Carter v McCrossan [1991] QIRC 176 (1991) 137 QGIG 127

126 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ l June, I 99 I I June, I 991] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 127 QUEENSLAND INDUSTRIAL RELATIONS COMM ISS ION I ndustria/ Relations Act I 990 s. 11.11 - applications for reinstatement Kerry Ann Carter AND Mark James McCrossan AN D Community Aid Abroad Trading Pty. Ltd. (Nos. B487 and B488 of /990) S HOP ASSL5TANTS (GENERAL) AWARD - SOUTHERN DIVISION COM MISSIONER BOUGOU RE 17 May 1991 Termination of Employment - Dismissal - Reinstatement - Harsh, Unjust or Unreasonable Dismissal - Unfair Dismissal - Joining of Matters - Manager and Shop Assistant - Employee Selection - Probationary Em ployment - Employee Performance - Incompetence (Employee) - Misconduct - Employer/Employee Relationship - Arbi trated Matter - Ms Caner did not perform probationary period satisfactorily - Termination of Ms Caner not harsh, unjust or unreasonable - Employer/ Employee rela- tionship bas broken down and Ms Caner's application refused - Mr McCrossan's dismissal influenced by poor performance of Ms Carter - Mr McCrossan's dismissal was harsh, unjust and unrea- sonable - Respondent ordered to re-employ Mr McCrossan or pay sum of compensation - No orders for costs made. D ECISION Application B487 of 1990 is an application by Ms Kerry Ann Carter for reinstatement 10 her former position of Manager of the Community Aid Abroad store situated at the McWhiners Centre, Fonitude Valley, Brisbane. Application B488 of 1990 is an application by Mr Mark James McCrossan fo r reinstatement to his fonner position of shop assist- ant at the Community Aid Abroad store situated at the McWhiners Centre, Fortitude Valley, Brisban e. In each case the Employer is CAA Trading Pty. Ltd. In each case Mrs Evelyn McCrossan lodged the application on behalf of the employee and she also appeared as duly authorised agent on behalf of each employee at the hearing. The hearing lasted 7 days, spread over some months primarily due to the unavailability of one of the respondent's witnesses and the unexpected length of the hearing. The aprl.ications were initially delayed somewhat due ei ther to the fa ult o the employees or the Union then acting on their behalf and these applications were both filed after expiry of the 2 I day period specified in tbe Industrial Relations Act 1990. Subsequently applications for enlargement of time were made and such appli- cations were granted by Commissioner Fisher on 21 December 1990. These applications for re instatement were by consent heard together. Tbe following witnesses were called on behalf of the 2 employees:- Mark James McCrossan, employee; Kerry Ann Caner, employee; Kathryn Ann McKeon, Chairperson of Community Aid Abroad Committee in Queensland; Kathryn Sri, Former Manager of Community Aid Abroad Trading Shop, Valley; Be verly Lynn Spence, Queensland Co-ordinator, CAA Trad- ing P/Ltd. The following witnesses were called on behalf of the respondent Employer.- Colin Denis Casey, Research Industrial Officer, SDA; Marshall Graham Turner, General Manager, Remm Prop- erty (Aust) Pty Ltd; Karen Marie Schaefer, Volunteer Worker, CAA Trading Store, Vall ey ; Julie Accatino, Assistant Manageress, Myer Centre; Karen Hungerford, Volunteer and Paid Employee of CAA Tradi ng; Simon Hallam, Divisional Manager, Retail Division, Com- munity Aid Abroad Trading Pty. Ltd. In addition, considerable documentary evidence was placed before me. The circumstances of each employee differ somewhat. It is appro- priate to deal firstly with the application on behalf of Ms Caner. Ms Caner commenced work as Manager of the store on I August 1990 at a salary of $23,0 30 per annum. By letter of 6 August 1990 (Exhibit 2) the Employer confirmed the offer of employment. Ponion of such letter reads as follows: - "This offer is subject to your serving a satisfactory probation period of three months. Either pany may terminate the contract at any time by the service of one month's notice in writing to the other. ". Such letter, Exhibit 2, also stated:- "The terms and conditions of the appointment are those set out in the CAA Trading Staff' Procedures Guide, a copy of which is kept at each shop.". During the hearing considerable reference was made to the Trading Staff Procedures Guide which became Exhibit I. On behalf of Ms Caner it was submitted that there had not been compliance with the Guide. In the case of Ms Caner her appointment was clearly subject to the serving of a satisfactory probation period of 3 months and her letter of termination dated 30 October 1990 (Exhibit 3) in part states:- "In accordance with your original conditions of employment as outlined in my letter to you (Ref: 902) I have decided not to continue your employmem past the three months probation period.". Mr Hunt for the respondent submitted that the application on behalf of Ms Caner should be dismissed fonhwith because of the probationary nature of her employment. II is necessary that I first Iv give some consideration to this submission. • The Shorter Oxford Dictionary for relevant purposes defines "pro- bation" as:- "The action or process of testing or putting to the proof; trial, experiment, investigation, examination. The testing or trial of a persons conduct, character, or moral qualifications: a proceeding designed to ascertain these especially in ref- erence to the period or state of tria l. ''. In Re J. M. Hamblin v London Borough of f.aling (1975) IRLR 354 the majority of the tribunal held that "a probationary employee knows tha t he is on trial and that he must establish his suitability for the post. The employer on his side must give the employee a proper opportunity to prove himself but he reserves the right to determine the employment with appropriate notice provided he has reason for so doing". In the matter of a dispute between Airline Hostesses Association and Qantas Airways Ltd. (1974 AILR 785) the question of ter- mination of probationary appointments arose and Commissioner Stanton is reported as havi ng sa id :- " In my view probation is: I. an extension of the selection process; 2. a period of training; 3. a time fot criticism, assessment and adjustment to standards of performance and conduct.". The Comm issioner went on to indicate that he did not agree that not in any circumstances should a tribunal seek to interfere in the termination of a probationary appointment and he went on 10 say:- -- 1 of 3 -- 128 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 1 June, 1991 "If, for example, it were shown that the decision to terminate had been based solely on false information, false accusation or misunderstanding of the alleged facts of an incident then I should see that it would be proper for a tribu~al to intervene.". In Hogan - v - Tumut Shire Council (1954) 54 SR (NSW) 284 Hogan was appointed to a position "subject to the above duties being carried out to the entire satisfaction of Council". McLelland J. held that the word "reasonable" could not be implied into the agreement in relation to satisfaction and the Council having come to an honest conclusion that it was not entirely satisfied was entitled to treat the contract at an end. In Connolly - v - Labor Daily Ltd. (1925) 25 SR (NSW) 398 the_ plaintiff was appointed "subject to satisfactory service". In an act10n for wrongful d1sm1ssal the Full Court held that the question for the Jury was not whether in their opinion the plaintiff had performed his duties in a way of which reasonable men could not reasonably complain as unsatisfactory but whether the defendant's dissatisfaction was honestly entertained, or whether it acted capri- ciously and in bad faith in dismissing the plaintiff. The above cases were of course decided under Overseas Federal and Interstate legislation but they do indicate how speci~l condi- tions may be attached to the employment contract. I was not referred to any provision of the Industrial Relations Act 1990 which in any way_ limits the right of a probationary employee to pursue an apphcat_ion for reinstatement. In my view in this particular case Ms Carter 1s entitled to pursue the application, however, a relevant fact_ in determining the application is that the appointment was subJect to serving a satisfactory probation period of 3 months. In my view the question of whether the termination was harsh, unjust or unreasonable has to be determined in the context that the termination was effected at the end of a period of probation which as I have indicated i_s imposed for certain purposes, including the assessment and tnaling of the employee. In this particular case the probation is a special condition of Ms Carter's employment imposed in addition to the matters contained in th_e_ Procedures Guide. Ms Carter is bound by such special cond1t10n but in effecting the termination at the end of the period of _probation I am entitled to consider whether the Employer's action was harsh, unJust or unreasonable under the circumstances which _include the most relevant fact that the employee was o~ probat10n for 3 months and clearlv must know that there is some likelihood that her employment may not be confirmed. Each case must be determined upon its own merits, however, if effect is to be given to the word probation then an employer acting bona fide must generally be able to much more easily terminate a proba- t10nary employee than an employee whose emplovment is at the relevant time not subject to probation. • Upon the material presented before me the Employer quite obviously decided that Ms Carter did not perform her duties satisfactorilv during the period of probation and I must determine whether such termination under all the circumstances, including the probationarv nature of the employment, was harsh, unjust or unreasonable. ' During the hearing a number of issues involving unsatisfactorv performance of duties as Manager, Disobedience of Procedure, Disobedience of Instructions, Insubordination, Misconduct and general breakdown in the employer/employee relationship were raised. I do not propose to refer to them in detail in this decision but I am satisfied that there were clear deficiencies in the manner in which Ms Carter generally carried out her duties as Manager. In particular there were dunng her management deficiencies in the regularity of banking and in the documentation in relation to lav- bys and other matters. There was a lack of co-operation and ·it seems 111 feeling between Ms Spence who is the Queensland Man- ager and Co-ordinator and Ms Carter. On one occasion when Ms Spence went to the Vallev store to sort out a problem she was asked to leave the shop by Ms Carter and told not to come back without a Solicitor. Under al_l of the relevant circumstances, many of which I have not ment10ned herein, I am satlsfied that Ms Carter did not perform her probationary_ period satisfactorily, although she was given a proper opportunity under the particular circumstances to prove herself. I am satisfied that in terminating Ms Carter upon com- pletion of the J)robationary period the Employer has not acted capnc1ously or in bad faith. I am very clearly satisfied that the terminat10n of Ms Carter as a probationary employee was not harsh, unJust or unreasonable. Furthermore I am satisfied that even. if _one entirely disregard_s the question of probation the termmat1on was not harsh, unJust or unreasonable. In mv view th_e situation had clearly developed whereby the Employer ~as left with no alternatlve but to terminate Ms Carter and in my view it was fully justified in doing so. In my view even if one disregards many of the issues pursued before me, the employer/employee relat10nsh1p has broken down and there is no possibility of it being re-established upon a proper basis. Under all of the relevant circumstances I am satisfied that the intervention of this Com- mission is not justified. The application by Ms Carter is refused. I will now deal with the application for reinstatement made on behalf of Mr McCrossan. When Ms Carter commenced duties as Manager of the store a vacancy existed for a shop assistant. The practice existed whereby the store manager could engage a person suitable to herself. Ms Carter offered the position to Mr McCrossan. A factor which contributed was no doubt the fact that Ms Carter already knew Mr McCrossan, having worked with him in a newsagency con- ducted by his parents. From time to time various allegations were made about the closeness of the relationship between Ms Carter and Mr McCrossan. Initially Ms Carter indicated there was a limited relationship, however, by the time this hearing had com- menced they were engaged and on the second last day of the heanng their agent announced they had by then married. Ms Spence, the Queensland Manage_r and Co-ordinator, was clearly reluctant to see Mr McCrossan appointed and when she interviewed him on 13 August 1990 she completed a job selection check list (Exhibit 11). Ms Spence judged Mr McCrossan as unsuitable. On Exhibit 11 Ms Spence made certain assessments of Mr McCrossan and from what I saw of him in the witness box whilst giving evidence, and upon the evidence generally I would find at least most of those assessments reasonably accurate. Regardless of the circumstances, the fact is that following advice from the_ superior of Ms Spence, Mr McCrossan was engaged as a shop assistant on one month's probation as from 15 August 1990. On 13 September I 990 Mr McCrossan was dismissed and given one week's notice by Ms Spence, however, as a result of represen- tat10ns he made to a Mr Hammersmith, the General Manager, he was re-employed without any loss of time. Mr Hammersmith confirmed the re-employment by letter of 26 September 1990 (Exhibit 24) to Ms Carter. Portion of such letter reads as follows:- '·The following is a brief list of the decisions mutuallv agreed upon, and to be undertaken by yourself as Shop Manager: 1. Advise Mark McCrossan of his re-employment, 2. Arrange with Bev Spence to have Mark work at our Brisbane shop on occasions, to gain experience. 3. Arrange for Mark to pursue and engage in a course to improve his communication skills. 4. Encourage an improvement in Mark's appearance. 5. Give preliminary consideration to Mark's hours of employment, keeping in mind the busy Christmas period followed by the quiet Jan-Feb period. There is no pro- vision in your budget for overtime to be worked. T_his programme is to be re-assessed by Simon Hallam. upon his return from overseas.". In due course Mr Hallam, who was the Manager - Retail Shops. returned from overseas and visited Brisbane and terminated the services of Mr McCrossan as from 31 October 1990. By that date Mr McCrossan had served the second period of probation and his employment had been confirmed. The letter of termination does not set out any reasons for dismissal, however. at the hearing a number of matters were raised in justification for the dismissal. In this regard during his submission Mr Hunt on behalf of the respondent Employer stated:- l June, 1991] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 129 "In respect of applicant McCrossan, in addition to points made in points 2.1 and 2.2 of this summary applicant McCrossan should _neither be reinstated nor re-e~ployed for at least the following submitted reasons - unsatisfactorv perform_ance;_ disobedience of procedures; disobedience of instruct10ns; msubordination; iμ-oss miscoJ:duct; breakdown in the employe_r/employee relationship due to providing false employment mformat10n; breakdown in the employer/ employee_ relat10nsh1p due to providing to the employer false personal informat10n both prior to and during employment· refusal to carry out instructed operational procedures· refusal to carry out op~rational instructions; failure to obs~rve the special needs ot the employer. as instructed, in connection with issues_ surrounding employer supporters and volunteers; actmg not mthe best interests of the employer; unacceptable mcons1stencies; certain _Accounting Discrepancies; interfer- e_nce by the applicant m _the employer managerial discre- t10nary nghts; and there 1s an irretnevable breakdown in the employer/employee relationship.". The above is the same or similar to the allegations made against Ms Carter., In general terms it was_ said by Mr Hallam that Mr McCrossan s J)erformance was unsatisfactory and he was unsuitable for the work m quest10n. As I have already indicated Mr McCrossan's re-employment as from 13 September 1990 was subject to certain matters as set out m Exh1b1t 24 abovementioned. In particular Ms Spence was to arran$e with Mr McCrossan to work in the Brisbane shop to gain expenence. This was not done, due in my view to no fault on the part of Mr McCrossan. Ms Carter had certain absences on sick leave, Ms Spence was absent on leave from 10 to 24 October 1990 and generally there was lack of co-operation and communication between Ms Spence and Ms Carter. Exhibit 24_ also indicated that Mr McCrossan should engage in a course to improve his communication skills. On 4 October 1990 Ms Carter wrote to Mr Hammersmith enquiring as to how such course should be undertaken and generally asking for clarification. As at date of dismissal no reply had been received to such request. Another matter raised for attention in Exhibit 24 was Mr McCrossan's appearance which it setms directly related to his quite long hair. Ms Carter as Manager said she was satisfied with his appearance. Other persons were apparently unhappv with his long hair but were not prepared to be too precise about the matter. In relation to Mr McCrossan's performance of his duties it is relevant to note that during her evidence Ms Spence conceded that from) 9 September 1990 when he was re-employed until 1O October _1990 when she went on leave she had little contact with Mr McCrossan and Jt seems had no specific criticism of his performance. Another _matter which was afforded considerable attention during the_ hearmg mvolved a vase. Whilst some of the facts are not ~nt1rely ~,!ear It seems that a charitable organisation known as Mach I contacted the Valley store for a donation for a Charity Golf Day. ~r McCrossan handled the enquiry and was apparently mformed b~ Ms Carter that CAA Tradmg Pty Ltd could not assist. There 1_s evidence that Mr McCrossan then decided to donate the vase himself, apparently with Ms Carter's knowledge. There is e;idence that he paid approximately $20 for the vase which was part of the stock in the Valley store and made the donation Subsequently a letter, Exhibit 15, addressed to Ms Carter, Com~ mumty,Aid Abroad Shop 21 McWhirters Marketplace, was received f the CAA Valley Store thanking Ms Carter and in effect the store or. the donat10n. T_he Employer now complains that this action was _1rnprop_er and m fact the term '_'theft" was used during the heanng. It is now said that the retail value of the type of vase ~~volved was $40 a_nd whilst the vase cost the store $20 Mr .v,cCrossan had no nght to pay only $20 for it. This matter was discovered after dismissal and it seems that it is gow being used to support the dismissal whereas it may otherwise h:v~ been viewed differently. Probably Mr McCrossan did not ~ \_ e authonty to do what he did, but he apparently took the actwn he did with the knowledge of his manager Ms Carter who fould have mstructe~ him otherwise. Apparently he has paid at deast the cost pnce ot the vase himself although it was apparently Tinated on behalf of the Community Aid Abroad Valley store. . ere seems to have been no effort made to hide the matter from ?~sclo~~re as ,evidenced by the letter_ of appreciation Exhibit 15. E my v1~w tne vase incident does little to assist the respondent mployer s case. ~ do not propos~ to deal in detai_l with the numerous allegations gaimt Mr Mc( rossan. In my view many of the matters raised against Mr McCrossan are really the responsibility of Ms Carter. Ms Carter was the Manager of the store and it was in many mstances up to her to mstruct Mr McCrossan how to perform his duties. I am satisfied Ms Carter did not carry out her duties as store_ Mana&er efficiently, however, in my view there is a degree of inJust1ce involved when Mr McCrossan, as a shop assistant of only a few weeks experience is in effect held blameworthy because of the meffic1ency of the store Manager. I appreciate that in this case there was apparently a special relationship between Ms Carter and Mr McCrossan, however, the fact remains they must be dealt with ind1v1dually so far as these proceedings are concerned. That this _was not done is emphasised by the evidence under cross- examinat10n_ of Ms Spence at page 265 of the record where the followmg evidence was given:- "Q. Do you know what specifically caused his dismissal between 19 September and 31 October? A. I just think that between_ the two of them they showed total lack of com- munication and respect for C.A.A. as a trading--". At_page 266 of the record I questioned Ms Spence about the above evidence and she confirmed her statement and then gave the following evidence in answer to my questions:- "Q. Are you saying that factors relative to Ms Carter also contnbuted to the dismissal of Mr McCrossan? A. Yes.". Having heard considerable evidence and having considered it at length I am_ satisfied that in many respects Mr McCrossan's dis- missal was influenced by the poor performance of Ms Carter. When determining Mr McCrossan's application it is also relevant to consider certain other matters to which I earlier referred. When Mr McCrossan was re-employed on 13 September 1990 he was to be afforded expenence in the Brisbane office. He was also to undergo a course in communication. Notwithstanding that Mr McCrossan had not bee_n given a reas_onable opportunity to complv with .such matters which are_ mentwned in Exhibit 24, he wa"s dismissed, even though in evidence Ms Spence said she had had little contact with him between 19 September 1990 and 31 October 1990. Mr McCrossan was no longer on probation yet the procedures set out in the Staff Procedures Guide were not followed. No specific warnings were given in relat10n to vanous matters relied upon to Justify d1sm1ssal. When one considers all _the relevant circumstances, including the matters I have Just mentwned and the fact that many of his actions were_ committed under the authority of Ms Carter as Manager. I consider the dismissal of Mr McCrossan was harsh, unjust and unreasonable. Apart from the matters I have just mentioned it does seem to me that Mr McCrossan has suffered because of the poor performance and certain other _actions of Ms Carter. Whilst. because of the special relat1onsh1p mvolved, I can see how this has occurred, I am satisfied that Mr McCrossan was entitled to have his case dealt with by his Employer individually. Having found that the _dismissal was harsh, unjust and unreasonable under the particular circumstances I must now determine whether I should order the reinstatement or re-employment of Mr McCrossan. It is submitted that the employer/employee relationship has broken down and reinstatement or re-employment is not practicable. Mr McCrossan held a position as a full-time shop assistant. and merelv has to work under the supervision of a Manager. His position does not involve any special relationship with the Employer. I am satisfied that _the employer/employee relationship could be re- established, with some difficulty, however, I am satisfied that that course of action would not be appropriate. Upon the evidence and matenal before me_ I have some doubt that Mr McCrossan would prove to _be a satisfactory employee within the concept of the Community A1d_Abrnad orgamsatwn. In my view he was fortunate to obtamthe pos1t10n 1mt1ally. However, as I have alreadv indicated he was m fact employed and even re-emploved and in those clf,~umstances having been employed is entitled to be given a "fair go in relat10n to d1sm1ssal. I have duly considered whether I should order reinstatement or re-employment of Mr McCrossan, however. under all of the rele- vant circumstances I am satisfied that neither reinstatement nor re-employment would be appropriate relief in this particular case. Pursu_ant to the prov1s10ns of section 1 I.I 1(2)(c) of the Industrial Rela11ons Act 1990 I order that the respondent Employer either re-employ Mr McCrossan m his former position at the Valley store as from 27 M_ay 1991 or pay to Mr McCrossan the sum of $650.00 as compensation, _such re-employment or payment of compensation to be at the elect10n of the respondent Employer. I further direct -- 2 of 3 -- ,... l30 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I June, l 991 that the resvondent Employer notify Mr McCrossan and the Regis- trar in writing on or before 24 May 1991 of the election made. If an election is made to pay compensation then such compensation shall be paid on or before 27 May 199 I. In assessing compensation as above I am bound by the provisions of the Industrial Relations Act 1990. In the case of an employee with less than 1 year's service the maximum amount of compen- sation is one month's wages . In this case Mr McCrossan's total employment at the Award rate of pay was less than 3 months. In assessing compensation I have also considered what was said in Chenery - v - KJemiig Nursing Home (1988) 55 SAIR 544 . Finally Mr Hunt submitted that if either application failed that I should make an order for costs, including the cost of an agent, on the grounds that the application was frivolous or vexatious. Mr Hunt indicated that the respondent's costs would be in the order of $27,000. The power to order costs on this basis is new and is contained in section I I.I I(9) of the Industrial Relations Act 1990. Such subsec- tion reads as follows:- "(9) If, in the Industrial Commission's opinion, an appli- cation under this section is frivolous or vexatious, costs that may be ordered against the applicant include costs in respect of representation by counsel, solicitor or agent notwithstand- ing that the Commission has not certified as prescribed by section 8.18.". Mrs McCrossan strongly opposed an order for costs in respect of either application. As a result ofmy decision Mr Hunt's application can only realistically relate to the application on behalf of Ms Carter. The effect of section 11.11(9) is to expand the eeneral power to award costs under section 8. 18 in that whilst section 8. 18 severely restricts the power to award costs on behalf of any counsel, solicitor or agent, section I I.I 1( 9) permits costs of any counsel, solicitor or agent to be included in any order for costs if the application is judged to be frivolous or vexatious. I must firstly determine whether the application on behalf of Ms C.arter was frivolous or vexatious. The Shorter Oxford Dictionary defines "frivolous" as follow s:- "Of little or no weight or importance; ~ltry , trumpery; not worth serious attention: Manifestly futile; Characterised by lack of seriousness, sense, or reverence; given to trifling, silly." . Osborn's concise law Dictionary 4th Edition defines "Vexatious Action" in the following terms:- a~ent, the respondent incurred substantial general costs including airline fares for a witness. Whilst I certainly have a discretion in relation to costs there is an established practice of this Commission that each party generally bears their own costs. Of course each case must be determined upon its own merits. In this case the 2 applications were heard together with one application being refused and one application succeeding. Both employees were represented by the one agent and much of the evidence would have been called in relation to Mr McCrossan's application in any event, though no doubt each application would have been of less duration if heard individually. Mr Hunt submits that the agent for the employ- ees unnecessarily extended the hearing and there is some merit ID such submission, however, in the whole context of the case even with reasonable expedition the hearing would have still occupied a substantial number of days. I am not prepared to find that the enlarged hearing was due to any deliberate attempt to embarrass or annoy the respondent Employer. In my view the length of the bearing was due to some inexperience on the part of the agent for the em{>loyees, the many issues raised by the Employer as justifying dismissal and a degree of care and caution exercised by the agent in representing the employees. Unfortunately the agent, Mrs Evelyn McCrossan, as mother of one applicant, had a direct personal interest in the matter which at times meant that her actions as agent were not entirely independent. It is also appropriate to say that Mr Hunt on behalf of the Employer did clearly restrict the presentation of his case, apparently ID an endeavour to restrict the length of the hearing. In my view in any proceeding of this nature it is relevant for all parties to bear in mmd that whilst any party is entitled to present their case in a reasonable and effective manner, an application for re instatement should be bona fide and should not be used as a means to deliberately annoy or embarrass an opponent. Any party who adopts the latter course, particularly during a hearing, runs the risk of being ordered to pay costs. In the particular circumstances of this case in the exercise of my discretion I consider that no orders for costs should be made and that each party shouJd bear their own costs. The Commission orders accordingly. R.W. BOUGOU RE, Commissioner. Appearances: - Mrs E. McCrossan and Mr J. McCrossan for Ms KA. Carter and Mr M.J. McCrossan. Mr K.J. Hunt of Kenneth Hunt and Associates for community Aid Abroad Trading Pty. Ltd., with him Mr R. Swain from the Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers). "A proceeding in which the party bringing it is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or which is not calculated to lead to any practical Operative Date: B487/90 N/ A; B488/90 27 May 1991 result. Such a proceeding is often described as 'frivolous Decision - Reinstatements and vexatious' . .. " . In Norman - v - Matthews (1916) 85 UKB 857 at 859 Lush J. said:- "There is an inherent power in every Court to stay and dismiss actions or applications which are frivolo us and vexatious and abusive of the process of the Court ... In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before th e COurt. ". In the particular circumstances of Ms Carter's case I am not satisfied that she had no cause of action and in my view the application on her behalf was not one which on its face a reasonable person would properly treat as not being bona fide . As Ms Carter's case developed before me it did become evident, particularly as a person subject to probation, that she faced considerable difficulties, however, it does seem that her application was bona fide and was not made merely to annoy or embarrass the Employer. I am not prepared to find that the application was frivolous or vexatious. The question then arises as to whether I should make an order for costs under the general provisions of section 8. I8 of the Act. In this case it was submitted that in addition to the costs of the I June, 1991] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE .,iJ I 131 i- ij l • l -- 3 of 3 --