Zion Church in Melbourne Australia Inc v Solomon Woldeyohannes
[2020] FWC 6338
•26 NOVEMBER 2020
| [2020] FWC 6338 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.400A—Costs
Zion Church in Melbourne Australia Inc
v
Solomon Woldeyohannes
(C2020/7962)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 26 NOVEMBER 2020 |
Costs application – unfair dismissal application discontinued on last day of hearing – whether unreasonable act or omission – whether no reasonable prospects of success – application dismissed
[1] This decision concerns an application by the Zion Church in Melbourne Australia Inc (Church) for a costs order against Mr Solomon Woldeyohannes pursuant to s 400A of the Fair Work Act 2009 (Cth) (Act).
[2] Mr Woldeyohannes brought an application for an unfair dismissal remedy pursuant to s 394 of the Act, in which he contended that he had been unfairly dismissed by the Church from his position as an assistant pastor. The Church contended that Mr Woldeyohannes was not its employee, and that in any event it had a valid reason for the dismissal constituted by Mr Woldeyohannes’s highly inappropriate behaviour at a church service on 29 September 2019, during which he interrupted the service and made abusive statements about the senior pastor in front of the congregation.
[3] In a decision dated 11 August 2020, I dismissed the Church’s jurisdictional objection that had contended that Mr Woldeyohannes was not its employee. 1 The hearing of the merits of the application was then programmed. Mr Woldeyohannes filed a large number of witness statements and voluminous submissions. The hearing commenced on 12 October 2020. A further hearing day was required and listed for 16 October 2020. Early on the morning of 16 October 2020, Mr Woldeyohannes filed a notice of discontinuance.
[4] The Church contends that Mr Woldeyohannes made an unreasonable omission, for the purposes of s 400A, by failing to discontinue his application much earlier, and that he committed an unreasonable act by discontinuing the application without a cogent reason. The Church says that this unreasonable act or omission caused it to incur costs in the amount of $23,600, comprised of $15,000 in counsel’s fees and $8,600 in solicitor fees for general care and conduct of the proceeding.
[5] Mr Woldeyohannes denies that he acted unreasonably either by act or omission and says that the costs application should be dismissed.
[6] I have decided to determine the application on the papers.
Framework
[7] Section 400A of the Act provides as follows:
“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.”
[8] In order to assess whether Mr Woldeyohannes ‘caused … costs to be incurred because of an unreasonable act or omission … in connection with the conduct or continuation of the matter’, it is necessary to understand the factual background and the case brought against the Church by Mr Woldeyohannes.
Factual background
[9] Mr Woldeyohannes was the assistant pastor of the Church. He was required to assist the senior pastor, Mr Teklemariam. During 2019, certain tensions arose in their relationship. On 5 January 2019, Mr Teklemariam told Mr Woldeyohannes that he needed to improve his relationship with church leaders. Mr Woldeyohannes took offence to Mr Teklemariam’s remarks and considered them to be hostile. In May 2019, after two of the Church elders raised concerns about Mr Woldeyohannes, there were further discussions between Mr Teklemariam and Mr Woldeyohannes about his behaviour. The earlier meeting in January 2019 was also discussed. Mr Woldeyohannes and Mr Teklemariam apologised to each other for any offence caused at this meeting.
[10] In July 2019 a further problem arose, when Mr Woldeyohannes intervened in a dispute between a parishioner and the Church leadership about certain remarks that the parishioner had made to the congregation during a service. Mr Woldeyohannes thought that the parishioner had been badly treated by the Church leadership. Mr Teklemariam thought that Mr Woldeyohannes was creating division in the Church. He decided to invite Dr Biftu, the church overseer, to deal with the tensions between Mr Woldeyohannes and the leadership of the church. At a meeting on 21 August 2019, Dr Biftu stated that there was a ‘lack of trust especially from Pastor Solomon’ as well as ‘a lack of submission from Pastor Solomon’. The elders then proposed that Mr Woldeyohannes take paid sabbatical leave. Mr Woldeyohannes did not accept the criticisms of him and did not agree to take paid leave.
[11] On 28 September 2019, Mr Teklemariam directed Mr Woldeyohannes to take three months of paid leave and asked him to go home. Mr Woldeyohannes said that he would not go home, and that Mr Teklemariam could call the police. According to one elder who was present, Mr Woldeyohannes said ‘Do you really think you can get rid of me? Wait and see what happens next’. Mr Woldeyohannes did not deny making these statements.
[12] The following day was a Sunday. Mr Teklemariam was officiating at the morning service. Towards the end of the service, Mr Woldeyohannes approached the front of the Church, dressed in torn clothes. He addressed the congregation and, referring to Mr Teklemariam, said: ‘He is a murderer’; ‘He has blood on his hands’; ‘He destroyed my life’; ‘He causes many people to get divorced’; and ‘He is a deceiver and is deceiving you all’. It is important to note that Mr Woldeyohannes does not dispute saying these things. The congregation was asked to leave, and the service ended. Mr Teklemariam said that many people were very upset by Mr Woldeyohannes’s behaviour. Mr Woldeyohannes said that he was prevented from speaking to the congregation, and that many people wanted to hear from him.
[13] On 30 September 2019, the Church leadership wrote to Mr Woldeyohannes, stating that, as a result of the incident the previous day, and because of concerns for the safety and security of its members, he was prohibited from entering the Church compound for any reason. However, no other disciplinary action was taken against Mr Woldeyohannes at this time. Mr Woldeyohannes remained absent from his duties. The Church arranged for an eminent cleric to visit Melbourne from Ethiopia to try to resolve the conflict between Mr Woldeyohannes and the church leadership. At a meeting on 30 December 2019, Mr Teklemariam asked Mr Woldeyohannes to forgive him for any personal grievances he might have caused – a gracious act in my view, given what Mr Woldeyohannes had said about him in front of the congregation on 29 September 2020. Mr Woldeyohannes replied by asking Mr Teklemariam to specify the things for which he was apologising and maintained that for his part, he had done nothing wrong.
[14] On 4 March 2020, the Church wrote to Mr Woldeyohannes and stated that he had two weeks to ‘repent’ and ‘present himself without any preconditions’ otherwise he would be ‘released’ from his position. On 9 March 2020, Mr Woldeyohannes replied, contesting the actions of the Church, contending that the rules of the association had not been observed, and asking for further mediation. Mr Woldeyohannes’s employment ended on 18 March 2020.
Submissions in the unfair dismissal application
[15] Mr Woldeyohannes submitted that there was no valid reason for his dismissal, either for the purpose of the Small Business Fair Dismissal Code (Code) or s 387 of the Act. Mr Woldeyohannes said that his behaviour on 29 September 2019 was not a valid reason for dismissal because it was understandable in the broader context. He said that this context included his mistreatment at the hands of Mr Teklemariam and the board; the failure of the board to comply with the rules of the association; the fact that certain board members had not been properly appointed or had had their terms of appointment invalidly extended beyond 2 years; the Church’s failure to conduct proper mediation of the disputed issues; the failure of the Church to persist with mediation as an alternative to dismissal; and the illegitimacy of the decision to dismiss him, which was taken contrary to the constitution. Mr Woldeyohannes also said that the board of the Church had acted against the wishes of the congregation in removing him from his ministry.
[16] The Church contended that the dismissal of Mr Woldeyohannes was not unfair, because it was consistent with the Code, and that even if this were not the case, the dismissal was not unfair, having regard to the considerations in s 387. The Church said that, either for the purpose of the Code or s 387, it had a valid reason to dismiss Mr Woldeyohannes, because of his outrageous conduct at the church service on 29 September 2019, which amounted to serious misconduct. It submitted that this incident had caused great harm to the Church, and had resulted in a decline in attendance, tithes and offerings. It said that, although it considered Mr Woldeyohannes’s behaviour on 29 September 2019 to be serious misconduct warranting immediate dismissal, it decided, in accordance with the faith which governs the Church, to provide him with an opportunity to repent and apologise. However, he neither apologised nor acknowledged any wrongdoing.
The merit of the unfair dismissal application
[17] Mr Woldeyohannes has discontinued his application and therefore I do not propose to address in this decision what might have been my conclusion as to the disposition of the unfair dismissal application. Nevertheless, it is appropriate for the Commission to take into account the merit of the unfair dismissal application in considering the application for costs that the Church has now made against Mr Woldeyohannes.
[18] In my view, the case put before the Commission by Mr Woldeyohannes was weak. His conduct at the church service on 29 September 2019 was highly inappropriate. He made very disparaging statements about Mr Teklemariam in front of the congregation. Even if one accepted Mr Woldeyohannes’s contention that his reference to Mr Teklemariam being a ‘murderer’ was merely a biblical metaphor, no explanation was offered for the other abusive statements. Mr Woldeyohannes was the assistant pastor, employed by the Church to assist the senior pastor. Upon his ordination in 2011, he pledged to ‘submit’ to the Church and to Mr Teklemariam. It is difficult to see how Mr Woldeyohannes’s conduct on 29 September 2019 can be reconciled with that pledge. Mr Woldeyohannes’s argument that this conduct was understandable because of the contextual matters he raised was ambitious.
Consideration of the costs application
[19] The question in the present application is whether Mr Woldeyohannes ‘caused … costs to be incurred because of an unreasonable act or omission … in connection with the conduct or continuation of the matter’. The Church contends that Mr Woldeyohannes discontinued his application on the morning of the final day of the hearing without a reasonable explanation. It says that this was an unreasonable act, or, insofar as the proceedings should have been discontinued much sooner, an unreasonable omission.
[20] Mr Woldeyohannes’s reason for discontinuing his application was related to a video recording of the church service on 29 September 2020 that the Church had filed in the Commission before the hearing. The recording that was initially filed had a fault. It was not until 9 October 2020 that a viewable version of the recording was lodged. At the commencement of the hearing on 12 October 2020, Mr Woldeyohannes objected to the admission of the video on the basis that it had been filed late, and because he believed that it had been edited to the forensic advantage of the Church. Mr Teklemariam strongly denied that the video had been edited. I decided to exclude the video from evidence, noting that the words spoken by Mr Woldeyohannes during the service were not in dispute. In a brief note accompanying his notice of discontinuance on the morning of 16 October 2019, Mr Woldeyohannes said that he wished to discontinue his application because of the prejudice caused by the late filing of the video, which was ‘manufactured evidence’, and because his representative had not been able to present his case effectively, as a result of having to spend the days before the start of the hearing investigating this matter.
[21] I agree with the Church that this is not a sensible explanation for the decision to discontinue the application. No prejudice accrued to Mr Woldeyohannes in connection with the video, because of the simple fact that it was not admitted into evidence. Mr Woldeyohannes argued that the unedited video of the church service would have shown that Mr Teklemariam and other elders unfairly prevented him from speaking, and that this was the cause of any commotion. He said that the video could have assisted his case. But it is difficult to see how. It is hardly surprising that the elders would seek to prevent Mr Woldeyohannes from speaking, given the things he was saying about Mr Teklemariam. In any event, if Mr Woldeyohannes had wanted to show video evidence of the incident on 29 September 2019, he could have sought an order from the Commission that the Church produce it. He did not do so. Mr Woldeyohannes was content for the hearing to proceed on 12 October 2020, once the video was excluded from evidence. And if Mr Woldeyohannes and his representative chose to spend the days before the hearing focusing on the video, it was their choice to do so. The reasons given for discontinuing the application on the morning of 16 October 2020 are not convincing. In my opinion, it is likely, as the Church contended, that Mr Woldeyohannes simply apprehended that his application would not succeed and preferred to withdraw it.
[22] However, although the reason given for the discontinuance was not a sensible one, the conduct of the applicant must be considered objectively. In my view the discontinuance of a weak case cannot be described as unreasonable. And if it was the case that Mr Woldeyohannes reassessed his prospects during the proceeding and considered them to be diminished, the decision to discontinue for this reason would in fact be a sound one. Further, the act of discontinuance did not cause the Church to incur costs, because the application ceased when the form F50 was submitted (a person does not require the leave of the Commission to discontinue a proceeding). No further costs needed to be incurred from this point.
[23] The Church submitted that, in the alternative, Mr Woldeyohannes’s failure to discontinue the matter earlier was an unreasonable omission. The question then arises as to when the application should have been discontinued. ‘Much sooner’, says the Church. More specifically, in its reply submissions the Church contended that Mr Woldeyohannes should have discontinued his application upon receipt of the Church’s written materials on 8 September 2020. However, in my view the Church’s materials were not of such overwhelming strength that Mr Woldeyohannes should reasonably have discontinued his application upon receiving them. More generally, I do not consider that there was some other identifiable point at which the proceedings ought reasonably to have been discontinued. This was not a case where, for example, a crucial admission was made under cross-examination, such that it was unreasonable for the applicant not to discontinue the application at that time.
[24] The Church also contended that the application should never have been brought in the first place, because it had no reasonable prospects of success in circumstances where Mr Woldeyohannes did not deny making the disparaging remarks about Mr Teklemariam. To the extent that this contention is made in respect of s 400A, it faces the difficulty that an unreasonable act or omission must be ‘in connection with the conduct or continuation of the matter’, which suggests to me that the provision is concerned with the conduct of a party during a proceeding, rather than the decision to bring the proceeding. The Explanatory Memorandum to the Fair Work Amendment Bill 2020 supports this view. 2 The contention that the proceeding ought not to have been brought in the first place is amenable to consideration under s 611(2)(b) of the Act, which provides that the Commission may order a person to bear some or all of the costs of another person in relation to an application in the Commission if it is satisfied that it should have been ‘reasonably apparent’ to the person that the application had ‘no reasonable prospect of success’. The Church does not invoke this section, but unlike s 400A, the Commission’s power under s 611 is not contingent on an application having been made under that provision.
[25] However, although Mr Woldeyohannes’s case was weak, I would not characterise it as having ‘no reasonable prospect of success’. This sets a high bar for an applicant for costs orders under s 611. Full Bench authority has established that a conclusion that an application had ‘no reasonable prospect of success’ should only be reached with great caution and in circumstances where the application is ‘manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.’ 3 This is not such a case. I note in particular that, following the incident on 29 September 2019, the Church persisted for some months with efforts to reconcile with Mr Woldeyohannes, which at least arguably could speak to a recognition of some mutual responsibility for the poor relationship, and the possibility that reinstatement (the only remedy that was sought) might be appropriate.
Conclusion
[26] The discretion to award costs under s 400A and s 611 is subject to strict conditions. I am not satisfied that there was an unreasonable act or omission on the part of Mr Woldeyohannes for the purpose of s 400A. And although he had a weak case, it was not one that had ‘no reasonable prospect of success’ for the purpose of s 611(2)(b). I therefore have no jurisdiction to award costs under these provisions. The application for costs is dismissed.
DEPUTY PRESIDENT
Determined by written submissions:
Zion Church in Melbourne Australia Inc | 26 October 2020 |
Printed by authority of the Commonwealth Government Printer
<PR724882>
1 [2020] FWC 4194
2 See page 7, paragraph 3. See also Welsh v Just Fine Food t/a Vanilla Slice Pty, at [36], per Clancy DP
3 Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2016] FWCFB 1638 at [4]
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