1
Fair Work Act 2009
s.604 - Appeal of decisions
Jeremy Ryman
v
Thrash Pty Ltd t/a Wisharts Automotive Services
(C2015/4591)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT KOVACIC
COMMISSIONER BISSETT SYDNEY, 4 APRIL 2016
Appeal against decision [2015] FWC 3942 of Commissioner Cambridge at Sydney on 12
June 2015 in matter number U2015/33.
[1] On 5 January 2015 Mr Jeremy Ryman made an application for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination of his
employment with Thrash Pty Ltd trading as “Wisharts Automotive Services” (Wisharts). In a
decision issued on 12 June 20151 (First Decision), Commissioner Cambridge dismissed this
application on the basis that Wisharts was a small business to which the Small Business Fair
Dismissal Code (Code) applied, that Mr Ryman’s dismissal was a summary dismissal, and
that the dismissal accorded with the summary dismissal requirements of the Code. Mr Ryman
then applied for permission to appeal and appealed the Commissioner’s decision. In an ex
tempore decision issued on 25 August 2015, this Full Bench granted permission to appeal.
After receiving written submissions in relation to the full appeal, we issued a decision on 18
December 20152 (Appeal Decision) in which we upheld the appeal, quashed the First
Decision, and re-determined Mr Ryman’s unfair dismissal remedy application by dismissing
it.
[2] Wisharts has now made an application for Mr Ryman to pay its costs of the hearing
before the Commissioner and on appeal. The application is made pursuant to s.611(2) of the
FW Act. Section 611(1) establishes a general rule that parties in proceedings before the
Commission must bear their own costs. Section 611(2) operates as an exception to this
general rule, and provides:
(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:
1 [2015] FWC 3942
2 [2015] FWCFB 5264
[2016] FWCFB 1638
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 1638
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(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
(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.
[3] The relevant principles concerning the interpretation and application of s.611(2)(a)
were comprehensively stated in Church v Eastern Health t/as Eastern Health Great Health
and Wellbeing3 and may be summarised as follows:
An application is made vexatiously when the predominant motive or purpose of
the applicant is to harass or embarrass the other party or to gain a collateral
advantage.
An application is not made without reasonable cause simply because the
application did not succeed.
Whether an application is made without reasonable cause may be tested by
asking, on the facts apparent to the applicant at the time the application was made,
whether there was no substantial prospect of success.
If success depends upon the resolution in the applicant’s favour of one or more
arguable points of law, it is inappropriate to characterise the application as having
been made without reasonable cause.
In relation to an appeal, the question becomes whether the appeal has no
substantial prospect of success. The prospect of success must be evaluated in the
light of the facts of the case, the judgment appealed from and the points taken in
the notice of appeal. If there is a not insubstantial prospect of the appeal achieving
some success, it cannot fairly be described as having been made without
reasonable cause.
An application will have been made without reasonable cause if it can be
characterised as so obviously untenable that it cannot possibly succeed, or
manifestly groundless, or discloses a case which the tribunal is satisfied cannot
succeed.
[4] In relation to s.611(2)(b), the relevant principles were summarised by the Full Bench
in Baker v Salva Resources Pty Ltd4 as follows (footnotes omitted):
“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had
no reasonable prospect of success’ have been well traversed:
3 [2014] FWCFB 810 at [23]-[33]
4 [2011] FWAFB 4014, 211 IR 374
[2016] FWCFB 1638
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‘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 as to be
not reasonably arguable.”
[5] Wisharts submitted that both limbs of s.611(2) were applicable to the proceedings at
first instance and on appeal, and that the discretion to order costs should be exercised in its
favour. Specifically it submitted that:
Mr Ryman’s argument that the summary dismissal provisions of the Code were
not applicable because an amount was paid in lieu of notice and because of the
delay in effecting the dismissal was without merit;
although the Full Bench found in the Appeal Decision that the evidence was not
consistent with Wisharts holding a belief that Mr Ryman’s conduct justified
immediate dismissal, this ultimately had no bearing on the fact that Mr Ryman’s
unfair dismissal remedy application was unsuccessful;
in the First Decision the Commissioner rejected Mr Ryman’s evidence
concerning the 19 December 2014 incident, and there being no challenge to this
finding in the appeal the Full Bench was able to find that Mr Ryman’s dismissal
was not unfair based on Wisharts’ evidence about this incident;
Mr Ryman structured or formulated his evidence to support an application
which, upon closer examination, had no reasonable prospects of success and was
made without reasonable cause;
it was arguable that Mr Ryman fabricated a version of events to support an
application that was designed to harass and embarrass Wisharts and also
plausible that the proceedings were commenced and continued with a degree of
malice and with the intent of retribution, making the application vexatious;
Wisharts, which is a small family business, was put to significant inconvenience,
stress and expense by the proceedings.
[6] We are not satisfied that either limb of s.611(2) has been made out. Three main
questions were raised by Mr Ryman’s unfair dismissal remedy application, including his
appeal:
(1) What were the facts concerning the incident of 19 December 2014?
(2) Did the summary dismissal provisions of the Code apply?
(3) If the Code did not apply, was the dismissal unfair having regard to the matters
identified in s.387 of the FW Act?
[2016] FWCFB 1638
4
[7] In relation to the first question, it is certainly the case that the Commissioner found
that Mr Ryman’s evidence concerning what he said during the 19 December 2014 incident
was “so unrealistic to be fanciful”5, and relied upon the evidence given by Wisharts’
witnesses in making his findings about that incident. It is also the case that there was no
challenge to the Commissioner’s findings in this respect on appeal. However, although the
Commissioner made it clear that he did not consider the difficulties he attributed to Mr
Ryman’s evidence to be the result of imperfect recollection6, he did not go so far as to find
that Mr Ryman maliciously fabricated his evidence. Whilst Mr Ryman’s evidence about the
incident was clearly self-serving rather than objective, not having heard that evidence
ourselves we are not prepared to accept Wisharts’ submission that Mr Ryman deliberately
fabricated his evidence for the malicious purpose of harassing it and seeking retribution.
[8] On the second question, Mr Ryman was ultimately successful in establishing, contrary
to Wisharts’ submissions, that the summary dismissal provisions of the Code were not
applicable. His success in that respect led to his appeal being upheld and the First Decision
being quashed, and required his application to be re-determined by this Full Bench.
[9] On the third question, although in the re-determination of his unfair dismissal remedy
application Mr Ryman was unsuccessful in demonstrating that his dismissal was unfair, it
cannot be said that his case was unarguable on the merits. The following conclusion in the
Appeal Decision makes it clear that it was the small size of Wisharts’ business, rather than the
intrinsic nature of Mr Ryman’s conduct, which was critical to the conclusion that the
dismissal was not unfair (underlining added):
“[60] Having weighed up all the matters required to be considered under s.387, we have
come to the conclusion that Mr Ryman’s dismissal was not harsh, unjust or
unreasonable. Had Mr Ryman’s conduct occurred in the context of a significantly
larger business, we may have come to a different conclusion. In a larger business, Mr
Ryman’s loss of temper on 19 December 2014 followed by his unauthorised absence
on the next two working days may have had little impact on the operation of the
business. However in the context of a very small family business, Mr Ryman’s
conduct had serious consequences. In circumstances where Mr Ryman had irreparably
damaged his personal relationship with the owners of the business, Mr and Mrs
Wishart, and his fellow mechanic Mr Daniel Wishart, and had demonstrated that he
could not be relied upon to attend for work when needed, the conclusion that his
continuing employment was not viable could not be considered to be unfair...”
[10] In the hearing at first instance and on appeal, Mr Ryman was represented by a lawyer
who advanced sound and credible arguments on his behalf. The inference we draw is that Mr
Ryman was seriously pursuing an unfair dismissal remedy. We are certainly not prepared to
infer that he instituted and maintained the proceedings vexatiously for an improper and
collateral purpose. Nor, for the reasons we have stated, do we consider that Mr Ryman
instituted the proceedings without reasonable cause or that it should have been reasonably
apparent that he had no reasonable prospect of success. His case, although ultimately
unsuccessful, was arguable and was attended by a significant degree of success on one of the
major issues.
5 First Decision at [79]
6 Ibid
[2016] FWCFB 1638
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[11] Wisharts’ costs application is therefore dismissed.
VICE PRESIDENT
Final written submissions:
23 December 2015 – Thrash Pty Ltd
19 January 2016 – Ryman
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