Tyrone Taiepa v Shinsen Taijutsu Pty. Ltd T/A MMA247

[2018] FWC 1358

[2018] FWC 1358

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tyrone Taiepa
v
Shinsen Taijutsu Pty. Ltd T/A MMA247
(U2017/9842)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 MARCH 2018

Application for costs - costs claimed for representation by consultant engaged to prepare response material and submissions - meaning of “representation” and “paid agent”.

[1] Mr Tyrone Taiepa made an unfair dismissal application but it was dismissed by Commissioner Bissett for reason of his failure to comply with directions and his non-attendance at a hearing held by the Commission. The decision 1 and order2 dismissing Mr Taiepa’s application were published by the Fair Work Commission (the Commission) on 1 December 2017.

[2] On 6 December 2017, Shinsen Taijutsu Pty. Ltd T/A MMA247 (Shinsen) filed and served an application to the Commission for an order for costs against Mr Taiepa (the costs application) pursuant to ss.400A and 611 of the Fair Work Act 2009 (the Act). The costs application was validly made, having been filed within 14 days after the decision and order of Commissioner Bissett. 3

[3] The general position in relation to unfair dismissal applications is that each party bears its own costs in proceedings before the Commission. 4 The costs application against Mr Taiepa is made under both s.400A and s.611 of the Act. Sections 400A and 611 of the FW Act provide for exceptions to that general rule, in certain circumstances.

Background to the costs application

[4] In making his application for a remedy for unfair dismissal pursuant to s.394 of the Act, Mr Taiepa alleged he was notified of his dismissal by Shinsen on 22 August 2017, with it taking effect the same day.

[5] On 18 September 2017, Shinsen filed its Form F3—Employer Response to Unfair Dismissal Application (Form F3). Shinsen raised jurisdictional objection that there was no dismissal because Mr Taiepa had voluntarily resigned his employment. It further asserted it was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC).

[6] The matter was initially listed for conciliation on 5 October 2017, however it did not take place because Mr Taiepa could not be contacted at the relevant time. Mr Taiepa sent an email to the Commission later that day requesting that his application proceed, stating that he missed the conciliator’s calls due to technical issues with his mobile phone. He provided alternative dates and times in which he requested that conciliation proceed.

[7] In response, the Commission attempted to telephone Mr Taiepa to advise that the times provided were not suitable for a further conciliation, however there was again no answer and a voicemail message was left seeking a return call. There was no response from Mr Taiepa to these attempts so the matter was referred for arbitration.

[8] On 23 October 2017, a Notice of Listing was sent to the parties requiring:

•  Shinsen to file and serve its Outline of Argument in relation to its jurisdictional objections, any Statements of Evidence and its Document List by no later than noon on 6 November 2017;

•  Mr Taiepa to file and serve his material responding by no later than noon on 13 November 2017; and

•  Shinsen to file and serve any material in reply by 20 November 2017.

[9] The matter being listed for a Jurisdiction and Arbitration Conference/Hearing on 18 December 2017.

[10] Shinsen filed and served its most of its material on 1 November 2017 and one final piece of documentation was filed and served on 8 November 2017.

[11] On 10 November 2017, the Commission sent a Short Message Service (SMS) reminder to Mr Taipea that his material was due to be filed by noon on Monday 13 November 2017. In the afternoon of 13 November 2017, the Commission sent Mr Taiepa an email advising that in the absence of submissions or an extension request being received, his matter would be listed for a non-compliance hearing on 17 November 2017.

[12] On 15 November 2017, Shinsen called the Commission to enquire as to whether submissions had been received from Mr Taiepa. A Commission staff member advised that as it did not appear that Mr Taiepa had filed any material nor requested an extension to do so, the matter would proceed to a non-compliance hearing. Later that day, the Commission made two attempts to contact Mr Taiepa via telephone, however there was no answer and voicemails messages were left requesting a return call. On 16 November 2017, a non-compliance hearing was listed by the Commission.

[13] The non-compliance hearing proceeded before Commissioner Bissett on 17 November 2017. Mr Taiepa did not attend. Shinsen made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Taiepa had failed to comply with a direction of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Shinsen’s oral application. Correspondence was then sent to Mr Taiepa informing him of Shinsen’s s.399A application. Mr Taiepa was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 24 November 2017.

[14] This correspondence was sent via email and post to Mr Taiepa. Mr Taiepa did not file a response within the required time or in the period after it so Commissioner Bissett considered the material before the Commission and dismissed the unfair dismissal application on the basis that Mr Taiepa unreasonably failed to both comply with directions to file material and attend the non-compliance hearing on 17 November 2017.

[15] On 29 November 2017, the Commission had received a telephone call from Shinsen and was informed that Shinsen intended to complete and submit a Form F6 - Application for costs (Form F6).

[16] On 6 December 2017, the Commission received an email from Ms Amanda Wallace of Innovative Bookkeeping Studio (Innovative) which attached a Form F6- Application for Costs signed by Mr Valere Kolker, Director of Shinsen. This email stated “[P]lease find attached our F6 Application Form for Costs Recovery relating to the matter… [T]hese documents are lodged for and on behalf of Shinsen Taijutsu Pty Ltd T/A MMA247”.

Basis for costs application

[17] Shinsen seeks costs against Mr Taiepa pursuant to ss.400A and 611 of the Act, on the grounds that, following Mr Taiepa’s filing the unfair dismissal application:

a) It was present for the telephone conciliation on 5 October 2017 but Mr Taiepa did not attend, was not contactable and, after the event, gave the explanation that his telephone was broken;

b) It complied with the requirements to file its material but Mr Taiepa did not file and serve his materials, as required, by the compliance date of 13 November 2017; and

c) It attended the non-compliance hearing on 17 November 2017 but Mr Taiepa did not.

[18] No further particulars in relation to these grounds were provided, however an itemised schedule of costs was submitted by Shinsen which were said to have arisen from “[A] consultant who was engaged to assist in the preparation and responses and to ensure all matters requested by the Fair Work Commission were addressed and attended to, in the time frames specified”.

[19] The total costs amount of $1,320.00 was described as relating to “[C]onsultants work in preparing and complying with ALL requests from Fair Work Commission throughout this process”.

[20] This itemised schedule of costs was accompanied by a tax invoice on Innovative’s letterhead that was dated 28 November 2017 and addressed to MMA247 (Shinsen). This invoice provided the total amount of $1,320.00 was calculated in relation to the following:

a) A claim for $220.00 for: “13.09.17 Review and commence response to Fair Work Commission’s ‘Fair Dismissal Remedy’ as per letter dated 13 September 2017. Taiepa v Shinsen Taijutsu PL”;

b) A claim for $220.00 for: “20.09.17 Ensure all works have been completed and submitted as per FWC request”;

c) A claim for $440.00 for: “25.10.17 Review and commence response to Fair Work Commission’s Notice of Hearing (Jurisdictional) listed for 19 December 2017. Letter dated 23 October 2017”;

d) A claim for $440.00 for “01.11.17 Finalise Outline of Argument as required by 5 November 2017. Includes site visit to MMA247 to confirm witness statements and gather supporting documentation”

Preliminary issue

[21] I noted that at the time of filing its Form F3, Shinsen did not provide details of any person or business that was representing it in relation to the unfair dismissal proceedings brought by Mr Taiepa. On 13 December 2017, I caused correspondence to be sent to Ms Wallace in response to Shinsen’s cost application. Mr Taiepa was copied in on this correspondence from my chambers, which relevantly stated as follows:

“Deputy President Clancy, Termination of Employment Panel Head, has reviewed the Application and is of the view that there appears to have been at no stage notice given by the Respondent of its engagement of a representative, either in its filing of a Form F3 – Employer Response to Unfair Dismissal Application, or by way of a Form F53 – Notice of representative commencing to act.

As such, the Applicant was never put on notice that a representative had been engaged by the Respondent to prepare material or that it might incur costs of the nature now sought in relation to the unfair dismissal application. Further, the Application for costs does not outline either the basis upon which the Respondent submits the Applicant made his unfair dismissal application vexatiously or without reasonable cause, or how it should have been reasonably apparent to him that his application had no reasonable prospect of success (s.611 of the Fair Work Act 2009) or what unreasonable act or omission of the Applicant caused the Respondent’s costs to be incurred (s.400A of the Act).

Therefore, the Deputy President would like the Respondent’s response to the matters he has raised. Please provide this by way of reply email as soon as possible”.

[22] No response was initially received so I caused further correspondence to be sent to Ms Wallace of Innovative on 5 January 2018 advising that if a response was not received by close of business on 25 January 2018, it would be assumed Shinsen did not press the costs application and the Commission file would be closed.

[23] On 10 January 2018, Ms Wallace replied on behalf of Shinsen to my 5 January 2018 correspondence, submitting:

“Referring to Form F3 - Employers Response to Unfair Dismissal Application and the question 'Does the Respondent have a representative?' with the guideline 'A representative is a person or business who is representing the Respondent. This might be a lawyer, an employer association or a family member or friend who will speak on behalf of the Respondent. There is no requirement to have a representative.'

The correct answer was given as Mr Valere Kolker (The Respondent) spoke on his own behalf. Whilst Innovative Bookkeeping Studio was contracted to assist with the Unfair Dismissal Application process, they were not contracted to speak on behalf of Mr Kolker. If the question required the Respondent to outline any assistance provided by external persons/companies, then maybe a rewording to this question is required. At this stage, the question is clear and was answered accordingly.”

[24] It seems that Shinsen engaged Innovative to assist it with its defence of the unfair dismissal application. In seeking the costs that it has incurred in doing so, it is in essence seeking the costs it has incurred in having engaged a paid agent to represent it.

[25] The definition of “paid agent” in the Act is as follows:

“paid agent, in relation to a matter before the FWC, means an agent (other than a bargaining representative) who charges or receives a fee to represent a person in the matter.” 5

[26] In the recent decision in Fitzgerald v Woolworths Limited (Fitzgerald), 6 the Full Bench stated, in relation to the scope of the representation referred to in s.596 of the Act:

“…we consider that s.596 is not confined to permission for courtroom advocacy, and indeed appears to have been drafted in a way that is deliberately distinct from the predecessor provisions and was intended to put beyond doubt that all aspects of representation in connection with a matter were to be encompassed. The only relevant limitation on the scope of representation identifiable in s.596(1) is that it must be in a matter before the FWC. That would naturally exclude legal and agency services provided in relation to a justiciable controversy under the FW Act before an application to the Commission is made, and would probably also exclude the provision of legal advice to a party, inter partes dealings and other activities which do not involve interaction with the Commission itself even after an application is made to the Commission.” 7

[27] The Full Bench stated that “representation”, in the legal context included the preparation of documents 8 and further, “outside of the context of legal representation, a paid agent involved in proceedings before the Commission will typically engage in non-legal analogues of most of the above categories of work, and would be regarded as “representing” their principal in doing so.”9

[28] I am satisfied therefore that the definition of “paid agent” in the Act is broad enough to encompass Innovative and that the work it undertook for Shinsen, the cost of which Shinsen now claims, is capable of falling within the scope of representation by a paid agent.

[29] As to my earlier observation that Mr Taiepa was never put on notice that a representative had been engaged by the Respondent to prepare material or that it might incur costs of the nature now sought in relation to the unfair dismissal application, I have had regard to what Shinsen has submitted in reply. It appears to have read the question “Does the Respondent have a representative?” strictly in accordance with the text directly below it (“A representative is a person or business who is representing the Respondent. This might be a lawyer, an employer association or a family member or friend who will speak on behalf of the Respondent. There is no requirement to have a representative.”) rather than in accordance the broader definition of representation subsequently articulated by the Full Bench in Fitzgerald.

[30] I accept that pre-Fitzgerald, a layperson unfamiliar with the processes of the Commission might have interpreted that particular question and its accompanying text in the way Shinsen and Ms Wallace did. In light of Fitzgerald, the accompanying text outlining a description of the scope of ‘representation’ will require review and perhaps some clarification.

[31] In the circumstances before me, I do not consider the way in which Shinsen answered that question should necessarily count against it. 10

Conclusion

[32] I do not consider Shinsen is precluded from making application for the costs it incurred as a result of having retained the services of Innovative Bookkeeping Studio.

[33] As to the further conduct of this matter, I note that Mr Taiepa has not engaged with the matter in any way since 5 October 2017. He has made no response to the costs application to date. Nonetheless, before further dealing with the costs application, I will provide Mr Taiepa a final opportunity to provide a response to it.

[34] Specifically, I will direct Mr Taiepa to file in the Commission and serve on Shinsen by 4.00pm on Tuesday, 20 March 2018:

a) Submissions and any other material upon which he intends to rely in reply to the grounds on which the costs are sought, outlined at paragraph 2.2 in the Form F6 - Application for costs filed by Shinsen on 6 December 2017 and the email dated 10 January 2018 from Ms Amanda Wallace to the Commission; and

b) Submissions in reply to the itemised Schedule of Costs attached to the F6 - Application for costs filed by Shinsen on 6 December 2017.

[35] In the event I receive any submissions from Mr Taiepa, Shinsen may file in the Commission and serve on Mr Taiepa any written submissions in reply by 4.00pm on Tuesday, 27 March 2018.

[36] If I receive no submissions from Mr Taiepa by 4.00pm on 20 March 2018, I will determine the costs application based on the material currently filed.

DEPUTY PRESIDENT

 1   [2017] FWC 6381.

 2   PR598267.

 3 Section 402 of the Fair Work Act 2009.

 4 Section 611(1) of the Fair Work Act 2009.

 5 Section 12 of the Fair Work Act 2009.

 6   [2017] FWCFB 2797.

 7 Ibid at [44].

 8   Ibid at [35] and [44].

 9 Ibid at [35].

 10   For an example of where the Commission has adopted a similar approach, see Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnellv Kelly[2017] FWCFB 763 at [23] and [29]-[30].

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