent.”
[11] In relation to the Fair Work Ombudsman (FWO) Complaint, the Costs Respondent stated she was not privy to the information the Costs Applicant may have provided to the FWO, and therefore no weight should be attributed to such.
“The FWO decision appears to have been based on the fact that the Applicant had refused to formally terminate the Respondent. The FWO decision did not appear to consider the validity of classing a ‘transfer’ as a termination or whether the ‘transfer’ was in fact a situation of termination of employment resulting in redundancy.”
[12] In addition, she made reference to email correspondence from Robert Evans, Fair Work Inspector with the FWO dated 9 November 2009, which states that:
“The FWO did not look at the legitimacy or comparability of the alternate position offered. The reason for this is the FWO does not have the authority to make a determination if a position can be determined as a reasonable alternative, this can only be determined by a Commissioner.”
[13] She also stated the actions she had taken since the termination to contest the matter, would be relevant to the extension of time application.
[14] The Costs Applicant originally sought $2,000.00 and increased the amount to $4,000.00 for expenses incurred by travelling to the second conciliation.
[15] I consider the increased costs were incurred by their own volition by deciding to attend in person. However, I intend to maintain the amount at $4,000.00 as a reasonable amount in consideration of the future potential litigation associated with the application, given the jurisdictional matters to be dealt with. These of course may be able to be dealt with on the papers.
[16] In making the assessment, I have been cognisant that the Costs Respondent sought the privacy of her financial affairs and have not required the Costs Respondent’s to disclose her affidavit of financial status to the Costs Applicant. I do not consider the Costs Applicant has been prejudiced by this non-disclosure.
[17] However, I have taken into account that the Costs Applicants’ amended amount of security sought, the Costs Respondents financial position, the potential matters to be considered at jurisdiction and arbitration and taken a conservative approach, as is permitted, in determining the amount of security required to progress the matter. An order for security is not required to provide complete indemnity. 1
[18] In accordance with the aforementioned reasons and having regard to all of the material provided, I consider an amount of $4,000.00 appropriate in the circumstances. An order to that effect has also been issued (PR997217).
COMMISSIONER
1 Scott v Australian Broadcasting Corporation (PR972610), per SDP Lacy, at [40].)
Printed by authority of the Commonwealth Government Printer
<Price code C, PR997049>
0
0
0