Industrial Relations Commission New South Wales Medium Neutral Citation: Kent v Secretary, Department of Education (No. 2) [2020] NSWIRComm 1025 Hearing dates: Application determined on the papers Date of orders: 15 April 2020 Decision date: 15 April 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Respondent's application for a costs order is refused Catchwords: UNFAIR DISMISSAL – application by respondent for a costs order – vexatious – unreasonably failed to agree to a settlement of the claim – costs order refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 Bankstown City Council v Paris (1999) 93 IR 209 Bragg v NSW Department of Community Services [1999] NSWIRComm 55 Kent v Secretary, Department of Education [2019] NSWIRComm 1001 Phillips v Industrial Relations Commission of New South Wales & another (2006) 154 IR 96 Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 Peden v Lake Macquarie Pty Ltd [2004] NSWIRComm 66 Category: Costs Parties: Bradley Kent (Applicant) Secretary, Department of Education (Respondent) Representation: The Applicant represented himself Counsel: Mr A Britt (Respondent) Solicitor: Ms C Schipp (Respondent File Number(s): 2017/00304518 DECISION 1. On 17 January 2019 I handed down my decision in the matter of Kent v Secretary, Department of Education [2019] NSWIRComm 1001 ("the Decision"). In the Decision, I dismissed the applicant's unfair dismissal application on the grounds that the decision by the respondent to terminate the applicant's employment by way of a direction that he resign from the Teaching Service was neither harsh nor unreasonable nor unjust. The respondent now seeks an order for costs. The legislative scheme 1. Section 181 of the Industrial Relations Act 1996 ("the Act") relevantly provides as follows: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (2) However, the Commission may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (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 ……………………………….. 1. The respondent's application is supported by an affidavit affirmed by Claire Schipp, Relieving Principal Legal Officer, Legal Services Directorate, NSW Department of Education. In that affidavit, Ms Schipp referred to various offers which had been made by the respondent to settle the applicant's unfair dismissal application which was filed on 5 October 2017. 2. On 30 October 2017, during a conciliation conference before Commissioner Newall, the respondent offered to pay the applicant eight weeks pay to settle the matter. This offer was rejected by the applicant. 3. By letter dated 15 November 2017, the respondent increased its settlement offer to ten weeks pay. On 19 November 2017 the applicant responded stating that he would consider the offer "if the Department will give me my accreditation in Agriculture…". On 28 November 2017, Ms Schipp wrote to the applicant and advised him that "the department cannot 'accredit' you in agriculture. I believe what you are actually seeking is an 'approval to teacher' agriculture in NSW Government Schools." Ms Schipp then advised the applicant that "the department is not willing to grant you approval to teach agriculture because it is not satisfied that you have sufficient experience and skills to teach agriculture." 4. There was further correspondence between the parties concerning the applicant's request to be granted approval to teach agriculture which was again rejected by the respondent. On 16 January 2018, the applicant notified Ms Schipp of his rejection of the respondent's second settlement offer. 5. By correspondence dated 24 January 2018, the respondent again offered to pay the applicant ten weeks pay to settle the matter. The applicant again rejected this offer and made no counter offer. 6. The hearing of the applicant's unfair dismissal application commenced before me on 20 March 2018. The applicant represented himself. On the second day of the hearing, 21 March 2018, with the parties' consent, I adjourned the proceedings so that the parties could engage in further conciliation before Commissioner Newall. During that conciliation conference, the respondent reiterated its offer of 24 January 2018. The applicant again rejected the offer and made no counter offer to settle the proceedings. 7. The hearing of the applicant's application resumed before me that afternoon and proceeded on a further four hearing days throughout 2018, eventually concluding on 19 October 2018. Submissions of the respondent 1. In written submissions filed on behalf of the respondent, Mr Britt, counsel for the respondent, discussed the legal principles governing the awarding of costs in this jurisdiction. 2. It was submitted that the applicant's unfair dismissal application was vexatious in the sense discussed as in Peden v Lake Macquarie Pty Ltd [2004] NSWIRComm 66 and Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85. Both of those decisions cited with approval the following passage from the judgement of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 (at 487): I. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues for which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of a motive of a litigant they are so obviously untenable or manifestly groundless as to be utterly hopeless. 1. The respondent's written submissions then continued as follows (footnotes omitted): 16. The Respondent submits that the Applicant's claim was vexatious given they were: (a) instituted with the intention of annoying or embarrassing the person against whom they are brought; (b) brought for collateral purposes, and not for the purpose of having the commission adjudicate on the issues for which they give rise; (c) conducted with a disregard of the Commission's practices, procedures and rulings; (d) demonstrated persistent attempts to use the Commission's processes to circumvent the Commission's rulings; (e) wastage of public resources and funds; and (f) the harassment of those who are subject of the litigation which lacks reasonable basis. 17. These matters relied on above are illustrated by the following findings of the Commission in the substantive proceedings: (a) The Applicant tendered into evidence three "statements" which had been prepared by him and these documents were a mixture of evidence and submissions which canvassed a range of issues which the Applicant believed were relevant to his unfair dismissal application; Decision at [48] (b) The concentration on the birthing of lambs incident; Decision at [49] and [98] (c) His concern about the failure to notify him of the appointment of another teacher; Decision [54] (d) Making unfounded allegations about other teachers; Decision at [55] (e) The lengthy cross examination of Mr Ward which was often irrelevant and repetitive; Decision at [66] and [97] (f) The Applicant's evidence, submissions and responses under cross-examination were often discursive, sometimes rambling and failed to come to grips with the essential element of this case; Decision at [98] (g) The Applicant in the present matter did not believe that his teaching performance was deficient, in circumstances where the overwhelming weight of evidence before the Commission clearly establishes that it was; Decision at [103] (h) The Applicant did not positively engage m the Teacher Improvement Process. Decision at [103] 1. The respondent's submissions were then critical of a range of matters which, for the most part, related to the manner in which the applicant conducted the proceedings before me at first instance. I fail to see how such matters could render the application made by the applicant to the Commission vexatious. 2. In support of its submission that the applicant had unreasonably failed to agree to a settlement of his application, the respondent cited the decision of the Full Bench of the Commission in Bankstown City Council v Paris (1988) 93 IR 209. In that case, the Full Bench identified two bases upon which a conclusion might be reached by the Commission that a party had unreasonably failed to agree to a settlement of the claim. The Full Bench stated: 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. 1. The respondent also relied upon the following passage from the Court of Appeal judgement in Phillips v Industrial Relations Commission of New South Wales & another (2006) 154 IR 96: 19 When the Full Bench in Paris spoke of applying the statutory criterion "objectively" it was correctly discerning that the standard of unreasonable failure was to be applied by reference to the hypothetical yardstick of the fictional "man on the Clapham omnibus" or his Australian, gender-neutral counterpart. This does not mean that this hypothetical personage is placed anywhere other than in the context of the party in question (here the party against whom costs are sought). Nor does it mean the reasonableness assessment may commit hindsight error. But it does mean that the standards of the actor in question are not determinative. Thus, in the realm of negligence law, a person's conduct may be held unreasonable even though he or she was ignorant of the circumstances calling for a particular response or even if he or she lacked the capacity to discern or provide a correct response in the circumstances. 20 Under s 181(2)(c) costs may be awarded against the employer or the employee, depending on who has failed to agree to a settlement and done so unreasonably. The reference to the opinion of the Commission emphasises, if emphasis were required, that the criterion is to be decided by the Commission applying its own perception of what was unreasonable, as distinct from the perception (if any) of the party. This does not permit the Commission to ignore the standpoint or standards of the party concerned, but the Commission must not be captive to those matters. Were it otherwise, the costs discretion could not be invoked against a pig-headed litigant blinded by self-absorbed stupidity or malice. 1. The respondent also cited the Commission's decision in Bragg v NSW Department of Community Services [1999] NSWIRComm 55 where it was held that a clear inflexibility demonstrating no preparedness to consider compromise despite reasonable and diligent attempts by the other side would logically establish an unreasonable failure to agree to a settlement of the claim. 2. The respondent's written submissions then continued as follows (footnotes omitted): 24. Establishing one or both of the above bases necessarily requires an examination and consideration of the various exchanges of settlement between the parties. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. 25. The Respondent relies upon the evidence of Ms Schipp. This evidence reveals: (a) The Respondent made 4 offers to settle the proceedings (the last offer being put twice); (b) The offers made were more beneficial to the Applicant; (c) The Respondent was prepared to make the 3rd offer again (being the fourth offer) during proceedings following the suggestion of the Commissioner for further conciliation; (d) By the time of making the fourth offer on 21 March 2018 the Respondent had already incurred the costs associated with preparation for the hearing and two days of hearing; (e) At no time did the Applicant make any counter offer; (f) The only rationale implicitly provided by the Applicant in respect to the second offer was focused on irrelevant matters such as seeking accreditation to teach agriculture which was irrelevant since there was no offer to reinstate him as a teacher; (g) The third offer which was put twice by the Respondent was a substantial offer given the deficiencies in the Applicant's case (see Ms Schipp Affidavit at 18[a]); (h) The Applicant demonstrated a course of conduct over a relevant period that could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable; and (i) The approach of Applicant demonstrated a clear inflexibility demonstrating no preparedness to consider compromise despite reasonable and diligent attempts by the Respondent. 26. It is conceded an employee is entitled to stand firm in refusing to settle an unfair dismissal claim where it has made a proper, objective assessment of its case and concludes there is a reasonable chance of success in any arbitration. 27. The Applicant did not do this. 28. This was a case where the Applicant's chances are non-existent or at best slim. 29. The Respondent's offer was reasonable taking into account the following: a. The offer was equivalent to I0 weeks' pay as at 2018 but as it was a lump sum, the Applicant would not have been subject to tax at the same rate; b. At the times of the 3rd offer the Applicant could not work as a teacher since he was not accredited as a teacher; c. At the time of the offer, the Applicant had not mitigated his economic loss in any meaningful way; d. These proceedings involved a considerable expenditure of the Commission's time and costs, time and costs to the Respondent as well as the Applicant; e. The offers represented a genuine offer to cease such expenditure; f. The prospects of obtaining an order for reinstatement were close to nil because of the evidence of the Applicant's poor performance and he was no longer accredited to teach; and g. The Teaching Service Act required that paramount consideration be given to the welfare of children in its care (s. 5A). 30. The Applicant acted unreasonably in that not only did he reject the Respondent's reasonable offers he made no counter offer nor did she (sic he) seek to engage in any settlement discussions with the Respondent whatsoever. 31. The evidence demonstrates that the Applicant acted unreasonably in failing to agree to a reasonable settlement offers and his conduct was inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. 32. The Applicant's conduct was unreasonable even though he may have been ignorant of the circumstances calling for a particular response or he lacked the capacity to discern or provide a correct response in the circumstances. Unfortunately, the Applicant's conduct in rejecting the offers made and the conduct of proceedings contrary to constant directions of the Commission it would be open for the Commission to find bares much of the hallmarks of the description of the Court of Appeal in Phillips of a "pig-headed litigant blinded by self-absorbed stupidity or malice." Submissions of the applicant 1. In an affidavit filed by the applicant on 5 March 2019, he responded to the settlement offer referred at [4] above as follows: 10. I agree. I did not accept the offer or make a counter offer. The reason being that I was banned from teaching. 10 (sic 8) weeks pay was not sufficient considering I have a minimum of 20 years employment ahead of me. I have not taught or worked on a regular basis since this offer date. 1. In relation to his rejection of the respondent's second settlement offer referred to at [6] above, the applicant stated: 17. I sent this email. I rejected the offer for the same reasons as for 10. In correspondence with the respondent I asked for the ban on me teaching in NSW government schools to be lifted. It was refused. 1. With respect to his rejection of the respondent's settlement offer which was reiterated during the conciliation conference before Commissioner Newall on 21 March 2018, referred to at [8] above, the applicant stated: 25. I rejected the offer. The reasons being a) as the ban on me teaching stayed. I requested for it to be lifted. b) It was at this stage that it was made clear to me that my NESA accreditation had been cancelled. I did know know the full implications of this. I had not received correspondence from NESA about this. It was written in an affidavit provided by Mark Anderson (DET) that I had received a copy of. At that stage I had not made inquiries to its meaning or its consequences. I made attempts during the lunch break to find out more information about this and its meaning but without success. le; That if I accepted this offer I did not know whether I could ever teach again or if I could regain accrediatation with NESA. c) I was under duress during this adjournment period and did not know the full consequences if I accepted the offer. d) At that stage in the hearing I had not presented my case or cross examined witnesses. e) I had requested I wanted to be given approval to teach. A once off payment of$15000 is considerably less than my earining poitential. for 20 years future employment as a teacher. The reasons that I was appealing had not been heard. 1. The applicant further stated: 28. I have not taught since being dismissed from my position at Condobolin High in December 2016. l have applied to non government schools and organisations since then, but that has been unsuccessful. My application to the lRC for unfair dismisial was to have this decision reversed and to· be able to work in my vocation. 1. In his written submissions, the applicant stated: Mr Britt claims that my appeal was a) vexatious b) That I only appealed to annoy the department. C) That the offers made to me were sufficient. I deny all these claims. My purpose of my appeal was to; a) Be reappointed to my position. b) Be allowed to teach again in NSW DET schools. c) Highlight to an organisation outside the DET ie {The IRC), how I had been treated at work, as my efforts to have this matter discussed following DET policies had been unsuccessful. This was my first opportunity to do this. 1. The applicant then proceeded to deny many of the assertions made against him in support of the respondent's application for a costs order. Determination 1. I reject the respondent's submission that the applicant's unfair dismissal application was vexatious. It is my opinion that, in making his application, the applicant did not have the intention of annoying or embarrassing the respondent or any of its employees. I accept that the prime motivation of the applicant was to be reinstated to the position from which he genuinely believed he had been unfairly dismissed. It follows that I do not accept that the application was brought for collateral purposes. 2. Further, I am not of the opinion that the application was so obviously untenable or manifestly groundless as to be utterly hopeless. 3. Those aspects of the Decision which are cited at paragraph 17 of the respondent's submissions (at [12] above) do not support the respondent's submission that the application was vexatious. I deal with those matters in turn. (a) In the Decision at [48] I simply stated that the applicant had tendered into evidence three "statements" which contained a mixture of evidence and submissions. This is not unusual in cases where the applicant is self-represented and the Commission will normally allow a degree of leeway in this regard. I made no criticism of the applicant in this part of the Decision. (b) At [49] of the Decision I noted that the first matter raised by the applicant was the lambing incident which led to the removal of the applicant's responsibilities for livestock at the school. At [98] I referred to the inordinate amount of time spent by the applicant cross-examining Mr Ward about the lambing incident which I found to have had miniscule, if any, relevance to the termination of the applicant's employment. However, I accept that the applicant held a genuine but misguided belief that it was the lambing incident that triggered the process which eventually led to his dismissal. (c) At [54] of the Decision I recorded that the applicant became aware, when he returned to work after a period of sick leave, that he would no longer be teaching Agriculture and that another teacher had been appointed as the new Agriculture teacher and neither Mr Ward nor anyone from the Department had discussed this matter with him. I made no criticism of the applicant in this part of the Decision and I accept that his concern at being removed from a subject he had been teaching for a long time was understandable. (d) At [55] of the Decision I set out extracts from the applicant's third statement in which he expressed criticisms of the Teacher Improvement Program ("TIP") and some of the people involved in the TIP, including Mr Ward and Ms Rees. Whilst I did not accept that these criticisms were valid, I do not regard them as "unfounded allegations about other teachers" and made no such finding in the Decision. (e) At [66] of the Decision I simply noted that Mr Ward was cross-examined at length by the applicant but did not resile from the evidence which he had given in chief. At [97] I recorded that Mr Ward had been cross-examined at length over the course of three days, including one full day, by the applicant. (f) At [98] of the Decision I stated that the applicant's evidence, submissions and responses under cross-examination were often discursive, sometimes rambling and failed to come to grips with the essential element of the case, being his unsatisfactory performance as a classroom teacher which was so clearly identified during the TIP. One example of the applicant's misguided approach to this matter was the inordinate amount of time spent by him cross-examining Mr Ward about the lambing incident which had miniscule, if any, relevance to the termination of the applicant's employment. However, I accept that the applicant, being a self-represented litigant, was unfamiliar with the processes of the Commission and struggled to present his case in a coherent and efficient manner. His belief as to the connection between the lambing incident and his dismissal was genuinely held but misconceived. (g)-(h) At [103] of the Decision I stated that it was clear that the applicant did not believe that his teaching performance was deficient, in circumstances where the overwhelming weight of evidence before the Commission clearly established that it was. I also stated that I had formed the opinion, based on the evidence before the Commission, including that of the applicant, that he did not positively engage in the TIP. These were matters which rendered his dismissal not unfair. 1. None of the matters discussed above, either individually or collectively, satisfy any of the three tests discussed by Roden J in Wentworth (at [11]) above. None of the additional matters raised by the respondent in its submissions, which are referred to at [13], take the matter any further. 2. The proceedings were not instituted by the applicant with the intention of annoying or embarrassing anybody, nor were they brought for a collateral purpose. The applicant was genuinely seeking to regain his job and restore his career as a teacher which began, initially, in 1999. 3. I am also of the opinion that the application was not so obviously untenable or manifestly groundless as to be utterly hopeless. The applicant was a teacher of longstanding. His employment was terminated for valid reasons based on poor performance. However, he believed that the process that led to his dismissal, and the dismissal itself, were unfair. He was entitled to have that belief tested in the Commission. 4. I do not consider that the application was vexatious. 5. The applicant failed to agree to settle his claim on the basis of the various settlement offers made by the respondent. The final offer that was made by the respondent on 24 January 2018 and reiterated on 21 March 2018 was: a. The Respondent will pay the Applicant ten weeks pay; b. The Respondent will remove the Applicant's name from its list of persons not to be employed in NSW government schools; c. The Applicant undertake that he would not seek or accept employment with the Respondent. d. Each party to pay their own costs of the proceedings; and e. The parties to enter into a Deed of Release to be drafted by the Respondent. 1. In effect, the applicant was being offered ten weeks pay to give up his teaching career, at least in the NSW public education system, and to withdraw his application in this Commission to have that career restored. Faced with such a choice, I am not of the opinion that the applicant unreasonably failed to settle his claim on the terms offered by the respondent. Order 1. The respondent's application for a costs order against the applicant is refused. John Murphy 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. Decision last updated: 15 April 2020