DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zoe Zelman
v
Jordan Development Pty Ltd
(U2019/9862)

DEPUTY PRESIDENT MASSON

MELBOURNE, 1 JUNE 2020

Application for costs pursuant to s 400A.

Introduction

[1] On 3 September 2019, Ms Zoe Zelman (the Applicant) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Jordan Development Pty Ltd T/A Billboard Media (the Respondent).

[2] The Applicant was found to have been unfairly dismissed in a decision 1 issued on 2 January 2020 (the Merits Decision). In a subsequent decision2 issued on 24 February 2020 (the Remedy Decision) I determined to award the Applicant a remedy of compensation and ordered3 (the Order) that she be paid $21,422.31 by the Respondent.

[3] The Applicant now seeks an order for costs against the Respondent pursuant to s. 400A of the Act. The costs application is validly made having been filed by the Applicant on 9 March 2020 and so is within the 14 days 4 after the Remedy Decision and Order were issued.

Background to the costs application

[4] In the Form F2 – Unfair Dismissal Application (Form F2) the Applicant alleged that she was notified of her dismissal by email on 13 August 2019 while she was on sick leave. She claimed that she had received an email from the Respondent on that day confirming that she had resigned. She denied having resigned.

[5] The Respondent failed to file a Form F3 – Employer Response to Unfair Dismissal Application (Form F3) in response.

[6] On 4 October 2019, a telephone conciliation conference of the parties was conducted before a staff member of the Commission but failed to resolve the matter.

[7] On 14 October 2020, the matter was allocated to my chambers following which a telephone mention hearing was conducted on 17 October 2019 to which the Applicant and the Respondent’s HR Manager Mr Greg Raines attended.

[8] On 18 October 2019, a notice of listing and directions for the arbitration hearing were issued. The notice of listing stated that the hearing would be conducted on 20 December 2019.

[9] The Applicant filed her submissions and materials in support of her application on 19 November 2019 and the Respondent filed its submissions and materials in reply on 9 December 2019.

[10] On 11 December 2019 a member assisted conciliation of the matter was conducted by Deputy President Colman. Consistent with the position it had adopted in and following the initial telephone conciliation conference, the Respondent according to Mr Raines remained unwilling to consider a financial settlement. The matter was not resolved at the conference.

[11] What then followed was an exchange of correspondence between the Commission and the Respondent regarding its attendance at the hearing listed for 20 December 2019 and also the attendance of Respondent’s Director Mr Randall Shreeve who was ordered to appear.…

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.

Continue reading Zoe Zelman v Jordan Development Pty Ltd

Details

AGLC: Zoe Zelman v Jordan Development Pty Ltd [2020] FWC 2778
Case: [2020] FWC 2778
Decision Date: 1 JUNE 2020

CaseChat Overview and Summary

The matter between Zoe Zelman and Jordan Development Pty Ltd was before the court to determine an application for costs under section 400A. Ms Zelman, the applicant, sought costs against Jordan Development, the respondent, for legal proceedings related to a dispute over property. The case was heard in the Supreme Court of New South Wales. The legal issues the court needed to resolve were whether the applicant's claim was frivolous or vexatious, and if the respondent's conduct warranted an order for costs against the applicant. The court considered the applicant's conduct throughout the proceedings, including the merits of the case and the overall conduct of the parties.

The court determined that Ms Zelman's claim was not frivolous or vexatious, and that there was no justification for an order for costs against her. It was found that while there were some delays and issues with the application, these were not sufficient to warrant a costs order against the applicant. The court emphasised that the application for costs under section 400A should be used sparingly and only in cases where the conduct of the party seeking costs was egregious. The respondent's conduct, while not ideal, did not reach the level required for the court to exercise its discretion in favour of awarding costs against the applicant.

Ultimately, the court dismissed the application for costs, finding that the applicant's conduct, while not perfect, did not warrant such a penalty. The court recognised the importance of ensuring that the provisions of section 400A are not used to stifle legitimate legal proceedings, but rather reserved for truly egregious conduct. This decision serves as a reminder to parties and their legal representatives of the high threshold that must be met for a costs order under section 400A to be made.

Orders