Atkins v Titanium Golf Pty Ltd t/a Club Pelican Golf [2006] QIRC 22 (2006) 181 QGIG 216

[Extract from Queensland Government Industrial Gazette, dated 10 February, 2006, Vol. 181, No. 6, pages 216-218] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 335 - application for costs Kathleen Atkins AND Titanium Golf Pty Ltd t/a Club Pelican Golf (B/2005/901) COMMISSIONER THOMPSON 31 January 2006 Application for Costs - Unreasonable act or omission - Offer to settle - Application rejected. DECISION Background On 7 November 2005 the Commission, following two days of hearing, released a decision in relation to the abovementioned matter finding in favour of the Applicant and awarding a payment of compensation in the order of $5,038.46 gross. On 8 November 2005 correspondence was received by the Industrial Registrar on behalf of the Applicant in which the intention of the Applicant to pursue an order for costs in accordance with s. 335 of the Industrial Relations Act 1999 (the Act) was made known. The matter was set down for hearing in Maroochydore on 24 January 2006. Applicant Mr James Ryan on behalf of the Applicant firstly went to the outcome of the substantive hearing which found in favour of the Applicant and then to the general power of s. 335 of the Act. It was the position of the Applicant that for the Commission to order a party to an application for reinstatement to pay the other party's costs, such party must have caused costs and expenses to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application. The matter of Marfleet v BCC [2000] QIC 36 (27 July 2000) Hall P was relied upon to highlight both the broadness of the power and of its discretionary use by both the Industrial Court and Commission. It was submitted that the activity by the Respondent through its representatives prior to and after the lodgement of the application had in a number of respects been unreasonable or in the alternative caused a number of omissions that then caused the Applicant to incur costs and expenses including legal costs in having the matter brought before the Commission. In essence, they stated that the basis of the claim was that the suspension and subsequent termination of the employment had occurred without proper investigation or the opportunity for the Applicant to provide explanation. The Respondent had failed to provide to the Applicant monies owing at the time of termination therefore forcing the Applicant to take certain steps to recover those monies including the lodgement of an application under s. 278 of the Act. There was a further application to have the s. 278 application joined with the reinstatement application but that was subsequently withdrawn on or around 3 October 2005 when the monies in question were paid to the Applicant. The Commission was requested to bear in mind that in a second conciliation conference before Commissioner Asbury on 20 July 2005 that it was stated that it was unreasonable for the Respondent to withhold the entitlements in question. The Respondent, following the conference before Commissioner Asbury, failed to make any offer of settlement, instead filing a claim in the Magistrates Court at Caloundra seeking the recovery of $6,710 allegedly stolen by the Applicant. The Commission in the substantive matter had preferred the evidence of the Applicant to that of the Respondent witnesses. It was submitted that the purpose of the discretionary power of the Industrial Court and Commission to award costs as set out in s. 335 of the Act limits the risk of an Applicant commencing an action to seek reinstatement without liability to pay the costs of the employer if the Applicant fails to succeed unless the Applicant acts unreasonably or in the alternative, makes substantial omissions in the conduct of the proceedings. -- 1 of 4 -- 2 In the alternative it does not preclude an employer from defending such action upon the proviso that such employer does not act unreasonably or make substantial omissions in the conduct of the proceedings. It was submitted that the Respondent had acted unreasonably and/or made substantive omissions prior to and in the conduct of the proceedings before the Commission on 11 and 12 October 2005 on the following basis:  failed to investigate the matter prior to termination;  failed to respond to an offer (made on 3 October 2005) by the Applicant to settle the matter prior to hearing, for the amount of 12 weeks' pay, to the sum of $7,545.15;  the failure to either respond or make a counter offer should be considered by the Commission a substantial unreasonable act committed in the proceedings. A matter brought under s. 158 A(2) of the Justices Act 1886 requires a Magistrate to consider whether to award costs against the Police in favour of the Defendant if proceedings were not brought in good faith or if there was a failure to take appropriate steps to investigate the offence. The circumstances in this matter would be more than enough to satisfy the provisions of the said Justices Act 1886 to make an award against Police. The Applicant sought costs in accordance with s. 100 "Costs and Expenses" of the Industrial Relations (Tribunals) Rules 2000 which identifies the scale of fees for the Magistrates Court as appropriate for an award of costs. Respondent Ms Karen Prior for the Respondent went initially to the conduct of proceedings before the Commission on 11 and 12 October 2005. The hearing could not have been said to be drawn out and had in fact been conducted in an efficient manner. The only matters that had placed any pressure on the hearing related to the hearing of an audio tape of a police interview with the Applicant and a delay in contacting Senior Constable Bauer which resulted in a prolonged first day. The allegations of the Applicant that pressure exerted by the Respondent in the course of the litigation was beyond what might be ordinarily applied were rejected. There was acknowledgement that the parties had been involved in dialogue about monies owing to the Applicant by way of entitlements, which also caused the involvement of an Industrial Inspector from the Department of Industrial Relations. That matter according to Ms Prior must be seen as separate from the reinstatement application and have no bearing on the outcome of this application. The application (B/2005/1164) for the recovery of wages under s. 278 of the Act was withdrawn prior to the reinstatement hearing. In terms of the substantive application, the Respondent had identified that a significant amount of stock was missing and that the Applicant had a direct involvement in disposing of goods and placing the monies received into the "slushy" tin which were reasonable grounds to contest the reinstatement application. The Respondent was entitled to terminate the Applicant for what they saw as stealing as a servant. The matter had been referred to the Police and steps had been taken to lodge a claim for restitution which were reasons enough to reject the settlement proposal advanced by the applicant. Ms Prior relied upon two authorities to support the arguments, those being:  Goldman and Data General Australia Pty Ltd (No. B77 of 1997) Bougoure C; and  Nicole Pender and Specialist Solutions Pty Ltd (No. B599 of 2004) Bloomfield DP. The offer to settle, proposed by the Applicant, was significantly higher than the amount of compensation awarded by the Commission. -- 2 of 4 -- 3 It was of concern to the Respondent that a detailed assessment of the costs being sought had not been provided during the course of the proceedings. The Respondent in finishing requested the Commission to reject the application for costs. Conclusion The matter for determination by the Commission is whether costs be awarded to the Applicant following a finding in favour of the Applicant that the termination of her employment had been harsh, unjust and unreasonable. In making such a determination the Commission is bound by the provisions of s. 335 (1) of the Act which states: "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; or (b) for an application for reinstatement - the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the application.". The Applicant in seeking costs raised arguments that the Respondent, because of an unreasonable act or omission connected with the conduct of the application, caused the Applicant to incur costs. The Applicant claimed that an offer to settle the matter just days before the hearing for the amount of $7,545.15 had not been responded to or a counter offer put which in itself was sufficient to generate a finding in favour of the Applicant. The Respondent rightly claimed that the award of compensation by the Commission at $5,038.46 was substantially less than the proposal advanced by the Applicant. The Respondent at the time of the substantive hearing had resolved the issue of the non-payment in respect of entitlements, had instigated proceedings in the Caloundra Magistrates Court, all in less than amicable circumstances and the failure to respond the offer of settlement would have to be taken as a rejection of the said offer. In other matters before the Commission in the form of Byran Management (Queensland) Pty Ltd trading as Grand Central Toowoomba v Rhonda Hansen (1999) 160 QGIG 132; Riley v KMKM Aboriginal Corporation (2000) 164 QGIG 45 and Hoffannbeck v Gold Coast Equipment Hire Sales and Service (2000) 163 QGIG 359 the failure to respond in a reasonable way to a reasonable offer of settlement has attracted an award of costs by the Commission. The difference between those matters and this application is that the amount offered by the Applicant was substantially higher than the amount awarded by the Commission. The amount sought was 1.5 times more than that ordered by the Commission. The Applicant had further sought to rely upon the actions of the Respondent prior to the lodgement of the application, however that argument could never succeed in that s. 335 of the Act relates to the conduct of an application and therefore is unlikely to have relevance to events that occurred prior to the lodgement of an application. Another of the matters relied upon in support of the application was the application filed in accordance with s. 278 of the Act and subsequently withdrawn prior to being considered by the Commission on the issue of joinder. It would be folly of the Applicant to consider that the Commission would give serious consideration to such argument. Finding In consideration of all material before the Commission, I am of a view that the Respondent, whilst unsuccessful in the substantive matter, had every right to contest the application for reinstatement and in doing so did not because of an unreasonable act or omission cause the Applicant in the conduct of the proceedings to incur unnecessary costs. The failure of the Respondent to accept the offer to settle immediately prior to hearing had some degree of justification in that the amount awarded by the Commission was of a considerably less amount. The application for costs is dismissed. -- 3 of 4 -- 4 I so order. J.M. THOMPSON, Commissioner. Hearing Details: 2005 11 and 12 October 2006 24 January 2006 Appearances: Mr J. Ryan, of Ryans Solicitors, for the Applicant. Ms K. Prior, of Prior and Associates, instructed by Grants Lawyers, for the Respondent. Released: 31 January 2006 Government Printer, Queensland The State of Queensland 2006. -- 4 of 4 --