Collins v Peter Collinson t/a Canterbury Lace [2005] QIRC 26 (2005) QIRC 213

[Extract from Queensland Government Industrial Gazette, dated 11 March, 2005, Vol. 178, No.10, pages 213-214] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 335 – application for costs Lizabeth Collins AND Peter Collinson t/a Canterbury Lace (No. B1635 of 2003) COMMISSIONER BECHLY 2 March 2005 DECISION By decision dated 29 September 2004 a finding was made that Ms Lizabeth Collins had been improperly terminated from employment with Peter Collinson trading as Canterbury Lace. Ms Collins was awarded six months’ salary by way of compensation. An application has now been made for an award of costs. The parties agreed that this application should be dealt with by way of written submissions and supporting affidavits. An outline of various events is as follows:  Ms Collins’ employment was terminated on 16 September 2003;  on 23 September 2003 by way of a letter to the Manger of Canterbury Lace, Victoria, claiming an unfair dismissal, an offer was put by the applicant settle the matter;  the letter of 23 September concludes in the following terms “If our clients demands are not met by 5:00pm on 30 September 2003 we will assume that you are asserting that our client’s employment has been lawfully terminated and we advise our client will immediately file an application for reinstatement with the Industrial Relations Commission without further notice.”;  there was no response and an application for reinstatement was filed by the applicant on 7 October 2003;  a conference was held before the commission on 22 October 2003 at which the respondent, Mr Peter Collinson proposed that he was unaware as to whether he was the employer of the applicant. A subsequent private telephone conference was held between representatives of the parties later that day. The matter was not resolved;  on 11 November 2003 a private discussion took place between representatives of the parties. While there is some contest on the point, I accept the material indicating that the offer of 23 September was repeated at this conference;  on 25 November 2003 a letter of offer was sent to the applicant by the respondent referring to discussions on 12 November and proposing the payment of an additional two week’s gross salary and some other matters as a settlement of the matter. This offer arose from discussions between the parties on 11 or 12 November 2003, but more likely from a discussion on 11 November;  on 17 December 2003 a final conference was held in the Commission when offers of settlement were made by both parties. Each were rejected; and  subsequent to this the matter went to callover and dates were set for hearing and exchange of material. Mutual agreement was reached on relatively minor changes to dates when material was to be exchanged. The matter proceeded to hearing on the dates designated but was later adjourned to 9 August 2004 to cater for the hospitalisation of the respondent’s principal witness. The applicant seeks to recover costs for the following:  conciliation conference between applicant represented by counsel and clerk and P. Collinson on 22 October 2003;  later direct teleconference between parties on some date;  teleconference between parties’ representatives on 11 November 2003;  conciliation conference on 17 December 2003;  teleconference between parties representatives on 19 April 2003;  instruction to sue;  preparation for trial;  settling affidavits;  advice on evidence;  trial;  prepare and settle list of documents; and  costs of the application for costs. The Act, at s. 335(1)(b) provides as to “Costs” that “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) … -- 1 of 3 -- 2 (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.”. It is contended for the applicant that the discretion to order costs in this matter is triggered by a combination of the following events:  an offer to settle on 23 September 2003 which was not responded to by the employer;  inability to deal with the issue at the first conference on 22 October because the respondent indicated that he was unaware of whether he was the employer of the applicant;  a further conference set for 31 October by the parties was adjourned so the respondents counsel could obtain instructions;  the applicants case was sound from the very beginning and failure of the respondents to respond to the offer of settlement, first made on 23 September amounted to an unreasonable act or omission in the conduct of the application which caused costs to be incurred by the applicant. The respondent contends that non-response to the offer of 23 September 2003 was not an unreasonable act or omission connected with the conduct of the application because that offer lapsed before the applicant’s dismissal application was filed and before the extent of the allegations were known. Further that an offer of settlement to the applicant was made by letter of 25 November which was not accepted. It is further contended that the first conference on 22 October was not wasted because counsel for the respondent and the applicant spoke later on that day. For the applicant it is argued that the failure to respond to the offer of 22 September was an unreasonable act or omission connected with the conduct of the application. That is the failure of the respondent to respond to an offer made prior to the filing of an application does not prevent its actions from being caught within the terms of “an unreasonable act or omission connected with the conduct of the application”. I was referred to Customs v Pressure Tankers, a decision of the Full Court of the Federal Court of Australia (115 ALR 1 at 10) to support the contention that in a statutory role the words “connected with” are capable of a wide range of relationships ranging from the direct and immediate to the tenuous and remote and further that a common meaning of “connection” is “relation between things one of which is bound up or involved with t he other.”. While it may be argued that the act of dismissal itself does not enliven s. 335(1)(b) it is reasonable to consider the actions of the parties subsequent to termination to determine whether s. 335(1)(b) should be enlivened. In this case the applicant, within a few days of the dismissal, caused a letter to be sent to the employer seeking:  a statement of service as entitled under the Act;  an undertaking that no negative comments will be made about the applicant.;  payment of unpaid overtime;  correction of an Employment Separation Certificate to indicate that the applicant did not resign but was terminated;  payment of compensation in the amount of $7,500. It was the lack of response by the respondent to this letter which caused the filing of the application. The significance of the offer of 23 September should have been clear to the respondent. Failure to respond would cause a formal application for reinstatement to be made. There was a direct connection between the letter of offer and the conduct of proceedings in the Commission sufficient to enliven the provision of s. 335(1)(b). This offer was later repeated by the applicant and rejected although a counter offer was made by the respondent proposing quite minimal relief. In considering this matter the comments of McKenzie J in Goldman v Data General Australia Pty Ltd as to the ideal of inexpensive dispute resolution through the processes available under the Act need to be taken into account. However, on a consideration of the evidence as to the procedural defects in bringing about the termination it should have been apparent from the outset that the process used to terminate the applicant failed to meet reasonable standards of fairness as provided in the legislation. The refusal of the employer to respond to the initial offer of the applicant caused her to incur costs. The refusal or neglect by failing to respond to the offer of 23 September was unreasonable. That refusal caused the employee to incur costs associated with filing the application and attending the conference required by s. 75. At that conference, the employer Mr Peter Collinson, conducted himself in a strange fashion in that he proposed that he did not know if he was the employer of the applicant notwithstanding that she was the manager of one of his stores. This inhibited the resolution of the matter through conciliation by the Commissioner dealing with the matter at that time. -- 2 of 3 -- 3 Further costs were incurred when the applicant’s legal representatives conferred with the respondent’s legal representatives in the absence of the Commission. The rejection of the applicant’s offer to settle, in the light of the inappropriateness of the employer’s termination action, was unreasonable. In all the circumstances I determine that an award of costs should be made to the applicant. An itemised list of costs has been provided by the applicant for consideration. I order that the respondent Peter Collinson trading as Canterbury Lace pay to the Applicant, Lizabeth Collins, the sum of nine thousand dollars within twenty-one days of the release of this decision to the parties. R.E. BECHLY, Commissioner. Hearing Details: 2004 29 November 09, 23 December 2005 04 January (All Written Submissions) Appearances: Mr J. Merrell instructed by Blake Topping Solicitors on behalf of the applicant. Mr M. Ravech directly instructed by the respondent. Released: 2 March 2005 Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --