Zoe Zelman v The Trustee for the Shreeve Family Trust t/a Billboard Media
[2020] FWCFB 4203
•10 AUGUST 2020
| [2020] FWCFB 4203 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Zoe Zelman
v
The Trustee for the Shreeve Family Trust t/a Billboard Media
(C2020/4859)
VICE PRESIDENT HATCHER | SYDNEY, 10 AUGUST 2020 |
Appeal against decision [2020] FWC 2778 of Deputy President Masson at Melbourne on 1 June 2020 in matter number U2019/9862.
Introduction and background
[1] Ms Zoe Zelman has lodged an appeal, for which permission to appeal is required, against a decision 1 (costs decision) of Deputy President Masson issued on 1 June 2020. Ms Zelman applied for an order for costs on 9 March 2020 pursuant to s 400A of the Fair Work Act 2009 (FW Act). In the costs decision, the Deputy President declined to exercise his discretion to award costs because he was unable to reach the required level of satisfaction that Ms Zelman had incurred costs as a consequence of the actions of Jordan Developments Pty Ltd, the Trustee for the Shreeve Family Trust t/a Billboard Media (respondent).2
[2] Ms Zelman commenced employment with the respondent on 3 July 2018. Ms Zelman held the position of accounts receivable officer performing additional administrative duties until her dismissal on 13 August 2019. On 3 September 2019 Ms Zelman made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s 394 of the FW Act.
[3] The unfair dismissal matter was heard in Melbourne on 20 December 2019. Ms Zelman succeeded in her application, with Deputy President Masson determining that the dismissal was unfair within the meaning of s 385 of the Act. In his decision (unfair dismissal decision) issued ex tempore on 2 January 2020 3 the Deputy President decided there was insufficient material before him to determine the question of remedy,4 and he subsequently issued directions to the parties for the filing of submissions and materials going to the question of remedy.
[4] A further hearing was held on 13 February 2020. On 24 February, 2020 the Deputy President issued a decision 5 in which he determined that Ms Zelman should be awarded compensation in lieu of reinstatement (remedy decision), and made an order requiring the respondent to pay Ms Zelman the amount of $21,442.31 gross less taxation as required by law (order).6 The respondent failed to comply with the order.
[5] On 9 March 2020 Ms Zelman made her application for an order for costs against the respondent pursuant to s 400A of the FW Act. Section 400A provides:
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.
[6] A hearing in relation to the cost’s application was conducted by the Deputy President on 28 May 2020.
[7] On 15 May 2020 the Deputy President’s Chambers received correspondence from the Fair Work Ombudsman advising that the order had incorrectly described the name of the respondent. Corrections to the remedy decision and order were issued on 18 May 2020.
The costs decision
[8] In the costs decision the subject of the appeal, the Deputy President set out the background 7 to the matter and Ms Zelman’s submissions in support of her cost application, and then began his consideration of s 400A(1) and the relevant principles with recitation of the various decisions that consider the phrase “unreasonable act or omission” used in the provision.8 The Deputy President then proceeded to consider the conduct of the respondent and whether during the unfair dismissal proceedings it engaged in any unreasonable act or omission. In this respect the Deputy President concluded that various instances of conduct on the part of the respondent contributed to the unnecessary continuation of the matter after the point at which the parties had filed their materials on 9 December 2019.9 He then turned to consider whether the respondent’s conduct caused Ms Zelman to incur costs. His reasoning and conclusions in this respect were as follows:
“Item 010 – Fair Work commission – Phone Conciliation (x1) - $750
[42] This cost was incurred by the Applicant in the initial telephone conciliation conference conducted on 4 October 2019. According to the Tax Invoice Mr Mistica represented the Applicant. The conference occurred prior to the acts and omissions of the Respondent that I have found to be unreasonable. It is therefore not a cost that was incurred and attributable to the Respondent’s unreasonable acts or omissions.
Item 001 – Fair Work Commission – Hearing Appearance (x2) - $3060
[43] This item relates to the claimed appearance of representatives from HR Division, the organisation apparently representing the Applicant. The hearings to which the claimed appearances relate were that of the member assisted conciliation conducted by Deputy President Colman on 11 December 2019 and the determinative hearing before me on 20 December 2019.
[44] Turning firstly to the 20 December 2019, the Applicant was not represented in those proceedings. She appeared on her own behalf. She was accompanied by an individual who identified themselves as a ‘support person’, a Ms Kate Fincher, who when asked at the outset of the proceedings as to whether she was seeking to appear advised that she was not. In these circumstances it cannot be reasonably contended that the Applicant was represented or that a representative from HR Division ‘appeared’ at the hearing of the 20 December 2019. That lack of any formal ‘appearance’ or representation would not have put the Respondent on notice that the Applicant was incurring costs.
[45] As regards the member assisted conciliation conference on 11 December 2019 the Applicant was unable to recall or say whether she was represented in that conference or whether she was merely accompanied by a support person. Furthermore, there is no record of permission to appear having been sought pursuant to s. 596 of the Act in either of the two proceedings to which I have referred.
[46] Having regard to the above, why the Tax Invoice from HR Division refers to two ‘Hearing Appearances’ is curious. Certainly, there was no formal representation sought or provided in the hearings and as such any costs incurred could not be attributed to the Respondent’s unreasonable acts or omissions in my view.
Item 004 – Letter to employer (x1) - $190
[47] The Applicant was uncertain as to the timing or content of the letter referred to in the Tax Invoice. Nonetheless, it was confirmed by the Respondent that a settlement offer was sent by the Applicant’s representative following the telephone conciliation on 4 October 2019 thus confirming the particulars contained in the Tax Invoice. As previously detailed, the offer apparently contained in the letter well preceded the filing of material for the hearing on 20 December 2019. As such the cost incurred was not attributable to the acts or omissions of the Respondent which I have found unreasonable.
Item 002 – Preparation of particulars - $1100
[48] There is no particularity in the Tax Invoice as to what the ‘preparation of particulars’ referred to. The charge may relate to preparation and filing of the initial F2, it may relate to preparation of materials for the merit proceedings and/or the remedy proceedings. It is simply not possible to discern from the Tax Invoice what specific activities the charge relates to. The Applicant was also unable to clarify this point. The lack of particularity in the Tax Invoice has not assisted the Applicant’s cause in pursuing costs.
Item 005 – Appeal advice – various consultations - $1200
[49] This cost was not incurred in the conduct of the matter before me and as such is not capable of consideration in the present s. 400A application.
Item 011 – Complaint to Ombudsman – Failure to pay - $1,100
[50] Similar to Item 005 above, this cost was also not incurred in the conduct of the matter before me and as such is not capable of consideration in the present s. 400A application.”
[9] The Deputy President said that, to award costs pursuant to s 400A, he must firstly be satisfied that there had been acts and omissions that caused Ms Zelman to incur costs and, secondly, he would need to be satisfied that Ms Zelman incurred costs as a consequence of the respondent’s unreasonable acts or omissions. As is evident from the factual conclusions made by the Deputy President in the extracted paragraphs, the Deputy President was not satisfied that Ms Zelman was able to establish that she had incurred costs as a consequence of the respondent’s unreasonable acts or omissions.
Appeal grounds and submissions
[10] Ms Zelman’s notice of appeal contended, as the ground of appeal, the were significant errors of fact in the cost’s decision, namely:
“The commissioner claimed that I had no assistance at my unfair dismissal final hearing. I did have someone. I had a specialist in violence towards women. The commission refused to acknowledge this lady because she was not a lawyer. The commissioner claimed that he remembered no one being in attendance with me.”
[11] Ms Zelman went on in her notice of appeal to contend that she was not awarded costs because the “consultant who attended and spoke on my behalf about the sexual harassment argued with the Deputy President.” In her notice of appeal Ms Zelman set out the following reasons as to why it would be in the public interest to grant permission to appeal:
“Do I need to only have a lawyer in Fair Work Commission. Is bringing a womens sexual violence counselor to represent me so intimidation to a commissioner that he ignored the fact I incurred legitimate costs. I was not my fault that the commissioner and the sexual violence counselor argued”. [sic]
[12] Ms Zelman did not file any written submissions in support of her appeal application. However, on the morning of the appeal hearing, Ms Zelman filed a copy of the invoice she had received from HR Division, a human resources consultancy, which contained in some detail an explanation of the costs incurred. This contained the six items of costs which are dealt with in the costs decision and which we discuss further below.
Consideration
[13] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.10 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[14] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[15] The decision was made pursuant to s 400A, which is found in Pt 3-2 of the FW Act, and arose from an unfair dismissal application made and determined pursuant to Pt 3-2. It is on that basis that s 400 applies to the present appeal.
[16] The test under s 400 has been characterised as “a stringent one.” 11 The task of assessing whether the public interest is met is discretionary and involves a broad value judgment.12 In GlaxoSmithKline Australia Pty Ltd v Makin13a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“…the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests and injustice, or the result is counter intuitive, or that the legal principles appear disharmonious when compared with other recent decisions dealing with similar matters…” 14
[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 15 However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.16
[18] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 17 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[19] Section 400A(1) of the FW Act, which we have earlier set out, empowers the Commission to order costs against a party to a matter relating to an unfair dismissal remedy application if it is first satisfied that two pre-conditions (in addition to the requirement in s.400A(2)) have been met. The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in connection with the conduct or continuation of the matter, and secondly, that such an act or omission caused costs to be incurred by the other party. 18 The Deputy President was satisfied, in respect of Ms Zelman’s costs application, that the respondent’s conduct after the conciliation had satisfied the first requirement. However, in relation to the second requirement, the Deputy President was not satisfied that Ms Zelman had incurred any costs as a result of this conduct after the conciliation. The appeal concerns the Deputy President’s conclusion in the latter respect.
[20] We do not consider that Ms Zelman has an arguable case that the Deputy President’s conclusion that she did not incur costs as a result of the respondent’s conduct was attended by appealable error. The Deputy President determined that the HR Division invoice items 010, 004 (detailed in the excerpt from his decision above) were costs that had been incurred prior to December 2019, and that is clearly correct. Items 005 and 011, being appeal advice provided to Ms Zelman and a complaint to the Fair Work Ombudsman, were plainly not costs that were incurred in the conduct of the matter before Deputy President.
[21] As to item 002, which was for the preparation of particulars including interviewing witnesses, Ms Zelman did not have any witnesses attend the unfair dismissal hearing or any other hearing before the Deputy President. Ms Zelman was unable to provide any further particulars to us about this item. Therefore, there is no reasonable basis for a finding of error in the cost’s decision in this respect.
[22] In relation to item 001 of the invoice, Ms Zelman submitted that she was not aware that her support person did not seek permission to represent her at the hearing of her unfair dismissal application. We have reviewed the audio recording of the hearing. The person in attendance with Ms Zelman confirmed to the Deputy President at the commencement of the proceedings that she was acting in the capacity of Mr Zelman’s “support person” and stated that she would not be speaking on behalf of Ms Zelman and did not seek permission to appear as Ms Zelman’s representative pursuant to s 596 of the FW Act. The invoice item refers to an “Appearance” at the hearing and charges $3,060. There is no basis for such a charge on Ms Zelman, since nobody appeared at the Commission on her behalf as a lawyer or paid agent. There is no arguable case of error in relation to this item. Whether the person who accompanied Ms Zelman at the hearing argued with the Deputy President, as asserted by Ms Zelman, is beside the point.
[23] Ms Zelman’s oral submissions in support of her grounds of appeal make it apparent that she is aggrieved by the conduct of the respondent in relation to her unfair dismissal application and the respondent’s failure to comply with the order for compensation made by the Deputy President. Whilst we do not condone the conduct of the respondent, we find no reasonably arguable case of error in the decision of the Deputy President that satisfy us that the grant of permission to appeal would be in the public interest. Nor does the appeal raise any question of importance or general application that might attract the public interest.
[24] Ms Zelman’s appeal grounds are not reasonably arguable, and we are not satisfied that the grant of permission to appeal would be in the public interest. Accordingly, permission to appeal must be refused as required by s 400(1).
VICE PRESIDENT
Appearances:
Z. Zelman on her own behalf.
G. Raines on his own behalf.
Hearing details:
2020.
Sydney:
6 July.
Printed by authority of the Commonwealth Government Printer
<PR721716>
1 [2020] FWC 2778
2 Ibid at [51]
3 [2020] FWC 5
4 Ibid at [80]
5 [2020] FWC 647
6 PR716998
7 [2020] FWC 2778, [4]-[20]
8 Ibid [26]-[29]
9 Ibid [41]
10 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
11 Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [43]
12 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, (2011) 192 FCR 78, (2011) 207 IR 177 at [44]-[46]
13 [2010] FWAFB 5343, 197 IR 266
14 Ibid at [27]
15 Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30]
16 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28] affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
18 Gugiatti v SolarisCare Foundation Ltd[2016] FWCFB 2478 at [43]
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