Fair Work Act 2009

s.394 - Unfair dismissal

Daniel Brendan Heaslip T/A Daniel Brendan Heaslip

Application for costs - lodged out of time - dismissed pursuant to s.587 of the Act.

[1] On 23 May 2019, Ms Lana Everett made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) in relation to the termination of her employment by Daniel Brendan Heaslip T/A Daniel Brendan Heaslip (Mr Heaslip).

[2] Ms Everett discontinued her application on 29 July 2019.

[3] On 20 August 2019 Mr Heaslip filed an application for costs against Ms Everett with the Commission. The costs application is made under s.400A of the FW Act. It has not been validly made, as it has not been filed within the 14 day time limit prescribed by the FW Act.

[4] On 26 August 2019 the Commission wrote to Mr Heaslip drawing his attention to the provisions of s.400A and s.402 of the FW Act, which state:

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC's power to order costs under section 611.

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(b) the matter is discontinued. [Underlining added]

[5] Mr Heaslip was advised that his costs application had been lodged outside the 14 day time limit prescribed by the FW Act, noting that it would have needed to have been received by the Commission no later than 12 August 2019 to be within time. He was also advised that there is no capacity for the Commission to consider an extension of time within which to make such an application, but was given the opportunity to provide submissions as to why his application could be considered/should not be dismissed.

[6] Mr Heaslip responded on 26 August 2019. In his response, Mr Heaslip attributes the cause for the delay in lodging his costs application to the Commission. He states that he made a request for the Commission to supply him with the relevant forms (Form F6), but that the Commission failed to send it out on time. He contends that he then made a second request to the Commission and this time the form was sent out. Mr Heaslip states that he received the form on 13 August 2019. Mr Heaslip called my Chambers later that day seeking confirmation of receipt of his submissions, and stated that he had spoken to a Commission case manager on 29 July 2019 and requested an application for costs be sent to him. He said that one week had gone by and he still had not received the form so he again contacted the Commission and spoke to "a lady" who posted the form to him which he received on 13 August 2019.

[7] On 28 August 2019 the Commission wrote to Mr Heaslip confirming receipt of the information he had provided with respect to his first costs application and advising that a decision would be made the following week about whether his application should be dismissed because it was made outside the 14 day period. Mr Heaslip was invited to provide anything further he wants to the Commission to consider, by Friday, 30 August 2019.

[8] On 28 August 2019 Mr Heaslip sent two further emails in response. In his first email, he stated that it takes four working days for mail to get to him (Queensland) from the Commission and four to five working days to return, and that if the Commission fails to send out the Form F6 on time all respondents seeking costs will miss out, and this is unreasonable. He also noted that the 14 days is assuming that all participants have the tools to scan documents receive and return them, that he does not have those tools and relies on the Commission posting on time. He says that this did not happen therefore on the basis that the Commission let him down, he contends that his costs application should be allowed to stand. In his second email, he said he has just checked with the Commission and they advised him that he made the request to be supplied with the Form F2 on 29 July 2019 and this is recorded on file. He says that, in view of this, he believes his application for costs should be considered reasonable and true.

[9] In his initial response, Mr Heaslip did not provide any dates as to when he contacted the Commission requesting a Form F6 costs application be posted to him. In his subsequent call to my Chambers on 26 August 2019, he said that he called the Commission on 29 July 2019, and again a week later after not receiving the form. He said he then received the form on 13 August 2019.

[10] A review of the Commission's file shows the following timeline of events. On 30 July 2019 Mr Heaslip called the Commission and, after inquiring about what form could be used for a cost application, requested a Form F6 be mailed to him. On 2 August he called the Commission to ask if the Form F6 had been posted to him and was advised by the case manager that they would check, and if it had not been sent out, they would send it to him.

[11] On 8 August 2019 the Commission received a further phone call from Mr Heaslip, inquiring as to what section in Q2.1 in the Form F6 he is supposed to pick. He was advised that if he wants to make costs application for unfair dismissal matter he can tick that box.

[12] On 16 August 2019 Mr Heaslip called the Commission inquiring if his Form F6 had been received. He was advised that it had not, but that a note would be left on file and he would be contacted by the Commission when it was received. He sent an email to the Commission the following day on 17 August 2017 setting out the reasons why he was requesting costs. The Commission responded to this email on 19 August 2019, stating that "When the Fair Work Commission receives your Form F6 - Application for costs, the Commission will contact the parties about the next steps."

[13] On 20 August 2019 a Form F6 costs application signed by Mr Heaslip and dated 7 August 2019 was received in the post by the Commission accompanied by a Statutory Declaration signed by Mr Heaslip and dated 12 August 2019. The envelope was post marked 13 August 2019.

[14] On the front page of the form F6 received by the Commission are the handwritten notes "received 7/8/19" and "copy posted to L. Everet on 13/8/19", with Mr Heaslip's initials next to the latter note. On 20 August 2019 Mr Heaslip called the Commission and left a voice message asking if his Form F6 had been received. The Commission returned his call and confirmed receipt of the costs application.

[15] The wording in s.402 of the FW Act is unambiguous. An application for a costs order under s.400A must be made within 14 days after the Commission determines the matter or the matter has been discontinued.

[16] Section 402 can be contrasted with other sections of the FW Act which also require applicants to make particular applications within specified time frames such as s.366, s.394 and s.774. Each of these provisions states that an application under that section must be made within a specified number of days; or

(b) within such further period as the FWC allows...

[17] No similar provision allowing an extension of time to be granted is included in s.402. As such, there is no specific power for the Commission to allow a further period within which to make an application for an order for costs where that costs application has not been made within 14 days after the matter has been discontinued.

[18] Separately I am satisfied that there is no general power within the FW Act for the Commission to extend time for making an application such as this where the application has not been made in accordance with the statutory time limits. In addition no further allowance is made in the Fair Work Commission Rules 2013 or any other instrument that would allow for time to be extended.

[19] In this instance, Ms Everett discontinued her application on 29 July 2019. The costs application was made on 20 August 2019 and so is not a valid application.

[20] To the extent that Mr Heaslip attributes the late lodgement of his costs application to the Commission not posting out the form on time, I am satisfied that Mr Heaslip received the Form F6 costs application by 7 August 2019 at the latest, and not 13 August 2019 as he contends. The Form F6 posted to the Commission is signed by Mr Heaslip and dated 7 August 2019, there is a handwritten note on its front stating it was "Received 7/8/19", and the following day, on 8 August 2019, Mr Heaslip called the Commission with a query as to how to complete the form. I also note that the statutory declaration accompanying the costs application is dated 12 August 2019. On the front of the application is the handwritten note "copy posted to L. Everet on 13/8/19" and Mr Heaslip's initials next to this notation. The application received by the Commission on 20 August 2019 is post marked 13 August 2019. I am satisfied that the application was not posted to the Commission until this date and was, by then, outside the 14 day time limit prescribed by the FW Act. As noted above, there is no basis on which the Commission can extend the period within which an application for costs can be made.

[21] In his email to the Commission on 26 August 2019 Mr Heaslip appear to indicate that he also seeks to make a costs application against the Commission. Mr Heaslip has been advised separately that there is no provision of the FW Act that allows for such an application.

[22] Section 587(1) of the FW Act provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[23] I acknowledge Mr Heaslip's frustration at having to respond to an application for unfair dismissal that was subsequently withdrawn. This frustration does not counter the strict requirements of the FW Act. Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act.

[24] Accordingly, the application is dismissed under s.587(1)(c) of the FW Act as it has no reasonable prospect of success. An order[1] to this effect will be issued separately.

[1] PR711815.

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