1
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Raylene Oui
v
Townsville Aboriginal & Torres Strait Islander Corporation Health
Services
(C2012/5391)
SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT BOOTH
COMMISSIONER BULL SYDNEY, 12 AUGUST 2013
Appeal against decision [2012] FWA 2713 of Commissioner Simpson at Brisbane on 31
August 2012 in matter number U2011/13631, application for costs order.
[1] This decision concerns an application by Townsville Aboriginal & Torres Strait
Islander Corporation Health Services (THS) for a costs order. The application relates to an
appeal which was made by Ms Oui against an unfair dismissal decision and order of
Commissioner Simpson. THS seeks an order for costs against Ms Oui under s.611 of the Fair
Work Act 2009 (the Act) and an order under s.401 against Ms Oui’s representative, Mr
O’Donnell.
The background to the application
[2] We should briefly refer to the background to the application. Ms Oui issued
proceedings pursuant to s.394 of the Act seeking an unfair dismissal remedy. THS had
summarily terminated her employment on the ground of gross misconduct. The
Commissioner found that the breaches THS had relied upon as constituting that misconduct
were not established on the evidence. None of them, alone or together, constituted a valid
reason for the dismissal of Ms Oui, let alone summary dismissal. The Commissioner did find
that at the time of Ms Oui’s dismissal there were concerns about her performance; it had been
unsatisfactory. This finding was made in the context of those performance issues not being
relied upon by THS in arriving at its decision to dismiss Ms Oui. Furthermore, as at the time
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DECISION
E AUSTRALIA FairWork Commission
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of her dismissal, any unsatisfactory performance issues had not been the subject of a
disciplinary process.
[3] The Commissioner made adverse findings against THS for failing to adequately notify
Ms Oui of the reasons for her dismissal or to give her an opportunity to respond. Although he
made no express finding that the dismissal was harsh, unjust or unreasonable, a fair reading of
his decision reflects that he had reached that conclusion. He considered the appropriate
remedy to be granted. The Commissioner observed that Ms Oui had confirmed she was not
seeking reinstatement but compensation. He made a finding that it was unlikely she would
have continued employment beyond a further period of six weeks. A deduction was made on
the basis that Ms Oui had spoken to another employee in an inappropriate manner which had
given rise to a grievance process and had contributed to the decision to dismiss her. Ms Oui
appealed the Commissioner’s decision.
[4] The appeal was listed for mention before the Presiding Member for the purposes of
addressing relief from filing complete appeal books and clarification of the scope of matters
put in issue by the one ground which was pleaded in the notice of appeal. Mr O’Donnell
indicated that the key complaint related to the order for compensation. He said no adequate
opportunity was given to Ms Oui to be heard on the amount and the amount ordered was
inadequate. We acknowledge the submission of THS that the notice of appeal could have been
pleaded with more particularity but we consider it appropriate to give some recognition to the
fact it was not drafted by experienced legal advisers and the nature of the challenge raised was
described by Mr O’Donnell in the mention hearing.
[5] Subsequently, Mr O’Donnell made a telephone call to the Presiding Member’s
chambers and requested approval for him to participate in the hearing of the appeal by
telephone. The appeal had been listed for hearing in Brisbane. No notice of this request was
given to THS. The request was refused and confirmation was given that the matter would
proceed to hearing in Brisbane at the time allocated in the notice of listing.
[6] When the matter came on for hearing there was no appearance by either Ms Oui or Mr
O’Donnell. THS was represented by counsel. Enquiries were made by way of a telephone call
to Mr O’Donnell’s mobile phone number. We do not propose to repeat the detail of a
discussion that was then had, it is referred to in the decision we issued subsequent to the date
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the appeal had been set.1 It is sufficient for current purposes to record that Mr O’Donnell
advised that neither he nor Ms Oui would be attending the appeal hearing. It seems that Mr
O’Donnell had believed that when his request to participate in the appeal hearing by
telephone was refused it should have been clear to the Commission that he would not be
pressing the appeal any further. As the Full Bench decision notes this was not clear at all. We
made a number of comments critical of Mr O’Donnell’s handling of this appeal. We also
recorded the difficulty that there had been in contacting him and his failure to keep his contact
details current. For the reasons we later give, it is not relevant to our consideration of the costs
application to deal any further with these unsatisfactory aspects of how Ms Oui’s appeal was
prosecuted.
The legislation
[7] The terms of ss.401 and 611 (as at the time this application was made) read as
follows2:
“401 Costs orders against lawyers and paid agents
(1) If FWA has granted permission in accordance with section 596 for a person to be
represented by a lawyer or paid agent in a matter arising under this Part before FWA,
FWA may make an order for costs against the lawyer or paid agent if FWA is
satisfied:
(a) that:
(i) the lawyer or paid agent caused costs to be incurred by the other
party to the matter because the lawyer or paid agent encouraged the
person to start or continue the matter; and
(ii) it should have been reasonably apparent that the person had no
reasonable prospect of success in the matter; or
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(b) that the lawyer or paid agent caused costs to be incurred by the other party
to the matter because of an unreasonable act or omission of the lawyer or paid
agent in connection with the conduct or continuation of the matter.
(2) FWA may make an order under this section only if the other party to the matter
has applied for it in accordance with section 402.
(3) This section does not limit FWA’s power to order costs under section 611.”
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all of the
costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first
person responded to the application, vexatiously or without reasonable cause;
or
(b) FWA is satisfied that it should have been reasonably apparent to the first
person that the first person’s application, or the first person’s response to the
application, had no reasonable prospect of success.
Note: FWA can also order costs under sections 376, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the
order.
Note: This subsection is a civil remedy provision (see Part 4-1).”
Consideration and conclusion
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[8] In the case of the application for an order against Ms Oui, THS relied on both
ss.611(2)(a) and 611(2)(b). It submitted that she had made her application to appeal without
reasonable cause and that it should have been reasonably apparent to her that her appeal had
no reasonable prospect of success. In each case it was said that the notice of appeal did not
disclose any cause of action, did not identify error and did not establish how the public
interest was attracted. As we have earlier noted the application for costs against Mr O’Donnell
was based on s.401 of the Act. Written submissions in support of the application were filed
by THS and it requested the matter be dealt with on the papers. Mr O’Donnell filed
submissions on behalf of Ms Oui and himself. Three statements were annexed to his
submissions. They were from Ms Oui, Mr O’Donnell and a Mr Ahern. Mr O’Donnell agreed
for the matter to be dealt with on the papers. THS filed written submissions in reply.
[9] We deal first with the application for costs directed to Mr O’Donnell. Based on the
submissions and statements filed in respect to the application for costs we accept that Mr
O’Donnell is not a lawyer. In representing Ms Oui he neither charged nor received a fee for
doing so, accordingly, he is not a paid agent.3 In the event we made this finding THS
indicated that it would not press for an order against Mr O’Donnell. We need consider that
matter no further.
[10] The application for costs against Ms Oui relies on both ss.611(2)(a) and 611(2)(b).
The approach to be taken to each of the sections is addressed in the submissions for THS.
Those submissions are consistent with the approach taken to applications under s.611 most
recently addressed in Qantas Airways Limited v Carter.4 The time at which we are to apply
the considerations in s.611 is when Ms Oui made her application to appeal.
[11] We know from the documentation filed by Mr O’Donnell that Ms Oui was advised
that she had not received a fair outcome in her unfair dismissal application and that the
Commissioner had not properly calculated the amount that should have been paid to her. It is
a fair inference to draw from the documentation that she was informed that an appeal would
be lodged to try and increase the monetary remedy granted. Ms Oui said she was encouraged
to file an appeal. It is also clear that she left it to Mr O’Donnell to file and prosecute that
appeal.
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[12] We accept the submission of THS that the notice of appeal is lacking in detail.
However, as we have earlier noted, it was not drawn up by a lawyer nor an experienced paid
agent. It does however indicate that the decision appealed is “The Compensatory Amount
Awarded” and the one ground is that “The Commissioner erred in arriving at his conclusion.”
The public interest is said to be enlivened by the fact Ms Oui was “not allowed to present her
case fully.” It was these matters which were raised by Mr O’Donnell in the mention hearing
when he was asked to identify what the key issues in the appeal were.
[13] We have considered the reasons for decision published by the Commissioner and the
transcript of proceedings before him. The issue of compensation was barely raised in the
hearing. Subsequent to the hearing written submission were filed on Ms Oui’s behalf and by
THS. Ms Oui’s submissions did not address compensation at all. In that part of THS’s
submission which dealt with the issue of remedy it said that any amount that might be
awarded should be discounted on account of the conduct of Ms Oui. Little more was said. We
were not taken to any other transcript or written submission that dealt with the amount of
compensation which may be appropriate and any deductions that may be justified. We think
it at least arguable in those circumstances that Ms Oui was not given an adequate opportunity
to be heard on those matters. Accordingly, at the time the appeal was made, we are not
persuaded Ms Oui instituted it without reasonable cause nor that it should have been
reasonably apparent the appeal had no reasonable prospect of success.
[14] We have considerable sympathy for the position THS finds itself in. It has incurred
legal costs in circumstances that should not have occurred. It should have been given adequate
and proper warning that the appeal was not to be prosecuted on the day allocated for the
hearing. Had that occurred its costs would have been significantly reduced. For the reasons
we have given however we are required to apply the considerations in s.611 as at the time the
appeal was made.
[15] We dismiss each of the applications for an order for costs.
SENIOR DEPUTY PRESIDENT
[2013] FWCFB 5541
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Price code C, PR540012
1 [2013] FWCFB 283.
2 Amendments have been made to these sections but the amendments do not apply to dismissals that occurred at the date of
Ms Oui’s.
3 Section 12 defines “lawyer” and “paid agent”.
4 [2013] FWCFB 1811.
