Walter Zaccaria v Valcore Fit-Outs Pty Ltd T/A Valcore Interiors

[2017] FWC 6616

[2017] FWC 6616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
s.400A—Costs

Walter Zaccaria
v
Valcore Fit-Outs Pty Ltd T/A Valcore Interiors
(U2017/7629)

DEPUTY PRESIDENT BOOTH SYDNEY, 11 DECEMBER 2017

Costs application following discontinuance of an application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.400A – costs not incurred due to unreasonable act or omission by costs respondent – costs application dismissed.

[1] On 14 July 2017, Mr Walter Zaccaria made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act (the Act) in relation to the termination of his employment by Valcore Fit-Outs Pty Ltd T/A Valcore Interiors (Valcore). On 21 August 2017, he discontinued his application by his paid agent, Ms Corrinne Zuchetti, filing a Notice of Discontinuance on a Form F50.

[2] Valcore seek an order for costs amounting to $4,081.00 against Mr Zaccaria pursuant to s.400A of the Act.

[3] Mr Zaccaria made his application on the grounds that his dismissal on 23 June 2017 was not a genuine redundancy and that the dismissal lacked procedural fairness.

[4] On 24 July 2017, Valcore filed a response to Mr Zaccaria’s application on a Form F3, noting that they had a jurisdictional objection that Mr Zaccaria was genuinely redundant.

[5] On 2 August 2017, Valcore requested that conciliation by one of the Commission’s conciliators listed for 9 August 2017 be vacated because Valcore sought the jurisdictional objection determined before any conciliation. The matter was referred to me for arbitration.

[6] On 8 August 2017, the matter was listed for mention for 16 August 2017. I also listed the matter for an arbitration hearing on 29 September 2017 and issued directions for a timetable for submissions.

[7] On 15 August 2017, Valcore made an application pursuant to s.596 to be represented. Mr Zaccaria did not make a similar application, although it was apparent that he was represented by Ms Zuchetti.

[8] On 16 August 2017, I conducted the mention by telephone. Permission to be legally represented was granted to Mr Zaccaria and Valcore for the purpose of the telephone mention. Mr Zaccaria’s representative, Ms Zuchetti, attended without her client. Valcore attended with its legal representative. Ms Zuchetti informed the Commission that her client was overseas on a pre-arranged trip and had not given her instructions in relation to the matter.

[9] On 17 August 2017, Valcore submitted an application for dismissal of the application pursuant to s.399A and costs pursuant to s. 400A.

[10] Before the s.399A application could be dealt with, Mr Zaccaria discontinued his application.

[11] On 24 August 2017, Valcore filed its application for costs pursuant to s.400A in compliance with s.402 on a Form F6.

[12] On 25 August 2017, I issued directions for submissions to be made by Valcore and Mr Zaccaria in relation to that application.

[13] My Chambers advised the parties that a decision would be made on the papers, unless the parties objected or factual conflict was identified once the submissions are received.

[14] Submissions were received in compliance with the directions from Valcore on 8 September 2017 and from Mr Zaccaria on 22 September 2017.

[15] On 18 October 2017, my Chambers asked the parties to advise if they agreed to a decision being made on the papers or whether they could identify any factual conflicts in the submissions by 25 October 2017.

[16] On 25 October 2017, Valcore advised that they did consider that there were factual conflicts. Some factual conflicts related to the substantive application. However, some related to the costs submissions.

[17] Since the costs application was made under Part 3-2 of the Act and s.397 requires a hearing in circumstances of factual conflict, I listed the matter for telephone hearing on 5 December 2017.

[18] At the hearing on 5 December 2017, Mr Zaccaria represented himself. Valcore was represented by permission of the Commission by Mr Michael Simone of Simone Legal. Mr Zaccaria objected to Mr Simone representing Valcore, but I decided that s.596(2)(b) of the Act was enlivened and it would be appropriate for me to exercise my discretion to grant representation. I considered that Valcore, being a small business employer, would not be able to represent itself effectively in the costs hearing, and would not be as effective in assisting the Commission in the explanation of particular costs.

[19] The application is made pursuant to s.400A of the Act which reads as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC's power to order costs under section 611.”

[20] The question I must address is “Did Valcore incur costs due to an unreasonable act or omission of Mr Zaccaria?”

[21] Valcore submitted that Mr Zaccaria unreasonably failed to properly instruct his representative thereby drawing out the proceedings and allowing Valcore to continue to incur legal fees.

[22] Valcore’s costs incurred from 19 July to 10 August 2017 were in response to his application and in response to the upcoming conciliation that was vacated at Valcore’s initiative. Mr Zaccaria was entitled to make his application. These costs could not be said to have been due to an unreasonable act or omission of Mr Zaccaria.

[23] Valcore say that because Mr Zaccaria was not available for the mention on 16 August 2017 and had not instructed his representative costs were incurred because of an unreasonable act or omission.

[24] Mr Zaccaria did not attend on 16 August 2017, and his representative Ms Zuchetti told the Commission that she did not have instructions. However, during the hearing on 5 December 2017, Mr Zaccaria revealed to the Commission and Valcore for the first time that he had indeed instructed Ms Zuchetti in relation to the application prior to the mention. He revealed that he had an exchange of emails between himself and Ms Zuchetti to the effect that he was instructing her to discontinue the proceedings. I directed Mr Zaccaria to forward this email thread to my Chambers and to Ms Simone, and provided Mr Simone with the opportunity to make further submissions.

[25] Mr Simone’s further submissions acknowledged that the “email chain tends to support the suggestion made by the Respondent (to the costs application) during the course of the hearing.” 1

[26] He went on to say:

“Whilst it supports the allegation, it does not assist the Respondent.” 2

[27] I disagree. I consider that this revelation negates the assertion that Mr Zaccaria sent his representative to the mention on 16 August 2017 without instructions. Accordingly, there was no unreasonable act or omission on his part.

[28] Valcore submits that I should infer that Mr Zaccaria discontinued the application because of legal advice and that this legal advice caused him to doubt his prospects of succeeding in the application. This was canvassed at the hearing on 5 December 2017. Mr Zaccaria refuted this assertion, saying he discontinued his application because he could not afford the legal fees he anticipated would be required to conduct the case.

[29] In all the circumstances, I am not satisfied that Valcore incurred costs due to an unreasonable act or omission of Mr Zaccaria. Therefore, my discretion to make an order for costs is not enlivened and I must dismiss the application for costs. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr M Simone, solicitor, for the Costs Applicant.

Mr W Zaccaria, self-represented.

Hearing details:

2017.

Sydney (by telephone):

December, 5.

Final written submissions:

Applicant: 5 December 2017.

Respondent: 8 December 2017.

 1 Further costs submissions by Valcore (8 December 2017) [3].

 2   Ibid.

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