Industrial Relations Commission of New South Wales CITATION: Barbara Scott & Greyhound & Harness Racing Regulatory Authority [2009] NSWIRComm 1010 APPLICANT Barbara Scott PARTIES: RESPONDENT Greyhound & Harness Racing Regulatory Authority FILE NUMBER(S): 820 of 2008 CORAM: Tabbaa C CATCHWORDS: Costs Unreasonably failed to agree to a settlement LEGISLATION CITED: Industrial Relations Act 1996 Van Huisstede v Commissioner of Police (No. 2) [2001] NSWIRComm 139 Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRC 131 CASES CITED: IGA Distribution P/L v Moses (No 3) [2003] NSWIRComm 230 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Bankstown City Council v Paris (1999) 93 IR 209 Carlton and United Beverages Ltd v Brunt [2007] NSWIRComm 135 HEARING DATES: 25.02.09 DATE OF JUDGMENT: 25 February 2009 APPLICANT John Murphy of Counsel Brooke Pendlebury LEGAL REPRESENTATIVES: Pendlebury Workplace Law RESPONDENT Paul Brown Baker & McKenzie, Solicitors DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: TABBAA, C. 25 February 2009 Matter No. IRC 820 of 2009 BARBARA SCOTT and GREYHOUND & HARNESS RACING REGULATORY AUTHORITY Application by B. Scott re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. ………………………………………………………………………………………… D E C I S I O N ON COSTS 1 A claim by Ms Barbara Scott for relief relating to alleged unfair dismissal by Greyhound & Harness Racing Regulatory Authority was determined on 11 February 2009 in her favour in a decision issued in [2009] NSWIRComm 1005. Following receipt of submissions from the parties on 24 February 2009 as to the appropriate remedy, a decision was issued on the same day granting the application as pressed in full [2009[ NSWIRComm 1009. 2 At the conclusion of the latter proceedings, Mr Murphy made a claim for costs on party/party basis on behalf of the Applicant and the matter was listed on 25 February 2009 for submissions and determination. 3 Mr Murphy referred to s 181 (2) (c) of the Industrial Relations Act 2006 and pointed out that the Applicant was relying on the provision that the Commission may award costs against a party....who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim. 4 The Commission's attention was drawn to the relevant comments by the Full Bench in Four Sons Pty Limited v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131: The obligations imposed on parties to proceedings under s 84 of the Act, as identified in the Full Bench judgment in Bankstown City Council v Paris require parties to such proceedings to undertake a responsible 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. 5 Mr Murphy pointed out that the Respondent in the current proceedings had failed to do that. 6 Correspondence dated 6 June 2008 was tendered in the proceedings which confirmed what the Applicant had stated on her s. 84 claim - that she was seeking reinstatement or re-employment to an equal or higher position and payment for back pay for the period between the date of termination and the date of re-employment. The correspondence was addressed to Mr Coughlan, the Chief Executive Officer of the Respondent by the Applicant's previous Solicitors. The Applicant has not resiled from that position since then. 7 Mr Murphy cited the situation in IGA Distribution Pty Ltd v Moses (No 3) [2003] NSWIRComm 230 as being analogous with the current situation. In those proceedings, as the respondent (being the dismissed employee) had expressed on numerous occasions that he was desirous of a remedy involving an assurance of employment, the appellant employer decided that it was futile to put forward an appropriate offer of settlement. Mr Murphy conceded that the reluctance of the Respondent in these proceedings to make an offer of settlement may have been based on the same premise. Nevertheless, in IGA, a Full Bench of the Commission held that the attitude adopted by the employer amounted to a demand that the employee bargain against himself in a way which would require him to step back from his primary remedy under the Act. It was held that, in the absence of any offer from the employer, it was inappropriate to conclude that employee's stance was unreasonable. The Bench cited with approval the decision in Little v Commissioner of Police (no 2) (2002) 112 IR 212 at 243 wherein the Commission was critical of the fact that the employer had given little or no weight to the fact that reinstatement is the primary remedy under the statute. The Full Bench also pointed out that the employer had not taken the necessary steps to deal with its situation in the litigation as discussed in Bankstown City Council v Paris (1999) 93 IR 209. 8 Mr Brown cited Carlton and United Beverages Ltd v. Brunt [2007] NSWIRComm 135 in which a Full Bench of the Commission recognised that while an employee is perfectly entitled to maintain a steadfast desire for reinstatement, similarly, an employer may be entitled in appropriate circumstances to maintain a firm position of refusing to make any offers of settlement. The Full Bench recognised that in both those circumstances, there is an element of risk associated with taking such a stand. 9 The principles applying to a consideration of s 181 (2)(c) of the Act have been authoritatively stated in Paris and are briefly summarised as follows: 1. The evident purpose of the provision is to encourage the settlement of proceedings; 2. The provision is to be applied objectively; 3. It requires consideration of the whole, or a discrete part of, the conduct of the party against whom the claim is made, to ascertain whether that party unreasonably failed to agree to a settlement of the claim. 4. The provision may be satisfied on at least two bases: (a) Where, what can be described as a reasonable settlement of the claim was put by a party and not agreed to by the other; (b) Where the course of conduct of a party, over the relevant period, can be considered to amount to conduct inconsistent with an intention to settle the matter on any reasonable basis; 5. The legislature clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings. Nevertheless, it has evinced a clear intention that costs orders would be available where a party has failed to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them; and 6. The Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. 10 Mr Murphy pointed out that the Applicant's contention fell within the second limb of 4 (b) in that the Respondent's "obstinate" refusal to take her back as full-time employee amounted to conduct inconsistent with an intention to settle the matter on any reasonable basis. It was conceded, however, that the Respondent may well take the view that the Applicant herself was totally obstinate in her dogged intention to seek re-instatement. Nevertheless, it was argued, there is a crucial difference in that the Applicant was entitled to seek the primary remedy and the Respondent was wrong. Mr Brown argued that the requirements of that provision have not been met by the Applicant and her claim should be rejected and provided reasons for his submission. 11 Mr Murphy also contended that the Respondent had failed to critically examine the position of Ms Scott and her entitlement to remain in full-time employment, and had used a number of devices to remove her from such employment. For example, the Respondent had failed to provide her with the election to convert her employment to full-time as per the Award once she had completed six months employment in the position; it had failed to confirm her in the position of full-time harness racing steward once the resignation was received from the holder of that position; and it had failed to appoint her in the position favouring, instead, someone with less experience that the Applicant. It was submitted that the circumstances in this matter are analogous to the circumstances pertaining in Van Huisstede v Commissioner of Police (No 2) [2001] NSWIRComm 139 in which his honour, Walton J, held that both those aspects warrant an affirmative conclusion as to the jurisdiction to determine the application for costs pursuant to s 181 (2)(c) of the Act. 12 The Applicant was associated with the harness racing industry for many years prior to obtaining employment with the Respondent. She wishes to pursue her career in that industry and the Respondent is the only employer in that industry. She is perfectly entitled to maintain a steadfast desire for reinstatement. A Respondent, as stated in Carlton, may be entitled in appropriate circumstances to maintain a firm position of refusing to make any offers of settlement. 13 However, a number of matters were clearly evident at the commencement of the proceedings before me. The parties had exchanged witness statements which alluded quite clearly to those matters. For example, there was a letter of appointment provided to the Applicant which stated that she would remain in the full-time position which would only cease if the steward on leave returned to the job. In addition, there was the award provision in relation to casual conversion which had not been complied with. Both those issues, if complied with, would have resulted in the Applicant obtaining and remaining in full-time employment. In my view, the Respondent ought to have taken a more conciliatory attitude towards settlement of this claim. This became particularly evident during the cross-examination of Ms Johnson and Mr Coughlan. 14 I consider that the circumstances of this matter should result in costs being awarded. The Commission accordingly orders that the Respondent is to pay the Applicant's costs of, and incidental to, the proceedings before the Commission as currently constituted in an amount as agreed, or failing agreement, as assessed. I. Tabbaa 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.