Connors v Mackay Life Enhancement [1999] QIRC 166 (1999) 161 QGIG 259

rIij 258 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 23 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 259 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace RelationsAct 1997- s . 218 - application for reinstatemen t Tracy Adrianne Connors AND Mackay Life Enhancement (No. B1622 of 1998) COMMISSIONER BLOOMFIELD 14 July 1999 Costs - Reinstatement - Applicant found to have r esigned voluntarily - Applicant found to be short term casual employee and excluded employee unde r Regulation 34(1) - Arbitrate d Matter - Commission found there was never an arguable case that Applicant was anything other than a uue casual employee - Pursuit of the application must be seen to have been either frivolous, vexatious or without reasonable cause in the absence of any othe r mitigating circums ta nce - Applicant to pay costs of Sl ,750 to employer within 6 months. DECISION At 160 QGIG I53 I dis misse d an application by Ms T racy Connors in which s he sought relief in relation to her allege d constructive dismissal by Mackay Life Enhancement Group Inc on 16 December 1998. Tue employer subsequently made an application for cos ts within the time specified at -�- 225 of the Workplace Relt,tions Acl 1997. The application for costs was dealt with by written ;-ubmiss ions from each of the parties. The employer sought recovery of the amount of $4,703.50 under Column G of the Magistrates Court Scale. The employer 's actual costs were said to have been $5,043.20. The employer argued that the applicant knew, O£ should have known, that the Commission did not have jurisdiction to hear her application becau se she was a casual employee. It submitted that s he nonetheless pursued the application thereby forci ng the respondent to incur a large amount of cos1s. The employer's submis sion indicated that the applicant was informed at the time of the inilial co nference, and again at the directions hearing, that she was an excluded employee and that the employer would contest the application on that jurisdictional point. Further, lhe employer's submission indicated tha1 Ms Co nnors' representative at the hearing had obviously been aware of the jurisdictional argument because he had requeste d the Commission to allow the matter to proceed "because 1he applicant had been employed for almost one year". It was suggested that 1his indicated that her representative was fully aware of Regulation 34 of lhe Workplace Relations Regul ation 1997 prior to the hearing. The employer 's submission also referred to the Commission 's decision which foun d 1hat the applicant had not been dismissed, or constructive ly dismissed. and that she had resigne d of her ow n free will. The submission also made reference to re-employment offers made 10 the applicant after her resignation and suggested that the pursuit of the application, in all of those circumstances, was vexatious. In an extensive submission in reply Ms Connors argu ed tha1 the circums1ances surrounding her termination of employment and her employment status had been pursued in the Commission in good faith in the genuine belief that a remedy could be achieved through the Commission. It wa s suggested that nothing which the applicant did forced the respondent to incur legal costs. In fact, the applicant had opposed legal representation "to avoid an over ly litigio us proceeding". Ms Connors also argued that her em.ployment status was not clearly definable and was capable of being argued before the Commission. It was s uggested th.al it had only been finally determined after the Commission receive d oral an d documentary evidence. Had the Commission accepted the applicant's arguments the exclusions in the Regulations would have been overcome and the matte r would have been de termined on its merits. Futther, the applicant contended that her resignation was made against her will and that the ac1ions of th e respondent leading to 1he is;11e of the resignation letter constituted a constructive dismissa l. The iot.erprntation to be given to the various events which led to her resignation was entitled to be argued by the applicant an d determined by the Commission. As it had turned out 1he applicant's version of events had not beeo accepted. By virtue of s. 720 of the /ridustrial Relt,tions Act 1999 the application for cos ts is to be determined un der Chapter 5 Part 2 of the Workplace Relations Ac1 1997. Section 225 of that Act empowers the Commission to order a party to an application to pay costs incurred by another pany if satisfied the pany: "(a)made the applicaciorifrivolously, vexatiously or wilhout reasonable cause; or (b) caused costs lo be incurred by !he otherparty because of an unreas onable act or omission co nnected with the conduc/ of the application.". Ms Connors submitted that she believed that she had an arguable case that her employment relationship was not that of a true casual but was more akin to that of a part-time employee. II was submitted that her un;11ccessful pursuit of such argument, when she be lieved that she had an arguable case, should not now cause the Commi ssion to view the application as having been made frivolously, vexatiously or without reasonable cause. Befor e S'UCh submission could 6-Ucceed it is clear that the applicant must have had an "arguable case''. A coosideralion of the evidence about the hours actually wor ked by Ms Connors, which are recorded in the published decision, reveals that her argumen1 about her employment status was simply unsustaina ble. Th ere was never an arguable case that Ms Connors was anything other than a true casual employee . Consequently, pursuit of the applica1ion must be seen to have been either frivolous, vexatious or without reasona ble cause in the absence of any other mitigating cirCU11'1.',1a nce. That mitigating circumstance was alleged to be thal the employer's dismissal was for a prohibited reason viz. because Ms Connors was involved in a same s ex relationship. However, Regulation 34(1) (unlike Regulation 34(3)) does not distinguish between terminations which ar e for an invalid r eason and terminations which ar e harsh, unjust or unreasona ble. Regulation 34(1) constitutes an absolute bar if lhe employee has not me! the requis ite criter ia (see Cora/prim Pry [Jd Ila Revamp Pry Ltd v Michelle Coxe/er ((1998) 158 QGIG 473D. On the facts of the case, which were well known to all of the panies, Ms Connors was never going 10 overcome the hurd.le created by Regulation 34(1) of the Workplace Relations Regulation 1997. Her application was doomed to failure from the outs et. It would not have mattered if the Commission had decide d that Ms Connors had been cons tructively dismissed. She would nol, because of her inability 10 overcome the first hurdle, have been able 10 achieve a remedy. She was always an excluded employee and there was simply no "arg uable case" that she was not. ::OOMA\GRPWISE\Q!RC-DOM.!RO-PO l ,GENERALJ :29168.1QGlG 23nf99 -- 1 of 2 -- 260 QUEE SLAND GOVERNME T INDUSTRIAL GAZETTE 23 July, 1999 Con..,4ucntly. I have decided lh,it Ms Connors purswt of the tniltal apphcatton wa.• either fnvolous. vexatiou• or an action which w.i., taken without ru..-on.thle ca05e. l'Uflher, her conunued pur<ull of the mitter �er the JUnsdtcnonal argument "a• dr.i"n to her attenuoo. con.muited •n unreasonable act on her pan. I h,l\c therefore de<,;1 ded 10 a\\ard the employer some re.:overy of 11' coru . The que,tion whi<,;h arises is wh.it 1s the amount which should be awarded. The employer chose to engage solicitors for the bulk of the conduct o f it, defcnc, Beeausc of Ms Connor<' obJecttOn to legal reprc•cnt.ltion an e.11p.,r1enced indu<Vial advoc.11c was retained to repre.•ent the employer before the Comnu•s1on. Ho,.c,er," sohcnor auendcd to insuuct the 1ndu51rial adH>catc. J a m not convinced 11ml it was nc�essary for the employer to engage a .mlicitor to represent iLS interests m the first mstanoe, I am also not convinced that 11 wa• necessary ford solic11or to attend the whole of the proceedings in Mackay. The advocate engaged to represent the employer at the hearing was an e.11pcr1cnccd advocat, well capable of repre$enltng the emplo)cr's iotcre<t• nght from the OU!Set . Se�1 10n 225 of the Workplace Rf'la11ons Act /997 is a dis<.Tet10nary provision. Exa1T11natton of various decisions of this tnbunal discto.,cs a variety of appro.1ches to the awardmg of co,ts. An analysis would also disclose th.tt the Commission has been reluctant to award costs against a wcll-mteotioned, but 111-mformed...pphunL Ho"<"er, g_i,•en the warning� to M s Connor,, and the tc,·d of her rcprcsentat1on, 11 coold never be said that she "a• 111 mform.:d .lbout the chances of ,11cccss of her .spphcallon. Jn all of the circumstances, a11 d notrng the d1�crction available to the Commission, I hdve decided Ill award oo�t.• in the amount of $1,750.00 against Ms ConnOI'• Jn deciding such anwunt I have attempted to achieve a balance between awarding the employer appropriate co•l recovery and Ms Connors obvu•h ladc of mc.1n•. Wbil<t I .1cknowlcdg< that the ,llll('IUDI awarded " only roughly one-third of the emplO)tr'• coru 11 v,,111, noncthcles.s, be quue a stzuhl� .tmounl ot money for '-1s Connors to find given her .ipparent finonc1al circum.<Uoces. It is my decision that the amount ofSl,750.00 i, to be paid hy Ms Tracy Adrianne Connors to Mackay Life Enhancement Group Inc within six months of today'� date. The ,mount m.t)I he paid in 10.,talmeots provided that it JS p.ud in full by 14 Januar) 2000. The ('ommiss1on d<tcrnunes .tnd orders accordingly. A.l 13100MFIEI.D, Commissioner. 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