Byvan Management (Queensland) Pty Ltd trading as Grand Central Toowoornba v Hansen [1999] QIRC 28 (1999) 160 QGIG 132

132 QUEENSLAND GOVERN11ENT INDUSTRIAL GAZETfE 19 February, 1999 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations A.et 1997 - s. 215 - application for costs Byvan Management (Queensland) Pty Ltd trading a .. Grand Central Toowoornba AND Rhonda Hansen (B1350 of 1998) COMMISSIONER FISHER 3 February 1999 Application for reinstatement _ Previous decision_ Compensation Costs - s. 225 Application not vexatious - Original settlement offer rejected - Applicant acted unreasonably- Applicant to pay costs to respondent w1thm four months. DECISION On 23 December 1998 l released a decision that Ms Hansen had been unfairly dismissed from her position of Customer Service Officer with Byvan Management (Qld) Pty Ltd trading as Grand Central Toowoomba. Toe Commission ordered the respondent to pay two weeks wages as compensation. The respondent was at liberty to pursue a costs application in light of an open offer of settlement of two weeks pay made on 3 Dec_ember 1998. The parties were directed to have discussions over the outcome of the decision before the costs matter would be hst0d. The Commiss10n has now been advised those discussions proved fruitless. The Commission heard extensive submissions from Mr Patti, representing the respondent employer on the reason costs should be awarded again~ Ms Hansen. His arguments were supported by a number of decisions from members of this Commission touching _on various aspects of costs apphcat1ons. All of this material, together with Ms Hansen's limited response, has been taken into account m reachmg this decision. I accept Mr Patti's initial submission that costs applications ha.veto be determined in accocdance with s. 225 of the Workplace Relations Act 1997. Consistent with the provisions of s. 225(1)(a) Mr Patti argued that Ms Hansen's apphcation was made vexatiously and that l1l terms of s. 225(1)(b) Ms Hansen acted unreasonably with regard to the conduct of the case such that costs were incurred by the respondent. Elabocating on his argument concerning the vexatious application, Mr Patti contended that the application was not calcula1ed to lead to any practical result. To that end Mr Patti pointed to the applicant being unable to negotiate a reasonable settlement because of narrow parameters for settlement and her rejection of the (l>en offer made on 3 December 1998. Jn my view the application was not made vexatiously and whether an application was made in this _manner is wh,n i.s required to be_ determi~cd in s. 225(1) (a) of the Act. Ultimately Ms Hansen's claim for unfair dismissal was accepted by the Comnuss10n and an order for compensation madt. In this light the application cannot be said to have been made vexatiously. l consider that Mr Patti's arguments with respe-et to s. 225(1)(h) have merit. The respondent made an open offer of compensation which was in th~ same amount as that awarded by the Commission. The respondent clearly flagged its mtention to seek costs in the event the offer was not accepted._ This was an addition to its expressed intention at the first conciliation conference. Ms Hansen acknowledged that at the second conc1hat10n conterence rn December 1998, the Commission suggested two weeks may have been an appropriate time frame dunng she could have been advised that her performance was under review. The implication of this, which I believe w~ld have been expressed, is that two weeks wages as cornpc-.n~at10n would not be an unreasonable settlement. Her subsequent reject of the open offer of this a.mount left Ms Hansen exposed to this costs claim. Ms Hansen consulted her solicitor regarding the settlement offer and acted on advice to reject it. 1?e additional resJX)nse ~as to reduce her settlement figure from $5000 to $4000. On my calculations these figures were n_ever achievabl_e _as they were m excess of Ms Hansen s loss -::i,over .t:te r~elevant s1~ month period. In all of these circumstances the Commission is of the view that m decidmg to reJect the offer_of settle-ment made_on ~ Decernbvr 1998 M:,; Hansen acted unreasonably so as to cause the respondent to incur costs. I am satisfied that given the warnmg issued but despite bemg untanuhar with this jurisdiction Ms Hansen must have been aware that a costs order w~s a realisuc consequence o~ further proceedmgs. It was not the case that Ms Hansen acted in the absence of legal advice. (See Townsville City Council v Brennan (1998) 157 QCJIG 92) Mr Patti provided the Commission with details of the co.>ts sought. Included was an amount of $2647 being witn~ss expenses for Mr Madlem~r who attended the hearing in Joowoomba from Melbourne. Jbis figure included a component for travel costs and one days consultancy fees. Mr Patti sought the costs order include Mr Madlener's exptmses given the applicant's request for his appearance as a witness. The applicant's solicitor requested the attendance at the hearing of the person(s) concerned who conducted the mystery shopper surveys or objection taken to their admission. Given this position, the respondent arranged for Mr Madlener to attend. While I can understand the request for Mr Madlener's costs to be met, I consider Mr Madlener would have _been required to attend in any event. Had the mystery shopper results not been substantiated by oral evidence. then they would have had lrnuted _evidentlary value. Mr Madlener should ~ave ~een an essential witness for the respondent without any request for his appearance being made by the apphcant. Accordmgly, I do not rntend to a\'fard coSts for this attendance. :Mr Patti submitted details of professional costs. An amount of $2285 was claimed. The Commission has considered the submissions in accordance with Schedule B of the Magistrates Court Scale of costs _in operat10n at the time of_ the hearing. The relevant items are preparation for tnal, solicitor on hearing and instructions for filing ~idavits. I have not mcluded mstruct10ns to detend as such instructions would have been taken in advance of the open offer of settlement and Ms Hansen s unreasonable act of refusal. In the circumstances I order that applicant pay costs in the order of .S772.00 to the respondent. By coincidence only this amount is similar to the amount awarded by the Commission to Ms Hansen as compensation for her unfair ~ismissal.. In directing the parties to confer the Commission had anticipated that the parties rrught agree to the order tor compensation bemg off.set by cosL' at that tur~ unquantified by the Commission. That explains my reference in my ftrst decision to Ms Hansen's apparent difficulty m meetmg any cos~s _order made against her. The Commission understands this proposition was put by Ms Hansen to the respondent but reiected. It would have been benef1c1al all round if it had been accepted. The compensation has been paid in accordance with the Commission's decision. Ms Hansen is_ currently impecunious and T expect the compe~sation to have been directed to the payment of pressing accounts. I have no wish to make matters considerably worse but I have to bear m mmd the findmg of unreasonable actions. Against this background I give Ms Hansen four months to pay to the respondent the amount of costs ordered against her. 19 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 133 Order accordingly, G.K. FISHER, Commissioner Appearances - Ms. R. Hansen on her own behalf. Released: 3 February 1999 Mr M. Patti of Employer Services for the respondent. #################ffl#################################################################l###############ffl##################I -- 1 of 1 --