Industrial Relations Commission of New South Wales CITATION: Mark Alexandre Joulian and Robert Edwards [2005] NSWIRComm 1061 APPLICANT Mark Alexandre Joulian PARTIES: RESPONDENT Robert Edwards FILE NUMBER(S): 5426 of 2004 CORAM: Murphy C Unfair dismissal of chef - jurisdictional issue of whether partnership formed at time of termination - costs claim by applicant - exparte hearing caused by disappearance of respondent after conciliation. CATCHWORDS: Applicant found to be still employee - partnership not yet formed - applicant's evidence accepted of unfair dismissal because of minor lateness caused by problems with infant son - no procedual fairness accorded applicant who attempted explanation and respondent relied upon eroneous advice from other employee as to expected arrival time advised by phone. Costs also awarded due to respondent's ignoring of hearing directions and exparte hearing being necessary. LEGISLATION CITED: Industrial Relations Act 1996 IGA Distribution Vs Moses (No. 3-2003) IRC 6002 of 2001 Four Sons Vs Sakohai CASES CITED: Lunnsirpothong (No.2) IRC 6337 of 1999 100 IR 400 Bankstown City Council Vs Paris 93 IR 209 HEARING DATES: 02/24/2005 EXTEMPORE JUDGMENT DATE : 02/24/2005 APPLICANT Mr J Sewell, Solicitor of Stone and Partners LEGAL REPRESENTATIVES: RESPONDENT No appearance - exparte hearing DECISION: 18 - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 22 April, 2005. Matter No IRC 5426 of 2004 MARK ALEXANDRE JOULIAN AND ROBERT EDWARDS Application by Mark Alexandre Joulian re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 EX TEMPORE DECISION [2005] NSWIRComm 1061 1 This is a decision given by me today upon hearing of evidence in respect of matter 04/5426 which is an application by Mark Alexandre Joulian re his unfair dismissal from Robert Edwards. 2 The applicant was represented by Mr Sewell, Solicitor. I might indicate that the hearing of this matter has had to proceed ex parte when, for reasons indicated earlier on transcript, the Commission has found it necessary to proceed without the respondent for the purpose of hearing. 3 At the commencement of today's proceedings I went on record to specifically indicate that there was a last attempt by my assistant, under my instruction to contact the respondent through his solicitor, the solicitor advising that he is filing a notification of ceasing to act, but had effectively ceased to act for the respondent when not being able to contact him now for some months. 4 I caused the respondent and his solicitor both to be separately written to earlier this month to alert them to the fact that this matter would have to proceed ex parte if there was no appearance here today. There was no response to that letter to the respondent sent to his last known address and the solicitor for the respondent did of course separately inform that he was not going to appear here today, which is understandable in the circumstances. 5 The applicant, Mark Joulian was employed with the respondent from late March or early April, 2004 as a chef and his termination from that position occurred on 17 August, 2004. The operation of the business was known as Impi's Restaurant at the Imperial Hotel located on the main street of Murwillumbah. 6 The Commission was provided with details of the applicant's hiring showing a substantial amount of hours each week although varying from time to time with the exigencies of the business. 7 The applicant was made a permanent employee some two weeks prior to what he alleged was his dismissal on 17 August as an employee. 8 One of the issues raised in conciliation by the respondent and by the respondent's solicitor in the second conference of this matter concerned the status of the applicant. The first conciliation conference was a comprehensive attempt at conciliation on 15 September where the respondent represented himself, but where all issues were raised, we could safely say and I believe at that point the respondent did indicate his contention that the applicant was a partner and not an employee. Certainly after the further conference in this matter - by teleconference on 25 October, where the respondent was represented by his solicitor, although by the notes of the conference it seemed to indicate that he may have also been on the telephone. But at that time the solicitor for the respondent did argue that the applicant was not an employee by virtue of becoming a partner in the business prior to termination. Again the details of the applicant's termination were raised at that conference to no avail. It became clear then that I should list this matter for hearing, which I did, on 15 February, extending that date slightly to allow contact with the respondent himself, because his solicitor advised the Commission along the way that he had lost contact with him. That new date 24 February was advised to both the respondent and his solicitor by the letter of 9 February, already mentioned. 9 The evidence in this matter therefore had to be restricted to the witness statements provided by the applicant and his wife, Linda Joulian. Exhibit 1 was the applicant's statement. Exhibit 2 was evidence of some thirteen weeks' earnings of the applicant during his period of casual employment prior to becoming permanent on 9 August, prior to his dismissal. 10 The Commission received specific evidence in relation to the applicant's earnings during the whole of his employment and also the issues going to mitigation under s 89 subsection 6 as to the applicant's efforts to procure other employment and his earnings in that other employment. 11 My consideration of the evidence here this morning revolved around several very important issues - firstly, that whilst the Commission was made aware of the jurisdictional argument raised by the respondent and his solicitor from the earlier conciliation process, the matter was not the subject of evidence from the respondent. By the same token I believe the applicant dealt with that issue honestly and the applicant's solicitor endeavoured to properly inform the Commission as to that aspect - absent the respondent. The important question for me then was, whether the evidence provided to me by the applicant to be believed. 12 I have no hesitation in saying the evidence of Mr Joulian and Mrs Joulian were both to be accepted by the Commission. 13 I might turn to that evidence, going to the key factors to be taken into account by the Commission and I will do my best to summarise it quickly. 14 The applicant dealt with the period of his employment as a casual, then becoming permanent as I have already indicated. 15 In the initial discussions with the respondent as to the forming of a partnership, which included some discussions in July 2004 between the respondent, Mr Joulian and his wife, Mrs Joulian, the applicant indicated that any increase in working time for him would be conditional upon him becoming a permanent employee at that stage on 2nd August, 2004, receiving relevant entitlements. Those entitlements are annual leave, sick leave and proper superannuation, to which the respondent agreed. 16 A tentative decision was made by the applicant to form the partnership with the respondent. One issue that concerned Mr and Mrs Joulian at the time of those discussions was that the lease of the premises, which was then in the sole control of the respondent and the Imperial Hotel, (which did not expire until mid September) should then be executed in both names of the applicant and the respondent. He believed and gave evidence that it was not possible to execute the new lease until that lease expired. Some preparation was made in discussion with the Imperial Hotel as to the drawing up of that lease. 17 Upon becoming a permanent employee the applicant's salary was $800 before tax. Tax was deducted by the respondent during that period, as it was in the earlier casual employment. 18 In August 2004, possibly beginning of August the applicant paid the respondent an amount of $2,665 which was designated as the half share of the existing stock in the restaurant, at the same time there was an agreement that the applicant would pay to the respondent a further $5,000, representing the cost of the partnership being formed. Payment was to be made in instalments, however, the applicant at no stage commenced those instalment payments with the respondent. This issue of course was important as to whether or not a partnership had been formed at that stage. Some discussion ensued about the accruing debts at that time, which were to be met by the respondent, the applicant was particularly concerned that all employee superannuation, taxes had been paid, as he was concerned not to become a partner and inherit such liabilities. 19 On 16 August the applicant was driving to work and hit a cow with his motor car, the vehicle had to be towed away, he was later advised that the car was a write off and attached and marked A to the applicant's statement is the towing authority. He rang the police and also his workplace to advise them what had occurred and that he would not be able to attend that day. He had no transport available to attend his workplace at the Imperial Hotel, Murwillumbah. 20 On the following day the termination of the applicant's services took place in circumstances, according to the applicant, due firstly to the car crash, which had resulted in him not having his own transport, but where he made arrangements for his wife to drop him into work on her way to her workplace. This was usually not a problem because his wife took responsibility for dropping the eight month old son, Ryan, off to the day care centre on her way to work and then generally heading through Murwillumbah at around the time that the applicant was to start work. Unfortunately on that particular day the applicant gave evidence that the baby Ryan refused to take the bottle due to teething problems and consequently the feeding took longer. The departure from home was approximately 7.50 or 7.55am. 21 At that stage the applicant rang work and spoke to a person by the name of Klarinda, who was an employee of the respondent, and explained the circumstances of the baby's problem in feeding and advised Klarinda that he would be ready to set food at 8.30. At that point his wife had called out to say they were ready to leave. The applicant left Murwillumbah shortly afterwards and arrived at work at approximately 8.15am. His wife continued on to drop the baby to day care, the drive from the restaurant to the Tweed Shire Family Day Care takes 20 to 25 minutes, and related to that was attachment B to the applicant's statement showing that young Ryan, the baby, attended the day care at 8.40am. The applicant's arrival at work was some 20 minutes earlier than the 8.40, so that would have made it about 8.15, as he originally claimed. 22 At approximately 8.45 the respondent arrived and immediately began to abuse the applicant and told the applicant he was fired. The applicant attempted to reason with Mr Edwards, who explained to him that he had received a telephone call from Klarinda indicating that the applicant would not be at work until nine or 9.30am. The applicant explained to Mr Edwards that this is not what he advised Klarinda and asked him to listen to him, which was refused by Mr Edwards. "I also tried to point out", he says," that I was there well before 9.30 and I had already begun cooking". The respondent in reply said, "any chef that I hire I expect to be here cooking at 7.30am". That statement of Mr Edwards' was relied upon by Mr Sewell, the applicant's solicitor, who appeared for the applicant here in this proceedings today, as an indication that the respondent had in mind that the applicant was an employee and not yet a partner. Mr Edwards repeatedly told the applicant he was unreliable, that he was unwanted and that he was fired and should leave immediately, repeating that "any chef I hire I expect to be here cooking at 7.30". 23 The applicant left the premises of the restaurant, rang his wife who suggested to him he goes back to speak to the respondent, which is important in respect of Section 88 Subsections (a) and (b) of the legislation, which governs the Commission's Handling of unfair dismissal cases (applicant's where is possible do try to ameliorate their situation by re-approaching the employer). I must say it does not often happen, but in this case it did. The respondent refused to listen to him. 24 Shortly after Mrs Joulian rang the respondent and also asked him to reconsider his decision explaining the circumstances of the baby's teething problems, as the reason for the lateness, and also mentioning the car accident the day before. In that conversation the respondent had acknowledged to Mrs Joulian that her husband had been the best chef that he had had and that he had been looking forward to forming a partnership but that this was now not going to happen. 25 It was also reported to the applicant, and I appreciate that some of this has an hearsay element to it, but nonetheless the Commission is entitled to take into account the fact that this was actually at least said to the applicant by his wife, again in Mrs Joulian's evidence, she was told that the respondent informed her that he had been told that the applicant would not arrive until nine or 9.30 by the aforementioned Klarinda. During a second phone call to Mr Edwards, Mrs Joulian made arrangements for picking up the last payment to the applicant and a refund of the monies paid for stock was also received. 26 The applicant goes on to say that the proposed partnership was never finalised and that no monies of the $5,000 purchase price of the partnership were paid to the respondent in consideration of the good will built up in the business. The precise terms of the partnership had not been formed, a date for the formation of the partnership had not been set, the lease of the premises never signed, the applicant received no accounting of profits, or assets at the time that he was fired, all of which pointed to him still being classified as an employee. 27 Further to that, after the applicant was made permanent on 2 August, and I must correct the earlier reference to 9 August, the respondent made payment of $641 nett and the system of PAYE tax was continued at that point. 28 Applicant finally says in his application that he was fired when he was a permanent full-time employee of the respondent, and at that stage, the respondent would pay him a wage, from which the respondent had extracted appropriate taxation, being PAYE taxation. 29 In the evidence of Mrs Joulian several issues raised by the applicant were confirmed. She likewise had been involved in discussions as to the proposed partnership, dealt with that in her evidence, insisting that nothing had been finalised. Also saying that the applicant had indicated that he would accept the increase of hours if he would become a permanent employee receiving all entitlements at that point from 2 August, which happened prior to the formation of the intended partnership. 30 Again she corroborates the applicant's evidence that the partnership was not to be formed until and unless the lease of the restaurant was in both the applicant's name and that of the respondent's. Again this is fairly crucial evidence. 31 As to the $5,000 proposed payment of which no instalments were made, Mrs Joulian gave evidence that she had commented to Mr Edwards that she regarded this as double dipping because the business had been built up due to the expertise of her husband as chef. The respondent, she says, acknowledged this at the time. 32 She made some inquiries about the likely profits, received some information about that and claimed that a tentative decision was made for Mark Joulian to enter the partnership with the respondent, Mr Edwards in the near future. 33 She corroborated her husband's evidence that every effort was made by Mr Joulian to ensure that all employees' superannuation, and tax were paid, before the partnership could be formed so there were no outstanding debts. No superannuation forms were filled in at that point. 34 She confirms that the applicant became permanent on 2 August and around that time the applicant paid to the respondent the amount of $2,665 as a half share of existing stock, which was to be paid in addition to the $5,000. She confirms that no extra payments were made in respect to the $5,000, consideration for goodwill of the business. 35 On 16 August the evidence of Ms Joulian confirms the car crash in which the car was written off, and that one car was left for the next day's journeys to work between her husband and herself and taking the young baby son, Ryan, to day care. 36 She confirms the difficulties of feeding the baby on that morning, and that her husband rang around 7.50 or 7.55am and explained he would be arriving a little late for work due to problems with their son. 37 Mrs Joulian dropped her husband at work, matching the same time as Mr Joulian, at 8.15; confirming also the time then travelled to the day care, which was significant in respect to the attachment to the applicant's application, which shows her arrival at the day care 8.40, some 20 minute journey from the Imperial Hotel where she had dropped her husband. 38 She gave evidence of a conversation she had with Mr Edwards, after learning from her husband that he had been dismissed, asking to reconsider, talking about the problems of the baby, mentioning the car crash the day before, and also telling Mr Edwards how unreasonable his decision was and the financial trouble that it would visit upon the family given the new baby and the fact that the couple had bought a new house in recent times. 39 She received a response from Mr Edwards that he was sorry but he was angry and would not change his mind. He also said that the proposed partnership would not be going ahead. 40 Despite the pleadings of Mrs Joulian refuting the advice given to Mr Edwards by the employee Klarinda, who incorrectly reported that Mr Joulian would not be there until 9 or 9.30. The response from Mr Edwards to Mrs Joulian was, "This is not what I was told". I should clarify that, he denied that he had heard anything other than the fact that the applicant was likely to arrive at nine or 9.30. 41 That is the main evidence, apart from the evidence in exhibit 2 of the thirteen weeks of the casual employment of the applicant, which the Commission was provided with during the evidence of Mr Joulian. CONSIDERATION: 42 In my consideration of this matter I have had to deal with the evidence of the applicant, that he was dismissed following an unlucky event for which he was blameless the day before, where his car was a write off, hitting a cow. If that was not unfortunate enough, the next morning his baby son was having teething problems - causing a late arrival at work. I have no reason not to accept his evidence that he has actually arrived at 8.15 and not the between 9 or 9.30 as incorrectly reported by Klarinda. 43 It is amazing to me that Mr Edwards would not have checked or would not have at least dealt with the issue that the applicant was actually at work at 8.15 and not to have relied upon the incorrect advice of nine or 9.30. There was a total lack of procedural fairness in that situation, where he had clearly made up his mind to dismiss and refused to resile. 44 For the reasons earlier mentioned, no evidence was given in that regard from the respondent and I take it then that the respondent made his decision on incorrect information, quite apart from the reasons for his decision the applicant was instantly dismissed, or in effect summarily dismissed, there was a further refusal to reason over the issues despite the pleadings of Mrs Joulian who, like her husband, attempted to put across the true situation, and outlined to the respondent the extenuating circumstances of the lateness. 45 The applicant had some 17 years experience as a chef. 46 I have taken aboard the evidence of Mrs Joulian, which indicates that the respondent acknowledged the value to the business of the applicant, I accept the applicant's evidence that he was never late, and was in fact early, and that he was certainly not warned about any latenesses previously. So to justify dismissal "for cause" as it is termed or the summary dismissal in this case there was an extra onus and in fact a shift of onus upon the respondent to have proved any alleged misconduct, which would have been deserving of any such dismissal. 47 In the absence of evidence from the respondent I accept the evidence of the applicant that he was dismissed in the most unreasonable of circumstances. 48 I turn now to the issue of jurisdiction going to the partnership, and I have the benefit of the submissions of Mr Sewell in this regard, which I find helpful. The submissions of Mr Sewell I have taken aboard, which indicate correctly that matter is addressed in the Act itself in Section 5 - and I must add to that - my knowledge of the deeming provisions in subsection 3 are of no assistance to the Commission and neither is schedule 1, referred to therein. 49 It alludes to the issue of control when it comes to working out whether someone is an independent contractor, although in this case the analogy drawn to a partnership. I had to agree with Mr Sewell's submissions that the circumstances of the applicant's dismissal would certainly indicate that Mr Edwards behaved like he was exactly an employer and not in partnership with the applicant. 50 The fact that the full amount of the half share of the stock paid was refunded without any attempt to extract the stock which might have been used in the two week period when the applicant was a permanent full-time employee indicates to me that again, this was merely an intention and a preliminary step to the formation of a partnership. Mr Sewell was correct in pointing out the relevance of the fact that PAYE taxation was extracted, and there was an agreement to pay superannuation and annual leave for those two weeks. At the time then of the applicant's dismissal the applicant was truly an employee. 51 Neither was there any attempt to draw down for wages upon the business as is usually an indicator of a partnership. 52 The fact that the alleged partnership was not properly dissolved as one would expect was also relevant, which is also related to the issue of the circumstances of his dismissal, being treated exactly like an employee, although I should hasten to add, not the way any employee should be dismissed in these circumstances. 53 Mr Sewell drew my attention to the evidence that the applicant hd said, "any chef that I hire, should be here at 7.30", which is included in the applicant's evidence at par 18 of exhibit 1, and which was indicative that the respondent regarded him as an employee at that time. 54 It is my conclusion in respect to the jurisdictional issue therefore that the payment of the monies for half the stock was merely an act of good faith, showing an intention to form a partnership. The period of treaty, so to speak, had not been completed but more importantly there were no dates set for the formation of the actual partnership. I agree that the applicant employed for two weeks permanent full-time, employee was simply a forerunner to the formation of a partnership and of course the other indications that I rely upon are those raised by Mr Sewell, I am happy to adopt his arguments as being logical and having a basis in law. CONCLUSION 55 I have already indicated the unusually unfair circumstances where the applicant was dismissed, which were harsh, unjust and unreasonable. It seems inadequate to describe the circumstances in those terms, I do so though in compliance with the Act, but my assessment of the situation, is that this was unusually cruel and off-handed from the respondent, where there were no previous incidents, there was no justification for the summary dismissal that took place, and even if evidence had been brought by the respondent on some of these issues, there was never any indication of the respondent being able to refute the basic circumstances that the dismissal was harsh and unjust and unreasonable. However, I have to note that whilst there is no such evidence from the respondent at all, as I have already indicated, I accept the evidence fully of the applicant. 56 Accordingly in response to my findings, and in consideration of remedy, I have to take account of the efforts made by the applicant to procure other employment, I note that he was employed by the Murwillumbah Ex-Services Club for a period of four weeks, at a certain rate of pay, followed by further unemployment and when he then procured employment at Specialised Chickens in Murwillumbah where he was employed for some eight weeks, he was required to cut that short. 57 In all the applicant's earnings during his period of employment were some $10,846 as confirmed by the particular evidence given by the applicant and assisted by the material evidence of 13 payslips over the 18 weeks of his casual employment and by deducing an average earning I am satisfied that the figure is around $10,846. 58 I note then that the applicant's only reason for leaving Specialised Chickens was a result of the function performed by him there, deboning chickens on a regular basis which gave rise to an old injury, related to carpel tunnel syndrome and, although it had not caused him problems before, he was forced to give up that work. 59 The applicant tells the Commission that he is optimistic of procuring other employment but the prospects seem far from certain. I wish him well in that of course, but, I am entitled to assume I think that the applicant may well be unemployed for some time. The earnings he procured at the Murwillumbah Ex-Services Club and the Specialised Chickens established have been taken into account by me. ORDERS 60 I order the respondent to pay to the applicant a figure of $10,000 to the applicant within 21 days at the release of this decision. POSTSCRIPT TO DECISION 61 Since receiving the transcript of my decision handed down extempore and making the appropriate corrections and minor re-drafting as above and as speculated to the parties would be necessary, I am now required to deal with the claim for costs made on behalf of the applicant by Mr Sewell. 62 In his closing submissions, Mr Sewell drew attention to the behaviour of the respondent in negotiations of this matter. 63 Mr Sewell outlined the course of those negotiations, which culminated in the disappearance of Mr Edwards from the scene and resulting in the applicant being left with no other course but to go to hearing, with the necessary expense of doing so. If there was no order for costs, Mr Sewell contended, this would certainly diminish the fruits of the applicant's litigation. 64 It has been the conduct of the respondent, which has led to the applicant to seek legal advice and be legally represented - the applicant being initially unrepresented. 65 The applicant had on 11th October, 2004 made an offer of $10,000 following the involvement of Mr Sewell, who made the offer in writing, inclusive of costs incurred. This followed the first conference. 66 No efforts were made to respond to that offer. 67 The starting point for the Commission's consideration of costs claims begins at Section 181(2)(b) and (c) of the Act, which provide as follows: 181(2) (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) 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. 68 The Commission's consideration of the circumstances of each case in the context of the legislative provisions is assisted by some landmark findings and observations by the Full Bench of this Commission in some of which I now recite to support my findings in this case. 69 The situation in this case is tantamount to that dealt with in IGA Distribution Vs Mosses (No 3-2003) IRC 6002 of 2001 where the Full Bench observed that the absence of offers from the employer in that case effectively left the applicant to "bid against himself". The following extract is relevant: " Nevertheless, we are not satisfied that the position adopted by the appellant was sufficient to discharge the obligation it bore in accordance with Paris and Four Sons (No2) to properly turn his mind to settlement of the proceedings. We are not satisfied that the approach of the respondent to the proceedings made it futile for the applicant to put forward an appropriate offer of settlement." "The position adopted by the appellant essentially amounted to a demand that the respondent bargain against himself in a way which would require him to step back from his primary remedy under the Act." 70 The following observation at paragraph 11 of the decision in Four Sons Vs Sakohai Lunnsirpthong (No.2) IRC 6337 of 1999 100 IR 400 of the Full Bench is also apposite to my consideration of this case: "The obligations imposed on parties to proceedings under Section 84 of the Act, as identified by the Full Bench in Paris, requires parties to proceedings to undertake a reasonable and careful assessment of the prospects of the litigation, in the absence of which, an unsuccessful party may realistically face the prospects of a costs/order being made against it. In those circumstances it may often be appropriate for a party to consider making an offer to settle, even if t he offer could be seen, either with the benefit of hindsight or otherwise, to be rather low lever. However, the making of such an offer on the low side does not exhaust the responsibilities of a party to reasonably attempt to settle the claim." 71 The other case relevant to the consideration of these matters is the Full Bench Judgement in Bankstown City Council Vs Paris 43 IRC 209, where the Bench identified circumstances where costs should be awarded under Section 181(2), which are also apposite to the matter at hand: "Construing the relevant part of s 181(2)(c) in its overall statutory context, we conclude that the evident purpose of the provision is to encourage the settlement of proceedings to which it applies. The criterion set out in the provision is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim. We also consider that on the proper construction of the provision, an affirmative conclusion may be reached on at least two bases. First, where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party. The second situation in which the criterion could be satisfied is where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. We emphasise that, although the legislature has clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings, the legislature has also evinced a clear intention that costs orders be available in circumstances where there has been a failure on the part of a party to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. Once the statutory criterion has been met, the Commission's broad powers and discretions under Section 181(2) are available for exercise. 72 After consideration of the aforementioned cases, I believe Mr Joulian deserves to be recompensed by a respondent who made no attempt to settle, raised a jurisdictional issue rejected by the Commission and finally caused this matter to go to hearing by finally ignoring the Commission, and ensuring the applicant would accumulate those costs. Costs should be awarded for the hearing of this matter and preparation thereof. FURTHER ORDERS 73 Accordingly, costs are awarded against the respondent as agreed or as assessed. 74 Such payment is to be made within 28 days of the release of this decision, i.e. from 22 April, 2005. J P MURPHY Commissioner oOo 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.