[2019] FWC 5373 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Loi Toma
v
Workforce Recruitment and Labour Services Pty Ltd
(U2018/2283)
DEPUTY PRESIDENT DEAN |
SYDNEY, 9 AUGUST 2019 |
Application for costs – application adjourned.
[1] On 5 March 2018, Mr Loi Toma made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 in relation to the termination of his employment by Workforce Recruitment and Labour Services Pty Ltd (the Application).
[2] In a decision 1 issued on 11 March 2019, Senior Deputy President Hamberger dismissed the Application (the Decision). Mr Toma appealed the Decision.
[3] On 28 March 2018 Workforce Recruitment and Labour Services Pty Ltd (Workforce) filed an application for costs against Mr Toma pursuant to ss.400A and 611 of the Act (the Workforce Costs Application).
[4] On 18 June 2019, a Full Bench of this Commission refused to grant Mr Toma permission to appeal the Decision 2 (the Appeal Decision). A further application for costs has been made by Workforce in relation to the Appeal Decision and this is dealt with in a separate decision.
[5] Mr Toma subsequently made application to the Federal Court of Australia seeking judicial review of the Appeal decision (Federal Court proceedings).
[6] On 15 July, 2019 Mr Toma made an application for costs pursuant to s.401 of the Act against the paid agent who represented Workforce in the proceedings (the Toma Costs Application).
[7] Both Costs Applications were listed on 24 July 2019.
The Toma Costs Application
[8] The Toma Costs Application was made outside the 14 day time limit prescribed in s.402 of the Act. Workforce sought that the Commission dismiss the Toma Costs Application, given the Act makes no provision for the time limit to be extended. The parties were given an opportunity to be heard in relation to issue. After hearing from the parties, I decided that I would dismiss the Toma Costs Application as it was not made in accordance with the Act.
The Workforce Costs Application
[9] The Commission heard from the parties as to whether, in the circumstances, the Workforce Costs Application should be adjourned pending the determination of the Federal Court proceedings.
[10] Mr Toma submitted that the Workforce Costs Application should be adjourned until the Federal Court Proceedings were concluded.
[11] Workforce argued that its costs application should be dealt with as soon as practicable, because it was inevitable that if its application was successful and costs were awarded, Mr Toma would appeal, and it was preferable that all appeals be dealt with by the Federal Court together.
[12] Having considered the submissions made by the parties, I have decided to adjourn these proceedings until the Federal Court Proceedings have been concluded. I consider it is inappropriate to progress the Costs Application in these circumstances, as to do so could result in the awarding of costs that may have to be repaid depending on the outcome of the Federal Court Proceedings. It follows that I do not consider the submissions made by Workforce to be sufficiently persuasive as to outweigh the reason why it is more appropriate to adjourn the proceedings.
Conclusion
[13] The Workforce Costs Application is adjourned pending the determination of the Federal Court Proceedings.
DEPUTY PRESIDENT
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