Industrial Relations Commission of New South Wales CITATION: Cocksedge v. Centenary Hill Pre-School [2005] NSWIRComm 1076 APPLICANT Vicki Cocksedge PARTIES: RESPONDENT Centenary Hill Pre-School FILE NUMBER(S): 1567 of 2004 CORAM: Connor C CATCHWORDS: costs application - unreasonable failure to settle and unfair dismissal claim - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Luke v. Handicapped Children's Centre (unreported) CASES CITED: Wehner v. Chakra Holdings Pty Limited (unreported) HEARING DATES: 05/17/2005; 06/03/2005 DATE OF JUDGMENT: 06/24/2005 APPLICANT Megan Cameron Turner Freeman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Paul Matters Leo and Morrison Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 24 June, 2005 Matter No IRC 1567 of 2004 Vicki Cocksedge and Centenary Hill Pre-School Application for costs under S.181 of the Industrial Relations Act, 1996 SUPPLEMENTARY DECISION [2005] NSWIRComm 1076 1 On Friday, 4 March, 2005 I handed down a decision on an application lodged pursuant to Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act by Ms Vicki Cocksedge who had been employed as a full-time child care worker with the Centenary Hill Pre-School under the terms of the Miscellaneous Workers Kindergartens and Child Care Centres (State) Award. Ms Cocksedge's employment was terminated on Friday, 20 February, 2004 after eight years of employment. In my decision I highlighted certain issues, viz: (i) that there was no real notice given to Ms Cocksedge that her services were to be terminated; (ii) that there were no effective discussions between Mrs Sandra Jensen, the proprietor of the day care centre and Ms Cocksedge to explore alternative options in Ms Cocksedge's employment, even when Ms Cocksedge indicated her preparedness to work part-time; indeed, I formed the view that an offer of part-time work by Mrs Jensen, the proprietor of the day car centre was not genuinely made; and (iii) that notwithstanding assertions by Mrs Jensen, the proprietor of the day care centre that there was "...nothing personal..." in the termination of Ms Cocksedge's services, the sequence of events which led to the termination of her services suggest to me that was not the case and that the retrenchment was motivated by factors other than the financial constraints to which Mrs Jensen alluded in her evidence; to that extent, it was not a bona fide retrenchment. I consequently concluded that the termination of Ms Cocksedge's services was unfair - "harsh", "unreasonable" or "unjust", to use the language of S.84(1). I ordered Mrs Jensen to pay the sum of $8,750.00 to Ms Cocksedge. 2 An application has subsequently been lodged for and on behalf of Ms Cocksedge for costs and that matter was scheduled for a hearing on Tuesday, 17 May, 2005 in the Commission's premises at 90 Crown Street, Wollongong. But the matter did not proceed to hearing on that day. There was some confusion over the venue for the hearing - Sydney or Wollongong and the proceedings were aborted on the basis that the parties would provide written submissions. I received written submissions on behalf of Ms Cocksedge from Ms Cameron, who had represented her in the substantive hearing. I received none on behalf of the Centenary Hill Pre-School (although Mr Matters who had represented it in the proceedings informed me that he had, in fact, prepared written submissions on the costs application). 3 I listed the matter for further mention on Friday, 3 June, 2005 to clarify the position. There was no appearance by Mr Matters at that time. I spoke to his secretary on the telephone and informed her that I proposed to reserve his position and would permit him until 3.00pm to provide the written submissions he had indicated that he had prepared. He met that deadline. 4 Notwithstanding those difficulties in programming this matter, it must be accepted that, in my opinion, costs in Part 6 applications remains a somewhat limited field. Costs applications for Part 6 are restricted by S.181(2)(c), 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..." Ms Cameron has mounted her claim for costs against Mrs Jensen on the grounds of her unreasonable failure to agree to a settlement of Ms Cocksedge's Part 6 application. Mr Matters opposed the costs application. 5 For the conduct of Mrs Jensen to constitute an unreasonable failure to settle a matter, in my opinion, the bar is set fairly high. 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]: "…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 took the view that a party: "…was always entitled to press its position in arbitrated proceedings and should not be penalised for doing so…" 6 As much as it may assist in the speedy resolution of Part 6 applications that there be some offer by an employer on the table for consideration in the conciliation phase of proceedings - and it may often be a sensible course for an employer to adopt to make such an offer - I do not believe that the former employer is always obliged to make an offer in an effort merely to settle a claim made against her. She is entitled to advance arguments to hearing and have the dispute with her former employee resolved by arbitration: that is the right of any litigant. Nor is a dismissed employee obliged to accept any offer made by her former employer in the conciliation phase of her Part 6 application without having a costs application held over her head as, in a sense, blackmail. A dismissed employee also clearly has the right to have her claim arbitrated, albeit that ultimately her claim is determined as having no merit. 7 What then would give rise to a claim for costs under S.181(2)(c) on the basis of an "unreasonable" failure to settle a Part 6 claim? It is not reasonable to expect any court or tribunal to lay down an exact definition of the word "reasonable" because reason varies in accordance with to the idiosyncrasy of the individual and the times and circumstances in which she thinks. Any application for costs in Part 6 proceedings must be considered in that light. 8 I do not believe that a case has been made out for costs in this hearing and I dismiss Ms Cameron's application. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.