[2015] FWC 4787
The attached document replaces the document previously issued with the above code on 7
August 2015.
Correction to Hearing details.
Renee Mooney
Associate to Commissioner Bissett
Dated 7 August 2015
1
Fair Work Act 2009
s.394—Unfair dismissal
Helen Miles
v
Colmar Brunton Pty Ltd
(U2014/15713)
COMMISSIONER BISSETT MELBOURNE, 7 AUGUST 2015
Application for relief from unfair dismissal - s.611 application for costs.
[1] On 8 May 2015 I handed down a decision ex tempore in which I dismissed Ms Miles’
application for unfair dismissal remedy on jurisdictional grounds. In particular I decided not
to grant Ms Miles an extension of time in which to lodge the application in the absence of
exceptional circumstance (the primary matter).
[2] At the commencement of the proceedings in the primary matter I granted the
Respondent permission be represented by a lawyer or paid agent pursuant to s.596(2)(a) of the
Fair Work Act 2008 (the Act) taking into account the complexity of the matter. Ms Miles
represented herself.
[3] On 21 May 2015 Colmar Brunton Pty Ltd (the Respondent) made an application for
costs pursuant to s.611(2)(b) of the Act against Ms Miles. The application is within time and
opposed. At the hearing for costs both parties were represented.
Legislative provisions
[4] Section 611 of the Act states:
611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the
costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first
person responded to the application, vexatiously or without reasonable cause;
or
[2015] FWC 4787
DECISION
E AUSTRALIA FairWork Commission
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(b) the FWC 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: The FWC can also order costs under sections 376, 400A, 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).
[5] The interpretation of s.611(2)(b) was considered by a Full Bench of the Commission
in Qantas Airways Limited v Carter1 where it found:
[19] We now turn to s.611(2)(b). The approach to be taken to considering whether
such a finding should be made is summarised in the decision of the Full Bench in
Baker v Salva Resources Pty Ltd (Baker). The relevant extract is as follows:
“The concepts within s.611(2)(b) “should have been reasonably apparent” and
“had no reasonable prospect of success” have been well traversed:
“should have been reasonably apparent” must be objectively
determined. It imports an objective test, directed to a belief formed
on an objective basis rather than a subjective test; and
a conclusion that an application “had no reasonable prospect of
success” should only be reached with extreme caution in
circumstances where the application is manifestly untenable or
groundless or so lacking in merit or substance to be not reasonably
arguable.”
[20] It is clear from the terms of s.611 of the Act that the point at which the
Commission must determine whether or not Qantas' application to appeal was
vexatious, without reasonable cause or had no reasonable prospect of success, is when
Qantas made the application to appeal.
[Footnotes omitted]
[6] Considering the wording of s.611(2)(b) and the above Full Bench decision it is clear
that I need only consider whether it should have been reasonably apparent to Ms Miles, on an
objective basis, that her application had no reasonable prospects of success at the time of
lodgement of her application on 4 December 2015. The test is an objective test of what should
have been reasonably apparent to Ms Miles, not to other parties to the proceedings.
[7] It is only if the requirements of s.611(2)(b) are met, that it is possible for me to
exercise my discretion as to cost.
[2015] FWC 4787
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Background
[8] Ms Miles commenced her employment with the Respondent on or about 5 October
2013 as a casual Market Research Interviewer. Ms Miles’ final shift occurred in the fortnight
ending 7 March 2014, being 5 months after she first worked for the Respondent.
[9] Ms Miles was offered work based on her availability, the level of work and the type of
work available. Ms Miles’ evidence in the primary proceedings was that the Respondent
requires interviewers to work a minimum of three shifts each week and that interviewers were
required to indicate their availability to work in any week on the Wednesday in the preceding
week. The interviewers were then required to be available for shifts allocated by the
Respondent but that, with appropriate notice, shifts could be cancelled.
[10] Ms Miles’ evidence is that until Christmas 2013 she worked the minimum shifts, had
very few cancellations and that the process of shift allocation flowed smoothly.2 Around
February to March 2014 Ms Miles became disgruntled with the Respondent and her direct
manager as her shifts declined. She believed less experienced, cheaper staff were allocated to
shifts over her. As a result, in mid-March, Ms Miles stopped providing her availability for
shifts to the Respondent. She advised her supervisor that they could contact her if they had
work as she did not want to keep being available for this type of work when she was not
guaranteed the shifts.
[11] In early November 2014, some 8 months later, Ms Miles contacted the Respondent to
indicate she was available for weekend shifts.3 On 20 November 2014 Ms Miles received an
email indicating that she was no longer employed by the Respondent. Her name had been
removed from the system as she had not been available for work for 3 months or more. Ms
Miles lodged her application for unfair dismissal within 21 days of receipt of the email.
[12] Ms Miles represented herself in the unfair dismissal proceedings. She did however
seek out free legal advice on at least three occasions, including participation in the
Commission’s pro-bono program. On the first and only relevant occasion, prior to lodging her
application, Ms Miles sought assistance through the Law Institute of Victoria where she spoke
to a Solicitor. This occurred in or around July or August 2014.
[13] Although Ms Miles’ evidence generally is not clear, I accept her evidence that she
sought legal advice because she was concerned about her treatment by the Respondent, not
only in not being contacted for shifts but also because of her belief that it was hiring lower-
paid workers. I also accept her evidence that the advice from the Solicitor was limited as Ms
Miles did not have her paperwork with her. I also accept that during this period she was not
certain if she was still ‘on the books’ with the Respondent or that she had been dismissed. I
accept that the legal advice given to Ms Miles at this time did not address her prospects of
success in an unfair dismissal matter before the Commission.
[14] Ms Miles sought further legal advice after she made her application for unfair
dismissal – once just prior to conciliation and then prior to the jurisdictional hearing where
she was advised she had little prospect of being able to show she had six months continuous
employment. As this advice was received after she made her application for unfair dismissal it
is not relevant in determining what she knew when she made her application.
[2015] FWC 4787
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[15] When Ms Miles lodged her application for unfair dismissal on 4 December 2014 she
had not worked for the Respondent since 7 March 2014 as she had not provided the
Respondent with her availability. Further, at the time she ceased providing her availability she
had only worked for the Respondent for 5 months.
Should I award costs?
[16] I am satisfied that it should have been reasonably apparent to Ms Miles that her
application had no reasonable prospects of success at the time she made the application. Ms
Miles however had obtained no relevant legal advice at the time she made her application
such that someone might have advised her on the consequences of not having worked for, or
made herself available for work for, the Respondent for some five months. It is apparent that
she took no steps, in the five month period, to clarify her status with the Respondent.
[17] Any cursory examination of materials on the Commission’s website in relation to
unfair dismissal would have alerted Ms Miles to the difficulty her application would have in
succeeding. On the basis of the evidence in the primary matter I am satisfied that Ms Miles
pursued her application in an attempt to expose what she considered to be improper work
practices of the Respondent in its employment practices in addition to her belief that she had
been unfairly dismissed.
[18] The Commission is seen, generally, as a jurisdiction in which the parties bear their
own costs although there are circumstances where the Commission may award costs against
one party or another. It is often the case that an application for costs under s.611(2)(b) will be
against an unrepresented applicant who has little experience in the jurisdiction and little
access to legal advice prior to making an application.
[19] Ms Miles genuinely believed that she had been unfairly dismissed. This however
needs to be balanced against her failure to undertake even the most basic research before
making her application.
[20] An Applicant has a right to pursue their application in the Commission. At the time
Ms Miles received advice as to her prospects of success it was well after her application was
made. Whilst she could have made a decision at this point to nor pursue her application this is
not a matter I need to take into account in deciding if costs should be awarded.
[21] On any objective view Ms Miles should have known, had she done the most basic of
research, that, at the time she made her application, it had no reasonable prospect of success.
[22] The award of costs, even if the circumstances in s.611(2)(b) have been met, is
however discretionary.
[23] In reaching my decision I am mindful that Ms Miles believed she had made herself
available for work but none had been offered; was not represented in the proceedings; and had
not sought any specific advice on making an unfair dismissal application prior to making her
application. Ms Miles was passionate, if misguided, about both her unfair dismissal
application and her claim for a breach of the award (with respect to the lower paid workers).
[24] I am also mindful of the evidence and submissions of Ms Miles as to her parlous
financial position.
[2015] FWC 4787
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[25] For these reasons I have decided to exercise my discretion to not award costs. I make
this decision taking taken into account all of the evidence and my findings set out in this
decision.
[26] Ms Miles should not take this decision as a vindication of the actions she took. She
would be well minded to take more care before embarking on such a course again.
COMMISSIONER
Appearances:
S. Fitzgerald of Counsel for the Applicant.
A. Maher with P. Tolich of HR Legal for the Respondent.
Hearing details:
2015.
Melbourne:
June 25.
1 [2013] FWCFB 1811.
2 Exhibit A1 paragraph 5.
3 Exhibit Miles1 paragraph 5.
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M$ THE FAIR WORK APOTRA SSION THE
