[2011] FWA 651

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Narong Khammaneechan
Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe




Termination of employment - Costs application against applicant’s solicitor and applicant - Costs discretionary - Onus of proof re statutory requirements - Meaning of ‘encourage’ considered - ‘No reasonable prospect of success’ and ‘without reasonable cause’ separate concepts - Employer covered by Small Business Fair Dismissal Code - Nature of findings at first instance - Costs application dismissed.


[1] Narong Khammaneechan (the applicant) was dismissed by Nanakhon Pty Ltd (the respondent or the employer) for alleged theft of money from the Banana Tree Cafe, where he was employed as the senior cook. In Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe (“the substantive decision”) 1 I dismissed the applicant’s application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] This decision deals with an application by the respondent for costs pursuant to s.402 of the Act, which provides as follows:

402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:

(a) FWA determines the matter; or

(b) the matter is discontinued.”

[3] The application for costs was made within the required period. The respondent’s primary application is made pursuant to s.401 of the Act against South East Community Legal Service Inc. (SECLS), which represented the Applicant in his claim for an unfair dismissal remedy. In the alternative, the employer applies for costs against the applicant pursuant to s.611 of the Act.

[4] The matter proceeded by way of written submissions. SECLS responded to the written submissions of the employer, on its own behalf in relation to the costs application against it and on behalf of the applicant in relation to the s.611 application. Fair Work Australia (FWA) subsequently received notice that Pasin Lee Lawyers were now representing the applicant in relation to the costs application against him 2, and submissions were filed on his behalf. In the event that I am not persuaded to grant costs against SECLS and proceed to consider the application pursuant to s.611 of the Act, only the submissions of Pasin Lee Lawyers and the employer will be considered.

[5] Before canvassing the parties’ submissions on the s.401 application, it is convenient to set out the salient findings and conclusions regarding the applicant’s dismissal. The following facts were not in dispute:

[6] The applicant was given to understand that the respondent had referred the theft to the Mt Gambier police. On two occasions while suspended the applicant attended the police station to give his version of events and ‘clear his name’. While the respondent had attended the police station, no official complaint was recorded. Also relevant is the fact that after his suspension, Ms Sangduen Nanakhon, the other proprietor of the business and the de facto partner of Mr Barton, verbally threatened and/or abused the applicant in phone messages she had left for him and when they had seen each other at the police station on one occasion.

[7] The employer is a small business as defined under the Act. In order to establish that he had been unfairly dismissed, the applicant was required to satisfy each of the requirements in s.385 of the Act, including s.385(c) that the dismissal was not consistent with the Small Business Fair Dismissal Code. In the particular circumstances of the applicant’s dismissal, I was required to determine whether the employer had reasonable grounds on which to believe that the applicant’s conduct was serious enough to justify dismissal without notice. Having formed the view that the terms of the Small Business Fair Dismissal Code were met by the employer, I was not required to make findings as to whether the applicant did or did not steal the money from the Cafe. 3

[8] In relation to credibility, I found that the applicant “... was a credible witness who told the truth, even when it was prejudicial to his case.” 4 I found that Mr Barton was also a credible witness whose evidence was accepted.5 While the applicant at no stage conceded to the employer that he had stolen the money, I determined that his statements and actions were sufficient for the employer to reach a reasonable view that the applicant was guilty of theft.

The parties’ submissions

[9] At the outset, I note that Mr DeGaris, solicitor for the respondent, included paragraphs within his submissions relating to statements allegedly made by the Conciliator who conducted the conciliation between the parties. Such statements were said to have been made after the conciliation conference had concluded. SECLS sought to answer that matter with its own submissions as to statements allegedly made by the Conciliator, also after the conciliation conference had concluded, and sought leave to file further material. Following a Directions conference between the parties on 13 December 2010, where I indicated my preliminary view that such matters were not relevant to a consideration of costs, the respondent consented to the offending paragraphs being deleted. 6

[10] In the primary argument under s.401(1)(a) of the Act, Mr DeGaris submitted that SECLS encouraged the applicant to continue with proceedings in circumstances where it should have been apparent that he had no reasonable prospect of success and SECLS was on notice as to the respondent’s intention to seek a costs order against it if the matter proceeded to trial.

[11] Mr DeGaris contended that the general common law rule of litigation is that costs follow the event, and that it would be just and reasonable to follow this principle in the present case. It was put that SECLS had conceded that the respondent was a small business to which the Small Business Fair Dismissal Code applies, and therefore was aware of the test that would be applied. Further, it was submitted that SECLS was aware of the applicant’s evidence that when advised by Mr Barton that money had gone missing, the applicant offered to pay money to the respondent and at no stage denied stealing the money. Mr DeGaris argued that based upon the agreed facts of the case “... there is no other reasonable conclusion, and certainly no other conclusion could be reached by the Deputy President, other than that the respondent had reasonable grounds to believe that the applicant was guilty of serious and wilful misconduct.” 7 As such it should have been apparent to SECLS that the applicant had no reasonable prospect of success or that the applicant’s case was “manifestly untenable or groundless”.8 Mr DeGaris contended that as a result of SECLS encouraging the applicant to proceed, the respondent had incurred costs defending the claim.

[12] Ms Harvey, for SECLS, commenced representing the applicant after the conciliation conference had failed to resolve his application. At the time she was representing another employee of the respondent who had also been dismissed for theft of money. His unfair dismissal application, which was to be heard concurrently with the applicant’s, was settled on the morning of the first day of the hearing. 9

[13] Ms Harvey submitted that, until the other employee’s application was settled, she understood the respondent’s case to be that the applicant and the other employee acted in concert. The documentary evidence relied upon by the respondent showed that money went missing on some days when the applicant was not rostered to work, 10 and once the other employee’s case had settled this was said to be significant in assessing whether there were reasonable grounds on which the respondent could conclude that the applicant was guilty of the theft.

[14] Ms Harvey contended that it was significant that the applicant had never confessed to the theft and his failure to deny the allegation may have arisen from the fact that Mr Barton did not explicitly accuse him of the theft in the interview on 18 April 2010. Further, Ms Harvey submitted that the respondent had not reported the theft of money to the police prior to the hearing, nor have the police at any stage sought to interview the applicant.

[15] It was submitted that the making of a costs order against a Community Legal Centre (CLC) would have serious implications. Such an order would discourage CLCs from representing employees in industrial relations matters because of the financial risk involved. This in turn would make it more difficult for employees to exercise their rights under the Act and would result in matters being conducted less efficiently before FWA.

[16] Ms Harvey stated that, “Both applicants were motivated to continue with the matter and possibly would have continued without legal representation. I warned the clients of the risks and possible outcomes, gave my legal opinion on the likelihood of success and agreed to represent them if they wished to proceed but did not ‘encourage’ them as required by [s.401] (1)(a)(i).” 11 She also stated that she “... formed the view that the case had reasonable prospects of success” based on the information and material available to her prior to trial.12


[17] Section 401 of the Act states:

[18] The power to award costs is a discretionary one. As stated in McKenzie v Meran Rise Pty Ltd T/As Nu Force Security Services (McKenzie), 13 an order for costs involves a two stage process. Firstly, it is necessary to determine whether there is power to award costs because the requirements of the legislation are satisfied and secondly, if the power to award costs exists, to determine whether the Tribunal’s discretion to make a costs order should be exercised. McKenzie was decided under the Workplace Relations Act 1996 (the WRA) but remains apposite to the relevant provisions of the Act.

[19] The respondent bears the onus of proof of satisfying FWA that the jurisdictional prerequisites to the exercise of the discretion to award costs have been met. 14

[20] Section 401(1)(a) of the Act requires that the Tribunal must be satisfied of three circumstances: firstly, that the lawyer or paid agent encouraged the person to start or continue the matter; secondly that as a result of that encouragement the other party incurred costs; and thirdly, that it should have been reasonably apparent that the person had no reasonable prospect of success. It is not in dispute that the applicant commenced proceedings prior to engaging SECLS to represent him, so the first issue is whether SECLS “encouraged” him to continue with the proceedings. There is no evidence before the Tribunal on this point - only the submissions of Ms Harvey, as summarised in paragraph [16] above, relate.

[21] Section 401(1)(a)(i) of the Act has not been the subject of detailed consideration by FWA, nor does it have an equivalent provision in the WRA. The Explanatory Memorandum to the Fair Work Bill 2008 states, in relation to s.401 of the Act, that:

[22] I consider that in order for a lawyer or paid agent to “encourage a person” to continue with an application, there must be a positive act, not merely an absence of discouragement in order for the statutory requirement to be satisfied.

[23] Contrary to the implied submission of the respondent, the fact that an applicant continues with proceedings which may have no reasonable prospect of success does not, in itself, lead to the conclusion that his or her lawyer or paid agent encouraged the applicant to do so. The respondent has put forward no evidence in support of the proposition that it was SECLS encouragement that led the applicant to continue with his application. While it is reasonable to assume that the view formed by Ms Harvey as to the prospect of success of the application was conveyed to the applicant and this would have no doubt given him some comfort, in my view this is not sufficient to satisfy the requirement that SECLS encouraged the applicant to continue with the application. Moreover, even if I am incorrect in this conclusion, there is no evidence that the view conveyed by SECLS to the applicant “... caused costs to be incurred by the other party ....” as required by s.401(1)(a)(i) of the Act. That is, the respondent has not established that absent any advice from SECLS as to the prospect of success, the applicant would have discontinued his application.

[24] Having reached this conclusion, I am not required to determine whether it should have been reasonably apparent that the applicant had no reasonable prospect of success as required by s.401(1)(a)(ii) of the Act, since the application must fail if the requirement in s.401(1)(a)(i) is not met. However, it is a matter to be considered in the context of the respondent’s application for pursuant to s.611 of the Act and much of the consideration in that regard as set out later in the decision has application to s.401(1)(a)(ii) of the Act.

[25] Given my conclusion, it is unnecessary to reach a view regarding Ms Harvey’s submission to the effect that special status should attach to CLCs when considering a costs application under s.401 of the Act.

Submissions on the application pursuant to s.611 of the Act

[26] The respondent argues that the applicant brought the unfair dismissal application without reasonable cause or that it should have been reasonably apparent to him that there was no reasonable prospect of success. For the most part the respondent relies on the same arguments as advanced in the s.402 application. It is submitted that the applicant was aware of the circumstances surrounding his dismissal and that he made no denials in relation to the theft of money from the respondent. In these circumstances the applicant should have known that his application had no reasonable prospect of success.

[27] Ms Lee, of Pasin Lee Lawyers for the applicant, submitted that the primary position under the Act is that a person must bear their own costs in relation to a matter before FWA. She contended that with new legislation, great care should be taken in coming to a conclusion that a person instituted proceedings without reasonable cause or that it should have been reasonably apparent that there was no reasonable prospect of success.

[28] In addition, Ms Lee submitted that the applicant:

[29] Ms Lee also sought to rely on offers made by the applicant at the conciliation conference.


[30] Section 611 of the Act is in the following terms:

[31] Before considering the relevant approach to applications under this section of the Act it is convenient to deal with Ms Lee’s reliance on an offer made by the applicant in conciliation. This submission can only relate to s.611(2)(b) of the Act, since s.611(2)(a) concerns the point at which the application was made. Conciliation of applications for an unfair dismissal remedy is a confidential and private process, as it was under the WRA, although it is no longer specifically mandated under the Act. In the context of the WRA, the approach to be taken to discussions, including offers and counteroffers, which occur in conciliation and are sought to be relied upon in an application for costs, was considered by the Australian Industrial Relations Commission (AIRC) in McKenzie.

[32] McKenzie concerned an appeal by the applicant at first instance against a costs order made against him and an appeal by the applicant’s solicitors against a cost order made against them. In the course of the appeal the respondent referred to its offer to reinstate the applicant, an offer which was made in conciliation. The appeal bench stated:

[33] I consider that the same general approach is apposite to conciliation in relation to unfair dismissal claims under the Act. Conciliation of unfair dismissal claims is part of the process for dealing with applications for an unfair dismissal remedy. Conciliation impacts on the operation of the unfair dismissal jurisdiction and the work of the Tribunal as evidenced by the number of claims which are settled or otherwise discontinued as a result of the conciliation process. 15 In my view, having regard to the ground rules under which conciliation is conducted and as a matter of public policy, it is not appropriate to allow statements and offers made in a confidential conference to be relied upon in subsequent proceedings. To do otherwise carries with it a real risk that the efficacy of the conciliation process will be diminished.

[34] The expression ‘without reasonable cause’ was considered by Wilcox CJ in Kanan v Australia Postal and Telecommunications Union16 His Honour stated that:

[35] In Henderson v Mainpoint Enterprises Australia Pty Ltd17 the Full Commission was considering an appeal against a costs award against the appellant by the Commissioner at first instance pursuant to s.170CJ(1) of the WRA. Section 170CJ(1) was in the following terms:

[36] The Full Commission identified three propositions extracted from the relevant authorities, as follows:

[37] Given the structure of s.611 of the Act, it is clear that the Act ascribes a different meaning to making an application ‘without reasonable cause’ and a situation where it is reasonably apparent that the person’s application had ‘no reasonable prospect of success.’ As such, the first proposition set out above is not safe to rely upon in the current legislative context, but the other two propositions remain apposite. 18

[38] I respectfully agree with the approach taken in Atkins v Box Hill High School, School Council, where Commissioner Lewin, in discussing the two concepts, stated:

[39] Further, it has been held, also in the context of s.170CJ(1) of the WRA, that the test of whether it should have been reasonably apparent that the application (or response, as the case may be) had no reasonable prospect of success is an objective one. That is, the test is whether the Commission is satisfied that it should have been reasonably apparent to the first party that he or she had no reasonable prospect of success rather than an assessment of the subjective beliefs of the person who made (or responded to) the application. 20

[40] Finally, the meaning to be ascribed to the phrase “no reasonable prospect of success” is well settled. Deane v Paper Australia Pty Ltd (Deane) is authority for the proposition that the phrase means that the proceeding was ‘manifestly untenable or groundless”. 21 In Carpenter v Corona Manufacturing Pty Ltd (Carpenter), SDP Lacy held that in determining whether it “should have been reasonably apparent” to a party that there was no reasonable prospect of success, it is appropriate to consider whether the party has been properly advised and has continued in the face of the advice with some ulterior motive or because of some wilful disregard of the facts or the clearly established law.22

[41] Turning to the facts of the present matter, it is of significant weight that the applicant at no stage conceded that he had stolen the money nor is there a finding to that effect. The facts as apparent to the applicant at the time he made the application must necessarily be considered in this light. I do not regard it as having been obvious to the applicant that the proceeding must fail. He was not in receipt of professional advice at the time and it is unrealistic to assume that he was familiar with the Small Business Fair Dismissal Code and the statutory approach to the dismissal of employees of small business employers under Part 3-2 of the Act.

[42] This is particularly important in this case, since it was not a matter of determining, among other things, whether there was a valid reason for dismissal, but whether on the information available to the employer it had reasonable grounds to believe that the applicant was guilty of serious misconduct. A significant feature of this case was the applicant’s conduct and statements during the course of the employer’s investigation, and they were found to be persuasive as to the reasonable belief of the employer that the applicant had committed the misconduct. However, I do not accept the respondent’s contention that there was no other conclusion that could be reached. The applicant’s conduct and statements had to be balanced against his explanation for same, which included that he was not directly accused of theft, that he felt some responsibility for the loss of money on shifts where he was the senior employee and he harboured concern for his visa status. In these circumstances I am not persuaded that the applicant instituted proceedings without reasonable cause.

[43] While each case must be considered on its own merits, cases where costs have been awarded on the basis that it should have been reasonably apparent that the application had no reasonable prospect of success, establish that an award of costs on this basis requires deliberate action by the person against whom costs are sought which may include a wilful disregard of the facts and/or of professional advice received. On an objective view of the facts known to the applicant, it cannot be said that it was clear that the proceeding must fail. He acted, at the least, in a manner consistent with his solicitor’s advice 23 and there is no evidence to conclude that he proceeded in wilful disregard of the facts.


[44] The application for costs against SECLS pursuant to s.401 of the Act and the application for costs against the applicant pursuant to s.611 of the Act are dismissed.


 1   [2010] FWA 7891

 2   Employer’s submissions filed 15 November 2010; SECLS submissions filed 25 November 2010. Leave to appear was granted to Ms Lee of Pasin Lee Lawyers and submissions on behalf of the applicant were filed by her on 7 December 2010.

 3   See also s.396 of the Act

 4   Ibid, at PN [7].

 5   Ibid, at PN [10]

 6   Email correspondence from DeGaris Lawyers dated 16 December 2010

 7   Respondent’s submission at para 18.

 8   Geissler v QR Passenger Pty Ltd [2010] FWA 1939

 9   See PN [8] of the unfair dismissal decision

 10   The documentary evidence to which this statement refers was data indicating the dates when money had gone missing over a period of approximately 10 months.

 11   SECLA submissions, para 21

 12   Ibid, para 29

 13   Print S4692 at PN [7]

 14   Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others, (1996-97) 73 IR 311 at p 317

 15   Approximately 90% of applications pursuant s.394 of the Act are finalised at or before Conciliation. Annual Report of Fair Work Australia, 1 July 2009 to 30 June 2010, at Table 6

 16   (1991-92) 43 IR 257 at pp 264-265

 17   Print Q3750, Ross VP, Watson SDP and Whelan C.

 18   See also Mihajlovski v Cootes, (Mihajlovski) PR943954 at PN [28]

 19   PR939619 at PN [19]

 20   Wodonga Rural City Council (Wodonga) PR956243, Watson SDP, Lloyd SDP and Gay C at PN [6]

 21   PR 932454 at PN [7] - [8]

 22   PR935864 at PM [34]. Both Deane and Carpenter were cited with approval by VP Lawler in Mihajlovski, supra at PN [26] - [27]

 23   It was held in Wodonga at PN [34] that where a party relies in good faith on the advice of an experienced practitioner that the party has reasonable prospects of success, it cannot be found, without more, that it should have been reasonably apparent that the application had no reasonable prospect of success

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