1 Fair Work Act 2009 s.394—Unfair dismissal Claudia Montero v Club Holdings Pty Ltd T/A Horizons West Bus & Coach Lines (U2020/9693) COMMISSIONER WILLIAMS PERTH, 17 FEBRUARY 2021 Application for costs – s.611. [1] This decision concerns an application for costs made by Club Holdings Pty Ltd T/A Horizons West Bus & Coach Lines (the Costs Applicant or Horizons West) under section 611 of the Fair Work Act 2009 (Cth) (the Act). The Costs Respondent is Ms Claudia Montero (Ms Montero or the Costs Respondent). [2] Ms Montero had made an application for an unfair dismissal remedy under section 394 of the Act. [3] Ms Montero discontinued her application less than 24 hours before the time of the listed hearing. [4] Both parties have filed written material concerning the costs application. The parties were then directed to advise if they requested a hearing however neither party has done so. Consequently, this application will be determined on the written materials filed by the parties. I note that Horizons West rely on the witness statements, submissions, and other documents filed in response to the unfair dismissal remedy application of Ms Montero. Factual findings [5] Ms Montero filed her unfair dismissal remedy application on 15 July 2020. [6] Her application relevantly says there was a meeting on 24 June 2020 and, “This meeting should have been a catchup of training I may have missed but instead I was being harassed, badgered and overly criticised and (listened too by SBS Contractors regarding minor procedural issues that we had already reconciled; Feeling co-erced and upset about the recent treatment, inadequate outcome to hazards raised in incident reports and changes in management I felt very upset and could not continue with the meeting and could barely hold myself together to face yet another bus run which was already problematic with regards to safety. I in no way felt supported by my [2021] FWC 733 DECISION [2021] FWC 733 2 employer at the time and tried to express this. I proceded to my next shift whilst I was told to use it to think things over and to think about it. For the Employer to then accept this as my tendering my resignation on 25th June 2020 is harsh, unjust and unreasonable given the circumstances.” (sic) [7] The Costs Applicant filed its Form F3-Employer response to unfair dismissal application which identified their jurisdictional objection that Ms Montero was not dismissed. [8] The grounds for this objection stated in the response were as follows, “The Applicant verbally resigned on 24 June 2020. The Respondent confirmed the resignation and an email dated 25 June 2020. At about 1.50pm on 24 June 2020 Sonia Pinto, Administration Support, met with the Applicant to discuss and explain the correct procedure for reporting of incidents. The Applicant became defensive and loud. Ken Monkhouse, Contracts Administrator, who was in the same office intervened to try to defuse the situation. However the Applicant said she “was not interested in working for the Company”. The Applicant stood up and said she “would not leave the Company hanging and would work her last run that afternoon but did not want to work for the Company anymore”. Ken asked the Applicant “are you sure you want to resign?” “Yes” she said. Ken then asked “Do you want to give yourself some time to think about it?”. The Applicant replied with a clear “No”. Ken said “fine, if that's what it is”. The meeting finished at 2.10pm and the Applicant then left to do her afternoon run. At 10.37am on 25 June 2020 Sonia Pinto emailed the Applicant confirming her resignation. On Friday 26 June 2020 the Respondent found a replacement for the Applicant's run on Monday 29 June 2020. At 4.50pm on Saturday 27 June 2020 the Applicant emailed Sonia Pinto disputing her resignation.” [9] The unfair dismissal remedy application was the subject of a staff conciliation conference on 18 August 2020 however, it was not resolved and so was referred to the Commission as currently constituted for hearing. [10] On 2 September 2020 the Commission issued a notice of listing for a hearing to be held on Wednesday, 4 November 2020 at 10.30 a.m. and attached directions. [11] Those directions required the Costs Applicant to first file its materials in support of its jurisdictional objection by 23 September 2020. The directions then required the Costs Respondent to file her materials by 14 October 2020 in response to the jurisdictional objection and in support of its originating application. Finally, the directions required the Costs Applicant to file its materials in reply to the originating application by 21 October 2020. [2021] FWC 733 3 [12] On 9 September 2020 the Commission was advised that the Costs Respondent was legally represented. [13] Both parties filed witness statements, submissions, and supporting documentation in compliance with the directions. [14] The facts relevant to the question of whether or not the Costs Respondent had been dismissed were that there was a meeting on 24 June 2020 at 1.45 p.m. between Ms Montero, Mr Monkhouse, and Ms Pinto. [15] A range of matters were discussed, and Ms Montero became upset. Ms Montero’s evidence was that amongst other things she said she could not carry on under these conditions. She offered to work her shift that afternoon saying they should not worry she would never leave them this way and that she was a professional. She recalls Mr Monkhouse several times offering for her to think about things during her shift. Ms Montero denies mentioning the word resign or resigning during the meeting. [16] After the meeting at 3.46 p.m. she sent a text message to a friend as follows, “Feck I just tried to quit This new boss just says things to spark me off. I ended up crying like a sensitive baby again. I don’t know why it upsets me so much?!” (sic) [17] Her friend replied at 5.17 p.m., “Aww hun, Did u quit?” (sic) [18] Ms Monero responded, “Im not sure Cos I told them I’ll do this last bus run because I would not leave them stranded like that.” (sic) [19] The evidence of Ms Pinto relevantly was that at the meeting Ms Montero, amongst other things, said she was not interested in working with a company like this. Her evidence was that Ms Montero stood up, said she was professional and would not leave them hanging and so would do the last afternoon bus run. But she did not want to work for the company anymore. [20] Ms Pinto’s evidence was that Mr Monkhouse then asked her if she was sure she wanted to resign and she said “Yes”. He said, “Do you not want to give yourself time?” and Ms Montero replied “No”. [21] Mr Monkhouse’s evidence was generally consistent with Ms Pinto’s evidence. [2021] FWC 733 4 [22] The next day 25 June 2020 at 10.37 a.m. Horizons West sent Ms Montero an email which confirmed they had accepted her resignation. [23] Ms Montero’s evidence is she only read the email a day later on 26 June 2020. [24] Another day after she had read the email, on Saturday, 27 June 2020 at 4.50 p.m., Ms Montero sent a text message saying amongst other things that she believed the resignation is not valid as she did not have the intention nor did she make a real offer to resign for Horizons West to later accept. [25] The next day Monday, 29 June 2020, the Horizons West’s General Manager, Mr Turner, responded to Ms Montero by email relevantly as follows, “After verbally tendering your resignation, Ken provided you with several opportunities to reconsider however you insisted your resignation would stand. Your resignation was then formally confirmed by Sonia by email on Thursday morning, 25 June 2020.” [26] Objectively considering all this evidence that was known to Ms Montero from the date Horizons West’s materials were filed and served on 24 September 2020 it is clear that Ms Montero during the meeting on 24 June 2020 twice told Horizons West she no longer wanted to work for them after her shift that afternoon was completed. Ms Montero had clearly resigned from her employment during this meeting. Objectively, it was not the case that she had no other choice but to resign, she was not forced to resign by the employer’s conduct. She was notified the next day that her resignation of the previous day was accepted. It was three days after resigning that Ms Montero challenged that she had resigned. The Legislation [27] Section 611 of the Act prescribes when the Commission may order costs against a person. This section is set out below. “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. [2021] FWC 733 5 (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).” [28] Turning then to consider the circumstances of this matter in the context of section 611 of Act, I am not satisfied that the Costs Respondent made this application vexatiously given there is no evidence as to her motivations that would support this conclusion. [29] With respect to whether the Costs Respondent made the application without reasonable cause it is apparent from Ms Montero’s own text message to her friend that day that she was not certain whether she had resigned that day but if she had resigned it is apparent from her application that she felt she had been in some way forced to do so. To that extent it is not a case of her application having been made without reasonable cause. [30] A Full Bench of the Commission in the matter of Baker v Salva Resources Pty Ltd [[2011] FWAFB 4014] made the following observations about section 611(2)(b) of the Act, “[10] 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; 3 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 4 or so lacking in merit or substance as to be not reasonably arguable.” (Reference omitted) [31] In this case as I have explained above having received the Costs Applicant’s witness evidence and submissions it objectively should have been reasonably apparent to the Costs Respondent that her application was manifestly untenable or groundless. This was because her own position was she was initially unsure if she had resigned but having seen the Costs Applicant’s witness evidence it should have been reasonably apparent that she had resigned from her employment, was not forced to do so by the conduct or a course of conduct of the employer, and to the extent she might argue she resigned in the heat of the moment had only three days later sought to contest her employer having accepted her resignation. [32] My decision is that it should have been reasonably apparent to the Costs Respondent from 25 September 2020 that her application had no reasonable prospect of success. This is a case where it is appropriate for the Commission to exercise its discretion and award costs. [33] The Costs Respondent should have formed the view objectively about the prospects of success of her case shortly after 25 September 2020. Consequently, I will only have regard for the costs incurred by the Costs Applicant from that date onwards. [34] Having reviewed the costs claim, I have identified that from 25 September 2020 onwards 6.2 hours consultancy work at the rate of $275 per hour was incurred and 2.2 hours of secretarial work at the rate of $50 per hour was incurred amounting to a total of $1,815. [2021] FWC 733 6 [35] I have had regard for Schedule 3.1 of the Fair Work Regulations 2009 (Cth). The amount to be ordered is what I consider to be fair and reasonable in the circumstances of this case. [36] I have had regard for the personal circumstances of the Costs Respondent but do not consider they warrant any discount of the amount to be ordered. [37] An order [PR727067] requiring the Costs Respondent to pay the Costs Applicant $1,1815 within 14 days will be issued in conjunction with this decision. Final written submissions: Costs Applicant, 19 November 2020 Costs Respondent, 4 December 2020 Printed by authority of the Commonwealth Government Printer <PR726896>