[2013] FWCFB 1811 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Qantas Airways Limited
v
Mr Paul Carter
(C2011/6900)
SENIOR DEPUTY PRESIDENT HARRISON |
SYDNEY, 27 MARCH 2013 |
Appeal against decision [2011] FWA 8025 of Commissioner Spencer at Brisbane on 25 November 2011 in matter number U2009/11888, application for costs.
[1] This decision concerns an application for costs which has been made under s.611 of the Fair Work Act 2009 (the Act). Mr Carter seeks an order for costs against Qantas Airways Limited (Qantas) in respect of an appeal which Qantas filed against a decision of a single member in respect of an unfair dismissal application. Mr Carter's application is based on each of the grounds in s.611 by reference to which the Fair Work Commission (the Commission) may exercise its discretion to make such an order. The application has some background which we will summarise shortly. Before we do so it is appropriate that we reproduce s.611. It is in these terms:
“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
(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)”.
[2] The reference to s.400A in the first note in s.611 is not relevant to this decision. 1
Background
[3] Mr Carter filed an application for an unfair dismissal remedy under s.394 of the Act. The application proceeded to a hearing before Commissioner Spencer. In her decision 2 the Commissioner decided there was no valid reason for Mr Carter's dismissal and that his dismissal was harsh, unjust and unreasonable. An order for reinstatement was made but not for any payment in respect of lost wages.
[4] Qantas appealed the Commissioner's decision. This Full Bench heard that appeal and decided that the Commissioner was in error in failing to find that Qantas had a valid reason to dismiss Mr Carter. Despite finding error in that respect we found that no other error had been established by the grounds of appeal. We were not persuaded that it was in the public interest to grant permission to appeal 3.
[5] Mr Carter filed applications seeking costs in relation to both the proceedings at first instance before Commissioner Spencer and in respect of the appeal before us.
The stay proceedings
[6] Qantas made an application for a stay of the order of Commissioner Spencer and that matter was heard by Senior Deputy President Harrison. A decision was made that Qantas had an arguable case that permission to appeal, in the public interest, should be granted. It also had an arguable case that the Commissioner was in error in finding that there was no valid reason and that the dismissal was harsh, unjust and unreasonable. A stay order was made.
The appeal decision
[7] We now turn to our reasons for decision concerning the appeal which was lodged by Mr Carter. It is appropriate we summarise those reasons in some detail but in doing so we concentrate on the findings relevant to the application for costs.
[8] We commence by observing that Commissioner Spencer’s reasons for decision were detailed and addressed numerous issues which were raised by the parties. The case before the Commissioner was one in which both parties called a number of witnesses and tendered a great deal of documentary evidence.
[9] Mr Carter was a long serving employee having commenced employment in 1985. At the time of his dismissal he was engaged as a customer service agent at the Qantas domestic terminal at Brisbane airport.
[10] Mr Carter was dismissed for making changes to flight bookings in a manner Qantas considered to have been unauthorised and in breach of its fare rules. Despite some areas of disagreement about the detail concerning particular bookings Mr Carter accepted that he had made the changes to a large number of the bookings as asserted by Qantas. There was no evidence that Mr Carter had acted in a fraudulent or dishonest way in making the numerous changes to the bookings nor obtained any benefits for providing upgrades to passengers. Mr Carter's case was that he, and other customer service agents, had authority to rebook passengers and to do so without collecting additional fees. It was the "established culture" to rebook passengers if and when required and in doing so he did not need to seek any authorisation from a more senior officer. 4
[11] We found that the Commissioner was in error in taking into account a number of diverse matters (which we referred to in our decision but do not reproduce here) for the purposes of considering under s.387(a) whether Qantas had a valid reason to dismiss Mr Carter. The Commissioner had found there had been no operational reason for him to have made the changes he did. We considered this finding was not given sufficient weight by the Commissioner. We also found that insufficient weight had been given to the fact that a number of the changes were made when the customer was not flying into or out of Brisbane airport and where some changes had been made outside the 12 month period of the ticket or were made weeks or months in advance of the proposed travel date. All of that evidence, in our opinion, supported a finding that Qantas had a valid reason to dismiss Mr Carter. It was a reason which could properly be described as sound, defensible or well founded. We found that in finding to the contrary the Commissioner was in error. 5
[12] We referred to a number of other grounds of appeal raised by Qantas and said we were not persuaded they established any appealable error. In summary, they concern challenges to the Commissioner's findings that Mr Carter’s conduct did not constitute serious misconduct, that there was no evidence of Qantas monitoring customer service agents previously, that Qantas should have allowed Mr Carter to have his legal adviser present at the meeting when he was dismissed, about findings relevant to the misconduct and discipline policy and the employee appeals policy, about alternatives that should have been considered to dismissing Mr Carter and about Qantas associating Mr Carter with other persons who had undertaken fraudulent activities.
[13] Qantas also argued that certain findings of fact made by the Commissioner amounted to significant errors of fact. We dismissed each of these grounds finding that they did not establish any relevant appealable error.
[14] In conclusion, we noted that despite our finding that the Commissioner was in error in relation to her finding about whether Qantas had a valid reason to dismiss Mr Carter no other error had been established by the grounds of appeal. We ruled that we were not persuaded that permission to appeal should be granted as no public interest considerations had been enlivened.
[15] Although we have thus far referred to the appeal by Qantas there was in fact also a cross appeal filed by Mr Carter. That appeal was lodged over two months after the Qantas appeal had been lodged, it was significantly outside the time limit for filing of an appeal and no advance notice had been given to Qantas or the Commission that it would be filed. 6 We found that there were no adequate grounds to explain the reason for the delay and we declined to exercise our discretion to extend the time for filing.
[16] We indicated earlier that Mr Carter had sought an order for costs both in respect of the proceedings before Commissioner Spencer as well as the appeal proceedings. The Commissioner has published a decision in relation to the application before her. She was not satisfied that Mr Carter had established any of the grounds in s.611 of the Act such as to warrant her exercising her discretion to award costs. 7 As the Commissioner's decision was published after the application for costs before us was made, and neither party sought to make any submissions subsequently we do not need to refer to the decision in any detail. It is sufficient to observe that before Commissioner Spencer, Mr Carter sought to rely on both subsections 611(2)(a) and 611(2)(b). From a reading of the Commissioner's decision it is clear that to a significant degree the written submissions and the documentation filed by Mr Carter before her is the same as that filed in support of his application before this Full Bench.
[17] We refer to the approach we have taken to considering if the provisions of s.611(2)(a) or s.611(2)(b) are established. We first deal with the application made on the basis that Qantas has made its appeal vexatiously. The approach generally taken by members of the Commission as to the meaning to be ascribed to the word “vexatiously” in s.611(2)(a) is to adopt the comments of Justice North in Nilsen v Loyal Orange Trust 8 (Nilsen). Nilsen was decided in 1997 when the then Workplace Relations Act 1996 applied however the relevant provision considered by his Honour was in terms similar to s.611(2)(a) being whether an applicant “instituted the proceeding vexatiously or without reasonable cause”. About this provision his Honour said:
“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage.”
[18] The approach we have taken to whether Qantas instituted its appeal without reasonable cause, is to consider whether at the time of instituting the appeal there was no substantial prospect of success. 9
[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) 10. 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.
[21] We have considered all of the submissions made by Mr Carter and the large number of documents filed with those submissions. We have also considered the witness statement filed by him in which he deposes to the effect his dismissal has had in relation to his personal well-being, the impact on his family and on his financial circumstances. Despite the undoubted adverse consequences this litigation has had on Mr Carter we are not satisfied that the matters deposed to in his affidavit are relevant to of s.611 of the Act. Accordingly, we do not need to further consider whether we should admit the statement as evidence in support of this application or to provide an opportunity to Qantas to cross-examine Mr Carter about the matters asserted in it.
[22] We are not satisfied that any adequate basis has been made out for a finding that Qantas made its appeal either vexatiously or without reasonable cause. The Commissioner at first instance had made a number of findings critical of Mr Carter. She said she had difficulty accepting his explanation as to his asserted ignorance of the fare rules and fare categories. She said his evidence in this respect was “difficult to reconcile” and “difficult to comprehend”. She also said that his conduct in changing bookings in breach of the fare rules “which should have been known to him cannot be condoned”. 11 As we have earlier noted, she found he had no operational reason to have made the very large number of changes to bookings that he did. Based on these findings the argument by Qantas that it did have a valid reason to dismiss Mr Carter was clearly a matter which established, at least, an arguable case of appealable error. Those considerations in turn were relevant to the finding as to whether the dismissal was harsh, unjust or unreasonable. Again, it could not be argued that Qantas, at the time it instituted is appeal, did not have an arguable case that when all the circumstances of Mr Carter's actions were considered, together with the explanations he gave for them, that the dismissal was not unfair.
[23] The considerations we have referred to above are also relevant to a consideration of whether the circumstances in s.611(2)(b) were made out. We are not persuaded that on an objective basis it should have been reasonably apparent that, at the time Qantas made its appeal, it had no reasonable prospect of success.
[24] There is no objective basis established for us to find that Qantas had any other purpose in filing its appeal than to legitimately pursue its rights of appeal. We are not persuaded there was any objective evidence to support the submission made by Mr Carter that Qantas had engaged in a strategy designed to destroy him and "bleed him financially and emotionally." 12
[25] We should here refer to a number of submissions made by Mr Carter that are highly critical of certain persons who are employees of Qantas or solicitors acting on its behalf. Similar submissions were made to Commissioner Spencer in the decision below as well as in the application before her for costs. It is relevant to note that the Commissioner made no findings adverse to the credit of any of the witnesses called by Qantas nor that their evidence was untruthful. The Commissioner did not make any adverse findings against Qantas in relation to the manner in which it had conducted the proceedings at first instance, neither did we on appeal.
Conclusion
[26] The mere fact that permission was not granted by us does not enliven the jurisdiction to award costs under s.611(2). 13 Even when the jurisdiction is enlivened an award of costs is still in the discretion of the Commission. We are not persuaded that the appeal was made vexatiously or without reasonable cause. We are also not satisfied that it should have been reasonably apparent to Qantas that its appeal was not reasonably arguable or had no reasonable prospect of success. Its appeal could not have been categorised as manifestly untenable or groundless.
[27] The application for costs is dismissed.
SENIOR DEPUTY PRESIDENT
1 This section was introduced into the Act subsequent to the application being made and does not apply to it
4 Paragraphs [6] to [11], [18]
5 Paragraph [36] to [40]
6 Ibid at paragraphs 59 and 60.
8 [1997] 76 IR 180 at 181
9 [1997] IR 180 at 181, Henderson and Mainpoint Enterprises Pty Limited Q3750
10 [2011] FWAFB 4014 at paragraph [10]
11 Paragraphs [70], [74] and [110]
12 Paragraph [52] of Mr Carter’s submissions
13 See eg Balfours Bakery and B.Cooper [2012] FWAFB 1599 at paragraph [6]
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