In the matter of a claim for relief relating to the dismissal of Donny Micallef by Nuteck Communications Pty Limited [2003] NSWIRComm 1039 (28 August 2003)

Last Updated: 22 September 2003

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

CORAM: CONNOR C

Thursday, 28 August, 2003

Matter No. IRC 3278 of 2002

IN THE MATTER of a claim for relief relating to the dismissal of Donny Micallef by Nuteck Communications Pty. Limited.

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S U P P L E M E N T A R Y D E C I S I O N

On Tuesday, 29 April, 2003 I handed down my decision on an application by Mr Donny Micallef under of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90], of the 1996 Industrial Relations Act. Mr Micallef had been employed as a cable technician by Nu Teck Communications Pty Limited, installing telephone systems in residential, commercial and industrial premises. When his services were terminated on Tuesday, 23 May, 2002 he had lodged his Part 6 application seeking monetary compensation. I was prepared to categorize the termination of Mr Micallef's services as a genuine retrenchment brought about by the reorganisation of the Nu Teck business operations. Mr Micallef had been given some time to consider his position on an offer of work on a contractual basis but, as I indicated in my decision (at p.4), he had, in a sense, "...jumped the starter's gun..." by leaving his employment earlier and prompting his dismissal by Nu Teck.

In my decision I acknowledged (at p.5) that Mr Micallef retrenchment may still give rise to a legitimate claim under Part 6 [Outboard World Pty Limited v. Muir (1993) 51 IR 167 at p.182]. However, I commented further (at p.6) that:

"...the type of retrenchment situation which may possibly give rise to the intervention of a member of the Commission is where there is inadequate notice of retrenchment, where...the employee selected for retrenchment substantially out of seniority order or where the selection process is tainted in some manner. There is no evidence before me to give support to any such contention in this hearing, however. It was Mr Micallef who brought the extended period of notice which Nu Teck was prepared to give him to an abrupt end by walking out. It was the intention of Nu Teck to give him a '...transitional period...' to either take up the contract work on offer or make alternate arrangements. He was given notice of his retrenchment. He chose not to take that period of notice, whilst the other retrenched employees did so..."

I therefore dismissed Mr Micallef's Part 6 application. Mr Amirbeaggi, who represented Nu Teck in the proceedings, has now pressed an application for costs, writing to me on Friday, 20 June, 2003 seeking the re-listing of the matter. I set the matter down for a hearing on that argument on costs on Thursday, 28 August, 2003. Mr Boghossian, representing Mr Micallef in the proceedings, has opposed that application for costs.

There was some problems in bringing the initial Part 6 application to a conclusion. I had set the matter down for a hearing on Thursday, 6 February, 2003 and, since other commitments of an urgent nature for me intruded on that day, I allocating only half a day for it. The matter extended to a further half day on Wednesday, 2 April, 2003. That delay was not the fault of Mr Micallef, however. There were offers made by Nu Teck [$1,000.00] and counter offers made by Mr Micallef's representative [ultimately $2,000.00] but the matter proceeded into hearing when the parties were unable to reach agreement.

Costs are not an automatic outcome for a successful party in any Part 6 proceedings [Copperart Pty Limited v. Martin (1996) IR 58 at p.64]. They arise only by virtue of S.181(2)(c) - an unreasonable failure to settle the claim or a frivolous or vexatious claim, viz:

“The Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair Dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious.”

A vexatious action is one where the party bringing it is not acting in good faith and merely seeks to annoy or embarrass an opponent or which is not designed to produce any practical result. Roden J of the State Supreme Court in Attorney General v. Wentworth (1988) 14 NSWLR 481 held (at p.491) that a proceeding was vexatious if it was instituted with the intention of annoying or embarrassing a respondent, if it was brought for collateral purposes and not for having the court adjudicate on the issues or, irrespective of motive, it was so obviously untenable or manifestly groundless as to be utterly hopeless. That was not the case in these proceedings and Mr Amirbeaggi has not pressed his application for costs on that basis but on the grounds of the alleged unreasonableness of Mr Micallef to accept the offer that had been placed on the table by Nu Teck.

The question of what constitutes “reasonableness" in such cases is always a matter of degree. It differs according to the idiosyncrasy of the individuals involved and the times and circumstances in which the matter takes place. In the case of Part 6 applications, all the circumstances surrounding the dismissal must be taken into account. And as I indicated in my unreported supplementary decision of Wednesday, 4 May, 1994 in Luke v. Handicapped Children’s Centre [Matter No. IRC 2586 of 1994 at p.5] to which Mr Boghossian took me:

“...an order for costs on the grounds of an unreasonable failure to settle the matter should be contemplated only where there is such an obdurate refusal to participate in the discussions that there has been a total frustration of the conciliation process...”

Again, in my unreported decision of Thursday, 25 February, 1999 in Wehner v. Chakra Holdings Pty Limited [Matter No. IRC 1617 of 1998 at p.22], I commented that a party:

“...was always entitled to press its position in arbitrated proceedings and should not be penalised for doing so...”

I see the current proceedings before me in a similar light. I do not believe that, in terms of S.181(2)(c) there was an unreasonableness on the part of Mr Micallef in pressing his claim to go forward to arbitration in the light of the offer that had been made to settle the claim.

I therefore reject Mr Amirbeaggie's application for costs.

P J CONNOR

Commissioner