Brisbane City Council v Prange [2011] QIRC 65

CITATION: Brisbane City Council AND Bernardus Prange (B/2011/33) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 331 - decisions generally Brisbane City Council AND Bernardus Prange (B/2011/33) VICE PRESIDENT LINNANE 10 October 2011 Application to dismiss a re-opening of an application to re-open an unfair dismissal application - Original re-opening application dismissed - Held no basis for the re-opening application - Held there is no public interest in allowing the re- opening application to proceed - Application to dismiss granted - Costs of application to dismiss ordered against Respondent. DECISION [1] This is an application by the Brisbane City Council (Applicant) to dismiss application B/2011/25 pursuant to s. 331 of Industrial Relations Act 1999 (Act). B/2011/25 is an application by Bernardus Prange (Respondent) to re-open application B/2011/18 which in turn was an application to re-open unfair dismissal application TD/2010/17. History of Applications [2] The history of the applications and decisions involving the current Respondent and Applicant is as follows:  the Respondent's employment with the Applicant was terminated on 17 February 2010 and he has not been employed by the Applicant since that time;  the Respondent filed an unfair dismissal application on 24 March 2010 i.e. TD/2010/17. A decision in this matter was released on 9 June 2011 in Bernardus Prange v Brisbane City Council1. In that matter I found that the Applicant had a valid reason for terminating the Respondent's employment but that the Respondent had been denied natural justice in one respect. As such the Respondent was awarded compensation equivalent to five weeks' pay. That compensation was paid by the Applicant within the appropriate time period;  the Respondent then filed an application seeking to re-open TD/2010/17 on 30 June 2011 i.e. B/2011/18. A decision in that matter was released on 16 August 2011: see Bernardus Prange v Brisbane City Council2. In that matter I dismissed the B/2011/18 application;  following the dismissal of B/2011/18 the Respondent filed an unfair dismissal application in Fair Work Australia citing the Applicant as the former employer and a Conference was scheduled for 6 September 2011. This was the second occasion on which the Respondent had filed an unfair dismissal application with Fair Work Australia. The Respondent had initially filed an unfair dismissal application in Fair Work Australia following the termination of his employment with the Applicant in February 2010 i.e. U2010/7200. On realising that Fair Work Australia did not have jurisdiction to hear an unfair dismissal application the Respondent, on 24 March 2010, filed what became the unfair dismissal application TD/2010/17 in the Queensland Industrial Relations Commission. When the Respondent filed his most recent application with Fair Work Australia he well knew that that application could not succeed. The Conference scheduled for 6 September 2011 was cancelled and the Respondent's application in Fair Work Australia was dismissed on 19 September 2011;  on 30 August 2011 the Respondent filed an application to re-open B/2011/18 which was the application to re-open the original unfair dismissal application. That application is B/2011/25; and  on 26 September 2011 the Applicant filed the current application to dismiss B/2011/25 pursuant to s. 331 of the Act. 1 Bernardus Prange v Brisbane City Council (TD/2010/17) - <http://www.qirc.qld.gov.au> 2 Bernardus Prange v Brisbane City Council (B/2011/18) - <http://www.qirc.qld.gov.au> -- 1 of 4 -- 2 Current Application [3] It is apparent that the Respondent relies upon the following matters to support his application to re-open B/2011/18:  an alleged offer of redeployment offered to him. The so-called offer is found in an email forwarded to Counsel for the Applicant on 20 July 2011 from a firm of Solicitors totally unconnected with the Applicant and/or the Respondent's unfair dismissal application. The email refers to an attempt by another organisation to redeploy a particular individual and asking Counsel for the Applicant to review certain matters before drafting a Response. The matter to which the email refers is totally unconnected with the Respondent and his unfair dismissal application. The email does not refer at all to either the Respondent or the Applicant. The email was inadvertently attached to an outline of submissions provided to the Respondent in B/2011/18. In my view no reasonable person could possibly have concluded that the email was an offer by the Applicant to redeploy the Respondent. In any event the matter is irrelevant to any application to re-open an earlier application to re-open an unfair dismissal application. I see no merit whatsoever in the Respondent's argument that the existence of this email is grounds to re-open an application to re-open an unfair dismissal application; and  a document in Annexure V to application B/2011/25 which purports to indicate that another staff member employed by the Applicant had made an error on the Applicant's website. When the Respondent was asked to refer the Commission to that part of the decision in TD/2010/17 where a similar error on the part of the Respondent was identified the Respondent raised paragraph [14] of the decision. That paragraph in the decision simply regurgitates the Respondent's Response to the Show Cause he received. My findings in respect of the allegation referred to (i.e. that the Respondent had failed to follow lawful and reasonable directions and instructions) is found at paragraph [27] of the decision: "[27] Conclusion on (i): Based on the evidence before me I have formed the view that the Applicant has failed to show that the Respondent's findings that: (i) he had not improved his performance to an acceptable level despite intensive effort and resources invested by iDivision; (ii) he has continued to disobey lawful and reasonable instructions e.g. in failing to raise issues promptly with Ms Prasser and/or Mr Chavez; and (iii) his behaviour throughout the PMP and in his Response to the Show Cause demonstrated a disregard for the feedback provided to him; were without justification although some of the issues raised may have been minor in nature." Ultimately I found in TD/2010/17 that the Respondent had been unfairly dismissed because the Applicant had not given the Respondent sufficient time to provide a Response to the Show Cause. The information that another employee has made an error could not have changed, in any way whatsoever, the outcome in TD/2010/17. [4] The extensive material filed by the Respondent in B/2011/25 is similar to the material filed in support of B/2011/18. It is all material that was in the Respondent's possession at the time of the hearing in TD/2010/17 but was not relied upon or referred to in the hearing of that application. I gave extensive reasons for dismissing the Respondent's application to re-open in B/2011/18. The Respondent was thus on notice as to the type of material that was needed to successfully obtain a re-opening of his original unfair dismissal application. In B/2011/25 the Respondent's application seeks: "1. To reopen QIRC Case Number B/2011/18 in order to amend decision under Industrial Relations Act 1999 - s. 74 - application for reinstatement and attached as Schedule 2 to this application is copy of decision document; and 2. The decisions were taken with Brisbane City Council by accident or on purpose providing vital and relevant material which was available at the original hearing AND/OR Brisbane City Council on purpose or by accident withholding vital and relevant material which was not available at the original hearing, what confused QIRC or the Commissioner in order to take correct and fair decisions this year. -- 2 of 4 -- 3 Also Counsel for Respondent offered me redeployment at … in a preliminary hearing on 20/07/2011. I have accepted redeployment on 26/07/2011 and committed to organisational change. So far nothing did happen or has happened. I request QIRC to take into consideration my comments to numbered paragraphs below which corresponds with paragraphs from that latest Case Number B/2011/18 decision document, released on 16/08/2011 and attached as Schedule 2 to my re-opening request.". [5] The Applicant disclosed all material that it was required to disclose in TD/2010/17. There was no “on purpose or by accident” about it. The Respondent had all the documentation to prosecute his claim that his dismissal from employment with the Applicant was unfair. As indicated in the decision in B/2011/18 it was the Respondent who failed to adduce the material that was already in his possession. I have earlier dismissed the Respondent's suggestion that there was an offer of redeployment to the Respondent. [6] There is no basis whatsoever for the Respondent to be seeking a re-opening of a re-opening of his unfair dismissal application. The Applicant submits that the Commission should exercise the discretion vested in s. 331 of the Act which relevantly provides as follows: "331 Decisions generally The court or commission may, in an industrial cause - … (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers - (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; …". [7] Having determined that there is no basis whatsoever for the B/2011/25 application there can be no public interest in allowing that application to be further heard. I have thus decided to exercise the discretion vested in me by s. 331 of the Act and dismiss application B/2011/25 on the basis that further proceedings by the Commission is not necessary or desirable in the public interest. I thus grant this application and dismiss application B/2011/25. Costs Application [8] The Applicant also seeks its costs of, and incidental to, the current application. The Applicant has outlined the costs it seeks in Exhibit 2 and they are based on Column G of Schedule 3 - Scale of Costs - Magistrates Court - Uniform Civil Procedure Rules 1999. The costs sought are as follows: Item 6(e) - Counsel's fee for advice $260.00 Item 6(j) - Counsel's fee application in a proceeding $250.00 Item 8 - Attendance of solicitor $645.00 Item 10 - Other applications to court $535.00 Total $1,690.00 [9] The Commission's power to award costs is found in s. 335 of the Act which relevantly provides as follows: "335 General power to award costs (1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied - (a) the party made the application vexatiously or without reasonable cause; …". [10] The Applicant did not seek costs of the Respondent's unsuccessful initial re-opening application B/2011/18. In my decision in that matter I clearly outlined the principles to be considered in any exercise of discretion under s. 280 of the Act in paragraph [9] of that decision. The Respondent was thus clearly aware of the types of issues required for a successful re-opening application. -- 3 of 4 -- 4 [11] The material in the current application to re-open contains much of the material already dealt with in the decision in B/2011/18. The only real new material is the so-called offer of redeployment which on any reasonable person's view was not an offer of redeployment to the Respondent. In any event it was not a matter to be considered in any re-opening of an unfair dismissal application. [12] The Applicant has been put to time and cost in defending the original application to re-open, the second application to Fair Work Australia and now a second application to re-open. It has become apparent that the Respondent has either not accepted that his employment with the Applicant is at an end, or alternatively, the Respondent in continuing to pursue this matter against the Applicant is seeking to have the Applicant spend time and money defending applications which have no reasonable prospects of success. There needs to be an end to litigation at some time. The end to the litigation in respect of the Respondent's unfair dismissal application was after the appeal period expired following the decision to dismiss his initial re-opening application. [13] In the circumstances I am satisfied that application B/2011/25 was instituted by the Respondent without reasonable cause. It thus was reasonable for the Applicant to seek to have that application dismissed. In those circumstances I am satisfied that this is a case to exercise my discretion and award costs against the Respondent. The Applicant is entitled to its costs of bringing the current application to dismiss B/2011/18. Whilst I acknowledge that the claim for $1,690.00 is reasonable in the circumstances I have decided to limit the costs to $1,400.00. [14] I thus order the Respondent, Bernardus Prange, to pay the Applicant, Brisbane City Council, an amount of $1,400.00 in costs in respect of the current application. The amount of $1,400.00 is to be paid within twenty-one (21) days of the release of this decision. [15] Order accordingly. D.M LINNANE, Vice President. Hearing Details: 2011 5 October Released: 10 October 2011 Appearances: Mr J. Merrell of Counsel instructed by Brisbane City Legal Practice for the Applicant. Mr B. Prange on his own behalf. -- 4 of 4 --