[2022] FWC 2597
The attached document replaces the document previously issued with the above code on 27 September 2022.
In paragraph [37], the word “successful” has been replaced with “unsuccessful”.
Associate to Deputy President Clancy
Dated 28 September 2022
| [2022] FWC 2597 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nigel Stock
v
Rocla Ltd
(U2022/307)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 27 SEPTEMBER 2022 |
Application for costs by employer respondent to unfair dismissal claim – costs order sought against applicant pursuant to s.400A and s.611 of the Fair Work Act 2009 – Despite preconditions for an Order having been satisfied, Commission not persuaded to exercise discretion to order costs – discussion regarding role of applicant representative who has appeared in multiple unsuccessful unfair dismissal applications but is not subject to s.401 of the Act – application dismissed.
[1] On 4 January 2022, Mr Nigel Stock applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Rocla Ltd (Rocla).
[2] On 18 March 2022, the matter was allocated to me and I made directions (subsequently amended) for the filing and service of materials. These required Mr Stock to file and serve submissions, statements and supporting documentation on or before 11 April 2022.
[3] On 7 April 2022, Mr Ian Dixon of Ai Group Workplace Lawyers (Ai Group) sent a letter to Mr Stock on behalf of Rocla. In the letter, it was acknowledged that Mr Stock was entitled to his view regarding vaccination and the Government requirements, but they were the law and had to be followed by both Rocla and him. It was also outlined that there had been a number of decisions of the Commission which had involved terminations with the same or very similar circumstances to those of Mr Stock and in each case the termination had been found not to have been harsh, unjust or unreasonable. It was then asserted that it should have been reasonably clear to Mr Stock that there was no reasonable cause for his claim and that it had no reasonable prospects of success and Mr Stock was urged to discontinue his application prior to Rocla having to incur the costs of filing its material. Further, Mr Stock was cautioned that upon a successful defence of the claim, Rocla would make an application for costs, for which he might become liable.
[4] On 11 April 2022, Mr Stock filed and served his material and on 3 May 2022, Rocla filed and served its material in response. Mr Stock’s material in reply was filed and served on 11 May 2022.
[5] On 13 May 2022, the parties participated in a Member-assisted-conciliation before Commissioner Cirkovic but this did not resolve the matter.
[6] On 17 May 2022, a second letter was sent to Mr Stock by Ai Group to “formally” place him on notice that Rocla intended to seek costs against him if his unfair dismissal application was dismissed. This letter included:
• The assertion that Mr Stock’s unfair dismissal application had no reasonable prospects of success;
• An appendix outlining details from six decisions of the Commission in which it was held that a failure to meet requirements of a public health order was a valid reason for termination and the contention that Mr Stock’s case was not distinguishable;
• The assertion that Mr Stock had failed to follow a lawful and reasonable direction and was unable to meet the inherent requirements of his role; and
• An exhortation that Mr Stock discontinue his application immediately.
[7] On 20 May 2022, I heard Mr Stock’s application (Unfair dismissal hearing).
[8] On 26 May 2022, I issued a decision 1 dismissing Mr Stock’s unfair dismissal application, having determined his dismissal was not harsh, unjust or unreasonable, and therefore not unfair.
[9] On 9 June 2022, Rocla filed an application for costs, advancing the following three grounds:
1) It should have been reasonably apparent to Mr Stock that his application had no reasonable prospect of success as contemplated by s.611(2), and on this basis, Mr Stock caused it to incur costs unreasonably and without cause; and/or
2) There was another purpose for the action other than resolving the issues arising from the unfair dismissal application because Mr Stock’s actual grievance lay with the vaccine mandates instituted by the Victorian Government, and he was seeking a decision that they were invalid; and/or
3) Mr Stock’s failure to discontinue his application despite having no reasonable prospects of success was an unreasonable act or omission as contemplated by s.400A.
[10] On 29 June 2022, Rocla filed submissions on costs, which included:
a) It had gone to great lengths to explain to its employees that Victorian Government directions required it collect, record and hold vaccination information and that it was responding to the directions;
b) Mr Stock exercised his right not to be vaccinated, could not work on site having done so and knew his employment would be terminated should he not be vaccinated;
c) Mr Stock’s arguments that his dismissal was unfair because the directions and orders of the Victorian Government were illegal and even if legal, were not applicable to his employment were both groundless and not based in law and with the Commission having already dismissed a number of similar cases, it should have been reasonably apparent to him that his claim had no reasonable prospects of success, as contemplated by s.400A;
d) Mr Stock caused Rocla to incur costs unreasonably and without cause, despite being put on notice of these matters in correspondence and advised that costs would be sought against him should he continue with his unfair dismissal application;
e) Mr Stock was pursuing his application for a purpose other than resolving issues arising from his dismissal;
f) Mr Stock’s failure to discontinue his claim despite having no reasonable prospects of success and being put on notice that costs would be pursued against him should he continue, was an unreasonable act or omission contemplated by s.400A; and
g) As a result of Mr Stock’s decision, Rocla has incurred significant costs in participating in the proceedings.
[11] On 19 July 2022, Mr Stock filed submissions in response, which contended:
a) Rocla had taken it upon itself to engage legal representation with full knowledge that it would bear this cost;
b) Rocla had been put on notice that the directions were illegal and made aware that the COVID-19 vaccines were not approved;
c) Rocla had the choice to either accept or decline “participating in the mandate” and while it accepted, this acceptance did not apply to its employees who chose not to do so;
d) No law exists that permits coercion or pressure to participate in a clinical trial;
e) Irrespective of the outcome at the Commission, there are no grounds for any form of costs order; and
f) With Rocla having “made it clear” that there were no vexatious or malicious actions “in play” from him, to now claim his unfair dismissal application was doomed from the beginning demonstrates “a lack of probity.”
[12] On 26 July 2022, Rocla filed submissions in reply in which it outlined that while it had advised Mr Stock it no longer pressed that the unfair dismissal application had been made vexatiously it had confirmed in its letter dated 7 April 2022 that its view was that it was reasonably clear that the unfair dismissal application had no reasonable prospects of success, Further, Rocla submitted that this was reasonably clear on an objective basis and it did not matter what Mr Stock’s views were in relation to vaccination mandates or the correctness of other Commission decisions.
Consideration
[13] Section 400A of the Act is a departure from the usual rule that parties must bear their own costs in relation to a matter before the Commission and provides as follows:
“400A Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC’s power to order costs under section 611.”
[14] Section 400A was inserted into the Act by virtue of the Fair Work Amendment Act 2012. It is useful to outline the following from the Explanatory Memorandum to the Fair Work Amendment Bill 2012:
“168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.
169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.
171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.” 2
[15] The Full Bench of the Commission in Gugiatti v SolarisCare Foundation Ltd (Gugiatti), 3 stated:
“Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.” 4
[16] As s.400A(3) of the Act makes clear, s.400A does not limit the Commission’s power to order costs under s.611. Section 611, while stating that parties must bear their own costs, also provides for exceptions, relevantly outlining:
“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.”
[17] In Church v Eastern Health t/as Eastern Health Great Health and Wellbeing (Church), 5 the Full Bench considered the approach to be taken in determining whether proceedings have been instituted vexatiously or without reasonable cause. With Rocla ultimately not submitting that Mr Stock made his unfair dismissal application vexatiously, it is only necessary to consider what the Full Bench outlined in relation to the expression ‘without reasonable cause’:
“A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union, Wilcox J put it this way:
“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, 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 stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”” 6 (References omitted)
[18] In Church, the Full Bench outlined principles to be applied in deciding whether an application has been made without reasonable cause. These were summarised in Keep v Performance Automobiles Pty Ltd (Keep), 7 as follows:
“The proper construction of s.611(2)(a) was recently considered by a Full Bench in Church v Eastern Health t/as Easter[sic] Health Great Health and Wellbeing (Church). Church is authority for the following propositions:
(i) The power to order costs pursuant to s.611(2) should be exercised with caution and only in a clear case.
(ii) A party cannot be said to have made an application ‘without reasonable cause’ within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.
(iii) One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.
(iv) The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’.” 8
[19] As to s.611(2)(b), the issue I have to determine is whether I am satisfied that in all the circumstances it should have been reasonably apparent to Mr Stock that his claim that he had been unfairly dismissed had no reasonable prospect of success. In Keep, the Full Bench also summarised the principles relevant to s.611(2)(b) of the Act, outlining:
“ As to s.611(2)(b), the FWC may make a costs order against a person if satisfied that “it should have been reasonably apparent” to that person that their application had ‘no reasonable prospect of success’. The expression “should have been reasonably apparent” in s.611(2)(b) imports an objective test, directed to a belief formed on an objective basis as opposed to the applicant’s subjective belief.”
There is Full Bench authority for the proposition that the Commission should exercise caution before arriving at the conclusion that an application had “no reasonable prospects of success”. In Deane v Paper Australia Pty Ltd a Full Bench made the following observation about this expression in the context of enlivening a power to award costs under s.170CJ(1) of the Workplace Relations Act 1996;
“unless upon the facts apparent to the applicant at the time of instituting the [application], the proceeding in question was manifestly untenable or groundless, the relevant requirement in s.170CJ(1) is not fulfilled and the discretion to make an order for costs is not available”.” 9 (references omitted)
[20] The Full Bench in Baker v Salva Resources Pty Ltd 10 summarised the principles to apply in deciding whether an application has been made without reasonable prospects of success 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 as to be not reasonably arguable.” 11
[21] More recently, when considering the meaning of s.611(2)(b), despite referencing it as s.611(1)(b), the Full Bench in Health Services Union – Victoria No.1 Branch v Sanli 12 stated:
“The observations of the High Court in Spencer v The Commonwealth as to the meaning of the expression ‘no reasonable prospect’ in s.31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), are apposite to the matter before us:
‘In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.’
Section 31A of the Federal Court Act is a power to enter summary judgment and accordingly is not directly relevant to the matter before us. However, the High Court’s observation (in Spencer) that full weight must be given to the expression as a whole and that descriptors such as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ do not provide a sufficient chart of the metes and bounds of the power, are also applicable to s.611(1)(b).” 13 (references omitted)
[22] Having regard to the above authorities, I am required to exercise caution in determining whether to exercise the power to order costs pursuant to s.611(2)(b) of the Act and consider whether it would have been apparent to a reasonable person that Mr Stock’s application “had no reasonable prospect of success”, giving full weight to this expression as a whole.
[23] It was observed in Gugiatti that s.400A “is concerned with unreasonable acts or omissions in connection with the “conduct or continuation” of a matter already instituted, not with whether it was reasonable to have instituted a matter in the first place.” 14 In Macdougall v Health Axix Pty Ltd T/A Raymond Hader Clinic,15 the Full Bench proffered that s.611 is concerned with the making of the application, although it also suggested that post filing conduct can, in some circumstances, assist in determining whether the application or response, at the time it is made, falls within the scope of s.611.
[24] Turning firstly to s.611, the circumstances of this case require me to consider the following questions:
1) Did Mr Stock make his unfair dismissal application without reasonable cause (s.611(2)(a))?
2) Should it have been reasonably apparent to Mr Stock that his unfair dismissal application had no reasonable prospects of success (s.611(2)(b))?
[25] As outlined above, Mr Stock made his unfair dismissal application on 4 January 2022. By that time, a challenge to the legality of certain public health orders in New South Wales had been dismissed by the New South Wales Supreme Court and Court of Appeal in Kassam v Hazzard; Henry v Hazzard (Kazzam). 16 When Mr Stock made his unfair dismissal application, the Victorian public health directions and subsequent orders had not been ruled invalid. They had been in effect at all material times. On 4 January 2022 it was therefore reasonable to operate on the assumption that the directions and subsequent orders were legal and that on their terms, they applied to Rocla and Mr Stock’s employment. The Commission, not being a court, cannot make any binding declaration about the validity of state or federal legislation.17 At the time Mr Stock made his application, there had been an unequivocal statement from the New South Wales Supreme Court in Kazzam confirming that the Commission lacks jurisdiction to determine whether public health orders are valid.18 As such, even if the pillar of Mr Stock’s case was and remains that the Victorian public health directions and subsequent orders are unlawful/illegal, this was not a declaration the Commission could have made in determining his unfair dismissal application. The Commission is required to discharge its functions according to law.19
[26] Further, in this case there was no dispute that Mr Stock was unvaccinated at the time of his dismissal and he had given no indication that this would change. Nor was there any suggestion that Mr Stock:
• Was an ‘excepted person’ under the directions and orders;
• Could have performed his work anywhere other than on-site; or
• Had been denied procedural fairness.
[27] Having regard to these circumstances, I am satisfied that Mr Stock made his unfair dismissal application on 4 January 2022 without reasonable cause and that it should have been reasonably apparent, noting that this is an objective test, 20 that his application to the Commission had no reasonable prospects of success.
[28] As covered above, s.400A of the Act provides that costs may be awarded to Rocla if I am satisfied that the costs it claims were incurred as a result of an unreasonable act or omission of Mr Stock in connection with the conduct or continuation of his unfair dismissal application.
[29] As to the first pre-condition outlined in Gugiatti, Rocla relies on the failure by Mr Stock to file a notice of discontinuance of his unfair application following its letters to him dated 7 April 2022 and 17 May 2022 and submits that this was an unreasonable omission. Having regard to the fact that the public health directions and orders remained valid and that there were by then a number of Commission decisions that had been brought to his attention indicating Mr Stock was most likely going to be unsuccessful, I am satisfied that the failure by Mr Stock to file a notice of discontinuance was an unreasonable act or omission in connection with the conduct or continuation of his unfair dismissal remedy application for the purposes of s.400A(1).
[30] As to the second pre-condition outlined in Gugiatti, I am satisfied that Mr Stock’s unreasonable omission in failing to file a notice of discontinuance caused Rocla to firstly incur the cost of preparing material in response in order to comply with my directions and then the costs associated with the preparation for and presentation of its case at the hearing.
[31] I am therefore satisfied that Mr Stock caused Rocla to incur costs because of his unreasonable failure to discontinue his unfair dismissal application.
[32] However, even though I am satisfied that the relevant circumstances in s.400A and s.611 exist, I am not obliged to order costs. I retain a discretion and for the reasons that follow, in the particular circumstances of this case I have decided to exercise my discretion not to award costs.
[33] In the period leading up to his termination and throughout the conduct of this proceeding, Mr Stock has enlisted the assistance of Mr Alex Smith, a “non-paid representative.” 21 It is also apparent Mr Stock utilised template correspondence prepared by “De Cline”, which I am satisfied is a moniker used by Mr Smith. This is because subsequent to determining Mr Stock’s unfair dismissal application, I heard and determined another unfair dismissal matter in which Mr Smith was involved, Jemimah Scale v Coles Supermarkets Australia Pty Ltd (Scale). In Scale, it was apparent that Mr Smith was similarly using the moniker “De Cline” and the same or very similar template correspondence described as having been prepared by “De Cline.”22
[34] Mr Smith advocated on Mr Stock’s behalf at the hearing and it is evident he has maintained involvement, having filed Stock’s submissions in response to Rocla’s costs application. 23 Despite the arguments he advanced in this matter (and Scale) being unsuccessful, Mr Smith has nonetheless persisted with them in resisting, on behalf of Mr Stock, this application for costs. In particular, the costs submissions Mr Stock filed on behalf of Mr Stock state, inter alia:
“…2. The living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD (COST APPLICANT), were put on Legal Notice on several occasions with regard to the COST APPLICANT’S COVID-19 policy/directions that were in fact unlawful/ illegal and, as such, were:
2.1. given several opportunities to provide the law relied upon for the COVID-19 policy/directions, more specifically in terms of the legislative, statute, federal Act;
2.2. made aware by failing to do so the living men and woman acting in various roles as employees/operators/directors of the COMPANY, ROCLA PTY LTD, AQUIESCED that no such law nor authority existed;
2.3. made aware that the claimed COVID-19 vaccines were not approved. There are vast amounts of information available on various Government sites, such as reaffirming this fact that the current claimed COVID -19 vaccines are all only provisionally approved and are a part of a CLINICAL-TRIAL, thus making the coercion direction policy void ab initio.
3. The company employees of the ROCLA PTY LTD (COSTS APPLICANT) claim they had no choice but to comply with a mandate, however, the prima facie evidence is that the COSTS APPLICANT had the same choice as everyone else - namely, with regard to participating in the mandate - the COSTS APPLICANT had the choice to accept or DECLINE. ROCLA PTY LTD (COSTS APPLICANT) chose to accept, however that acceptance does not apply to any employees who choose not to do so.
4. It is the absolute fact that no law exists permitting coercion/pressure with threat and menace to participate in a clinical trial, in this instance, the CLAIMED COVID-19 clinical trial vaccine.
5. Regardless of the outcome of the Commission, there are no grounds for any form of costs order against the Nigel STOCK (COSTS RESPONDENT). ROCLA PTY LTD (COSTS APPLICANT) made it clear in the unfair dismissal case that there were no vexatious or malicious actions in play with regard to Nigel STOCK’s actions, and as such, as for any claims that the application was doomed from the beginning shows a lack of probity on behalf of ROCLA PTY LTD (COSTS APPLICANT).
6. The application for Costs is DECLINED, DECLINED, DECLINED.
7. Any further actions will be seen as deliberate vexatious and malicious conduct towards Nigel STOCK (COSTS RESPONDENT)
Regards Alex SMITH on behalf of Nigel STOCK
19 JULY 2022”
[35] In addition to this matter and Scale, I have noted that Mr Smith has been involved in at least these additional unfair dismissal applications decided by the Commission during 2022:
1) Elizabeth Cogger v New Horizons Enterprises Limited, 24determined on 24 May 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar, if not identical, submissions were advanced by Mr Smith;
2) Shantay Moriah May v Wesley Mission Queensland, 25 determined on 28 June 2022 and in which it would appear some correspondence substantially similar, if not identical, to “De Cline” template correspondence was used and similar submissions were advanced by Mr Smith;
3) Fiona Howard v Uniting Care Health, 26 determined on 15 July 2022 and in which submissions advanced by Mr Smith were described as being neither helpful nor persuasive and simply a re-ventilation from earlier unsuccessful efforts by him;
4) Emma Frances Sommerville v University of Tasmania, 27 determined on 15 July 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced; and
5) Mills & Ors v Village Roadshow Theme Parkes Pty Ltd, 28 determined on 31 August 2022 and in which it would appear correspondence substantially similar, if not identical, to the “De Cline” template correspondence was used and similar submissions were advanced in four related applications.
[36] My experience of Mr Smith was that despite evincing an attitude to the Commission that was belligerent, verging on dismissive, he has nonetheless been intent on persisting with certain submissions despite grudgingly acknowledging during the conduct of Scale that it was for a court to determine the legality or otherwise of public health orders and directives. In the two matters in which he appeared before me, Mr Smith attempted to advance propositions that were plainly incorrect, such as contending that any line managers who had sought to ensure their employer’s compliance with public health orders would be held personally liable for any adverse consequences that flowed. While representing Jemimah Scale, Mr Smith himself sent correspondence to a line manager accusing him of criminal activity and threatening his arrest. 29
[37] Mr Smith appears to have persisted with the same or similar strategies and submissions in ten different unfair dismissal applications before five different Commission Members presiding in four states. Even though Mr Smith has continued to be unsuccessful, he does not yet appear to have modified his approach. In his most recent attempt at representation, Mr Smith stooped to advancing the submission that there is “a prima facie case of biased considerations in favour of the Employer/Respondent by FWC as a whole.” 30
[38] My conclusion is that despite Mr Stock appearing to have invested significant trust in Mr Smith, the role Mr Smith has played while purporting to represent Mr Stock has been reckless to the point of deleterious. While employed, Mr Stock relied on the ‘notices’ prepared by “De Cline” that in my view comprised “a disparate collection of concepts and assertions that lacked a coherent thread.” 31 These notices did not assist, and I maintain my previously stated view. I also note that even though Mr Stock was on notice that Rocla would pursue costs against him from 7 April 2022 if successful, Mr Smith insisted on advancing such arguments at the hearing as the proposition that Mr Stock was not capable of being a manufacturing worker covered by the Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) because the concrete stormwater and drainage pipes and range of precast products produced and distributed by Rocla were not goods. These are just two examples of the poor quality of Mr Smith’s “representation.”
[39] No doubt Mr Stock was aggrieved by the circumstances that befell him and anxious about the implications of being dismissed from his employment, but this would not ordinarily absolve him of all responsibility for filing an unfair dismissal application without reasonable cause and when it should have been reasonably apparent to him that it had no reasonable prospects of success, or for causing Rocla to incur costs by failing to discontinue the matter. Ultimately, however, I am persuaded that the particular circumstances of this case save Mr Stock because having had the misfortune to fall under the influence of the stubborn, misguided and almost wholly incompetent Mr Smith, I do not consider that Mr Stock should have a Costs order visited upon him.
[40] Nonetheless, the involvement of Mr Smith cannot be left uncommented upon. As I have outlined, the “representation” provided by Mr Smith has been a feature of at least ten unfair dismissal applications before the Commission during 2022. None have succeeded but, in each case, the respondent to the application has been required to comply with directions of the Commission and commit the necessary resources to defend its position at both conciliation and during the arbitral process. Additionally, a not insignificant amount of the Commission’s time and resources has been absorbed dealing with the applications spearheaded by Mr Smith and this has been at the expense of other parties with matters before the Commission. Had Mr Smith been a lawyer or paid agent, he would have fallen within the meaning of a “representative” in s.401 of the Act and at risk of being the subject of an application for costs in some or even all of those matters. However, as things currently stand, there is a regulatory gap in the Act when it comes to individuals such as Mr Smith who impose themselves on the Commission’s processes with all care, no responsibility and no “skin in the game.”
[41] For the reasons outlined above, I am not satisfied that I should exercise my discretion and make an order for costs against Mr Stock pursuant to s.611 and s.400A of the Act. Accordingly, the costs application of Rocla is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR746249>
2 Fair Work Amendment Bill 2012 – Explanatory Memorandum at page 37.
4 Ibid at [43].
6 Ibid at [30].
8 Ibid at [17].
9 Ibid at [18]-[19].
11 Ibid at [10].
13 Ibid at [113] – [114].
14 [2016] FWCFB 2478 at [61].
15 [2012] FWAFB 8109 at [12]–[13].
16 [2021] NSWSC 1320; [2021] NSWCA 299.
17 Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112 at [26].
18 [2021] NSWSC 1320 at [68].
19 Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School T/A The Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16].
20 Baker v Salva Resources Pty Ltd [2011] FWAFB 4014 at [10].
21 Mr Smith was given this description by Mr Stock in an email to the Chambers of Cirkovic C dated 9 May 2022 ahead of the Member-assisted-conciliation in this proceeding on 13 May 2022.
22 [2022] FWC 1593 at [35].
23 In an email sent by Mr Smith to Chambers on 19 July 2022.
26 [2022 FWC 1860.
28 [2022] FWC 2297, noting that this matter involved four separate applications for unfair dismissal.
29 [2022] FWC 1593 at [38].
30 [20220] FWC 2297 at [20].
31 [2022] FWC 1299 at [36].