Industrial Relations Commission of New South Wales CITATION: Mayo v W & K Holdings (NSW) Pty Limited [2009] NSWIRComm 130 Laureen Margaret Mayo (Applicant) PARTIES: W & K Holdings (NSW) Pty Limited (Respondent) FILE NUMBER(S): IRC 1877 of 2008 CORAM: Boland J President; Harrison DP; Stanton C COSTS – Unfair dismissal – Whether frivolous or vexatious claim – Whether claim was without reasonable cause – Whether unreasonable refusal to settle – Applicant had genuine claim for unfair dismissal – Applicant's claim for damages dismissed – Respondent's claim for costs dismissed. CATCHWORDS: UNFAIR DISMISSAL – Costs – Whether frivolous or vexatious claim – Whether claim was without reasonable cause – Whether unreasonable refusal to settle – Applicant had genuine claim for unfair dismissal – Applicant's claim for damages dismissed – Respondent's claim for costs dismissed. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Mayo v W & K Holdings (NSW) Pty Ltd as Trustee for W & K Family Trust trading as W & K Constructions [2009] NSWIRComm 67 HEARING DATES: Written submissions filed by parties DATE OF JUDGMENT: 11 August 2009 Ms L M Mayo (Applicant) LEGAL REPRESENTATIVES: Catalyst Legal (Respondent) JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President HARRISON DP STANTON C Tuesday 11 August 2009 Matter No IRC 1877 of 2008 MAYO v W & K HOLDINGS (NSW) PTY LTD AS TRUSTEE FOR W & K FAMILY TRUST TRADING AS W & K CONSTRUCTIONS (NO 2) Application by Laureen Margaret Mayo re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION OF THE COMMISSION [2009] NSWIRComm 130 1 In Mayo v W & K Holdings (NSW) Pty Ltd as Trustee for W & K Family Trust trading as W & K Constructions [2009] NSWIRComm 67, a decision given on 15 May 2009, the Full Bench dismissed an application by Laureen Margaret Mayo for relief in relation to unfair dismissal. Subsequently, the respondent, W & K Holdings (NSW) Pty Ltd as Trustee for W & K Family Trust trading as W & K Constructions, made application for costs. This decision deals with the question of costs. 2 Before dealing directly with costs we should note, by way of background, what was said by the Full Bench in its May 2009 decision at [2]-[3]: [2] A disagreement arose between the parties as to which entity was, in fact, the employer of Ms Mayo. In proceedings before Commissioner J Murphy on 9 October 2008 the respondent contended that the employer of Ms Mayo was "W & K Holdings (New South Wales) Pty Ltd as Trustee for the W & K Family Trust trading as W & K Constructions". In those circumstances, it was submitted, the employer was a constitutional corporation and that by virtue of the relevant provisions of the Workplace Relations Act 1996 (Cth), the Industrial Relations Commission of New South Wales had no jurisdiction to hear and determine Ms Mayo's unfair dismissal claim. The applicant by this time had changed her position in relation to the identity of the employer and contended that it was not W & K Constructions but rather the owner of that trading name, that being "W & K Family Trust" and, as that was an unincorporated entity, the New South Wales Commission did possess the necessary jurisdiction. [3] The matter was subsequently referred to the President of the Commission pursuant to s 193 of the Industrial Relations Act 1996 who determined that a Full Bench should deal with the question of whether the application by Ms Mayo in relation to unfair dismissal was within the Commission's jurisdiction. This decision deals with the jurisdictional issue. 3 At [20] the Full Bench concluded: [20] The weight of the evidence is that Ms Mayo was employed by W & K Holdings (New South Wales) Pty Ltd as Trustee for the W & K Family Trust trading as W & K Constructions. We are also of the opinion that W & K Holdings (New South Wales) Pty Ltd is a trading corporation and, therefore, a constitutional corporation for the purposes of s 51(xx) of the Commonwealth Constitution and s 4 of the Workplace Relations Act (see the discussion of trading corporation in Garvey v Institute of General Practice Education Incorporated [2007] NSWIRComm 159; (2007) 165 IR 62 and the authorities referred to therein). Accordingly, the Commission does not have power to hear the applicant's application by operation of s 16(1) of the Workplace Relations Act . 4 On the issue of costs, the respondent relied on s 181(2)(b) and (c) of the Industrial Relations Act 1996, which are in the following terms: 2) However, the Commission when it is not in Court Session may award costs only in the following cases: … (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, or … 5 It was submitted by the respondent that the applicant's application was frivolous or vexatious for a range of reasons which appeared to include: the institution of multiple proceedings in the Local Court and Supreme Court; 'inflammatory and self serving correspondence' that was 'frivolous or vexatious'; ignoring clear authorities that were contrary to the applicant's position; and harassing and annoying the respondent and its legal representatives. 6 In relation to the respondent's claim that the proceedings were instituted without reasonable cause, the respondent submitted the applicant failed to understand basic business structures; put forward arguments that were bizarre or ill-informed; and showed scant respect for precedent. 7 It was further submitted the applicant unreasonably failed to agree to a settlement of her claim in that her agent, Mr Edwards, was 'provided with copies of precedent in this matter, and chose to continue on' and that the applicant's intention was to pursue the respondent 'at any cost' and in so doing attempted to ensure the respondent 'incurred substantial legal bills in defending'. 8 As to whether the application was frivolous or vexatious, it was not. The applicant, in our opinion, believed she had a genuine claim of unfair dismissal. Having been met with a motion by the respondent contending the Commission was without jurisdiction, the applicant sought to meet the argument put by the respondent. That the applicant failed to convince the Full Bench of the merit of her position regarding jurisdiction, is not a basis to regard the claim as frivolous or vexatious notwithstanding that the reliance by the applicant, or her agent, on some aspects of the law was misplaced or misconceived. 9 We acknowledge that some of the correspondence between the parties and parts of the applicant's written submissions and general approach to the matters in contest was somewhat peculiar but it did not amount to frivolous or vexatious. 10 We have also concluded that the respondent's contention that the claim was instituted without reasonable cause cannot be sustained. On the face of it Ms Mayo had been dismissed by the respondent and she was entitled to have her claim regarding unfair dismissal heard. The difficulty was that she made her claim in the wrong forum. Having done so, Ms Mayo sought to show that her employer was not a constitutional corporation but was not successful in that regard. There is no basis to find the claim regarding unfair dismissal was without reasonable cause or that her contention regarding the identity of the employer was completely groundless. 11 The respondent's third contention was that the applicant unreasonably failed to agree to a settlement of the claim. In that regard, we note that there was no settlement proposal put by the respondent. It could hardly expect the applicant to make the claim then immediately compromise it by proposing a settlement. There is no substance in this contention. 12 The applicant, in replying to the respondent made a number of what she described as 'cross claims', including a claim for reimbursement of losses and compensation for damages, a claim that the respondent's claim for costs was 'oppressive', a claim that the respondent 'engaged in unreasonable adversarial conduct', 'oppressive conduct', 'improper and unsatisfactory conduct' all of which, according to the applicant, should attract damages. 13 No foundation was identified in the statute for the claims to be dealt with by the Commission, perhaps because none exists. It was unwise of the applicant to raise these matters through her agent and they only served to have the Full Bench review its conclusions about whether or not there may have been some merit in the respondent's contentions regarding costs. But no such merit exists and we have decided to dismiss the costs application. 14 We should add that a 'Further Reply' was filed by the applicant on 6 August 2009. The Further Reply sought to deal with various submissions made by the respondent regarding its application for costs. The Reply also submitted that the respondent's conduct was 'so disgraceful that a significant penalty should be applied against the [respondent]… to assist in the recompense of the considerable losses suffered by the [applicant]…' 15 The Further Reply adds nothing to our consideration of the merit of the respondent's claim for costs and we have made it clear that there is no jurisdiction in the Commission to award to the applicant what may be regarded as damages. Order 16 The Full Bench orders that the respondent's claim for costs is refused. _______________________________________ 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.