s.394 - Unfair dismissal

Application for costs - application for remedy for unfair dismissal

• [1] On 14 April 2025, I dismissed an application for an unfair dismissal remedy by Mr Peter Gazilas (the unfair dismissal decision). The application was made against Key Carpentry and Building Pty Ltd (Key Carpentry).

• [2] On 30 April 2025, the Commission received an application for an order for costs by Key Carpentry against Mr Gazilas under sections 400A and 611 of the Fair Work Act 2009 (Cth) (Act) (the costs application). The costs application is made on the basis that:

1. Mr Gazilas caused Key Carpentry to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter, and

1. It should have been reasonably apparent to Mr Gazilas that his application had no reasonable prospects of success.

• [3] Section 402 of the Act provides that an application for an order for costs under section 611 in relation to a matter arising Part 3-2 (Unfair Dismissal), or for costs under section 400A or 401, must be made within 14 days after the Commission determines the matter or the matter is discontinued.

• [4] The question is whether the costs application was made in time. For the reasons that follow, the answer is "No".

• [5] Although dated 28 April 2025, the costs application was first received by the Commission by email on 30 April 2025 at 4.12pm to the email address "lodge@fwc.gov.au". Mr Gazilas was copied into the email. In the covering email attaching the costs application, Mr Tim Horne acting as legal representative for Key Carpentry, wrote:

"Please see attached Application for Costs which was posted to the Fair Work Commission on Monday."

• [6] The "Monday" referred to in the email was 28 April 2025. That is a date of significance to the costs application because it was the 14th day "after" the unfair dismissal decision was made. That is, it was the date by which the costs application was required to be made to the Commission. I reject the submission of Key Carpentry that the 14-day time limit expired on 29 April 2025.

• [7] Rule 15 of the Fair Work Commission Rules 2024 (the Rules) deals with lodging documents in the Commission. Under rule 15(2), a document must be lodged with the Commission by:

(a) physically delivering the document to an office of the FWC between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the FWC; or

(c) emailing the document in accordance with rule 16; or

(d) using the FWC's online lodgment facilities in accordance with rule 17.

• [8] Rule 16 of the Rules deals with lodgement of documents by email. Under rule 16, documents can be lodged with the Commission by emailing the document to an email address approved for that purpose (in this case, lodge@fwc.gov.au) or if the email was in relation to a matter allocated to a Commission Member, to the email address for the Member's chambers. This requirement was met by the email of 30 April 2025 when the costs application was sent to lodge@fwc.gov.au. At that time, the matter was no longer allocated to my chambers because it had been determined, and the file was closed.

• [9] Rule 21 of the Rules required the costs application to be served by Key Carpentry on Mr Gazilas "as soon as practicable after lodgement with" the Commission. Service of the costs application was effected on 30 April 2025 when Mr Gazilas was copied into the lodgement email sent to the Commission. There is no evidence that it was separately served on Mr Gazilas by post.

• [10] Key Carpentry submits that the costs application was made in time on the basis that a hard copy of the costs application was posted to the Commission on 28 April 2025.

• [11] A hard copy of the application was received by the Commission in an Express Post - Prepaid envelope on Friday, 2 May 2025. There is no timestamp on the envelope. Tracking information gleaned from the tracking number on the envelope indicates that the item was first processed at an Australia Post tracking facility known as SYDNEY SOUTH NSW on 1 May 2025 at 4.16pm. There is no information, either in the tracking information or otherwise, to establish when the express post envelope was actually posted. Information on the envelope itself indicates that ordinarily, express post envelopes will be delivered by the next business day, although I accept the submission that sometimes circumstances will mean that the actual delivery time is longer.

• [12] The only evidence of when the costs application was posted to the Commission is an email from Mr Yanni Docos, Director of Key Carpentry, dated 30 April 2025 to his lawyer. It says:

"Hi Tim,

I just spoke to Maria; it was put in the post on Monday afternoon."

• [13] The email is hearsay. There is no information about who Maria is, or where the letter was posted, or whether it was posted over the counter or otherwise. There is no other evidence to corroborate the assertion said to have been made by Maria. Given the lack of evidence in this regard, I am not able to be satisfied about when the costs application was posted.

• [14] Key Carpentry submits that the application "arrived comfortably" within the prescribed statutory period. It says this is because the date an application is delivered to the Commission is not the same as the date an application is deemed to be "made" or "posted". I reject the submission. An application is made to the Commission at the time that it is received by the Commission. It need not be complete, but it must be received. If the application is made by email and commences a matter in the Commission, lodgement is taken to have occurred when acknowledged by the General Manager. Once this acknowledgement is sent, the application is taken to have been lodged at the time it was received electronically by the Commission.[1]

• [15] In this case, the costs application was treated as the continuation of a matter rather than as commencement a new matter, such that rule 16(3) did not apply. Chambers acknowledged receipt of the costs application on the same day that it was received on 30 April 2025. This is the earliest the costs application can be said to have been made and two days after the end of the 14-day lodgement period.

• [16] Key Carpentry also relies on section 160 of the Evidence Act 1995 (Evidence Act) in support of its submission that the costs application was made in time_._ The Commission is not bound by the Evidence Act in relation to matters before the Commission[2] although it is a useful guide on matters of procedure. However, section 160 of the Evidence Act does not assist, or have the effect contended for by, Key Carpentry. Section 160(1) provides:

"(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted."

• [17] Applying the counting rule in section 160(1) of the Evidence Act to the assertion that the express post envelope was posted on 28 April 2025, the costs application would be presumed to have been received by the Commission 7 working days later (exclusive of weekends and relevant public holidays), on 7 May 2025. That date is well outside the 14-day lodgement period in section 402 of the Act. In any event, the presumption is rebutted by the fact of receipt of the express post envelope by the Commission on 2 May 2025 (also outside the 14-day lodgement period).

• [18] The costs application was not made within 14 days after the substantive matter was determined by the unfair dismissal decision. It was not made in accordance with the Act.

[1] Fair Work Commission Rules 2024, r.16(3)

[2] Fair Work Act 2009, s.591

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