The Queensland Industrial Relations Commission has ordered a boss to pay his former employee’s legal costs for an aborted trial.
The rare order by Commissioner Sam Pidgeon means hairdresser Michael (Mahamad) Dib must pay Elly Wearne $15,050 to cover her legal expenses.
Wearne has accused Dib of sexually harassing her while she worked at his Gold Coast salon.
However, Dib failed to appear at a scheduled four day hearing to determine the matter in early October.
The hairdresser’s solicitor son, Torik Dib, told the Commission on the first day of the trial that his father was mentally unwell.
Mr Pidgeon found Dib Snr and his legal representatives failed to warn the Commission about the possibility of a delay before the trial began.
Wearne first made a sexual harassment complaint against Dib Snr in the Queensland Human Rights Commission in June 2020.
The QHRC adjourned two planned conciliation conferences and abandoned plans for a third after Dib Snr claimed to be unwell on every occasion.
The QHRC subsequently referred the matter to the QIRC for determination in June 2021.
Legal problem then health issues
On Sunday 3 October, two days before the trial was due to begin, Dib Jnr emailed the QIRC to say his father couldn’t proceed because of a legal problem.
He claimed Dib Snr had sacked his counsel and would therefore be unrepresented at the hearing.
As a consequence, he requested the QIRC vacate the matter.
However, when the hearing commenced two days later on Tuesday 5th October, Dib Jnr changed his story.
He told the Commission his father couldn’t appear because of ongoing mental health issues.
But he had failed to mention this in his email two days earlier.
The Dib’s family GP, Dr David Seton, told the Commission the hairdresser was feeling “terribly anxious” as a result of the legal action.
He also said Dib Snr might experience a panic attack if he appeared at the Commission.
When later questioned by Mr Pidgeon, Dr Seton agreed it would be reasonable for Dib Snr to participate in the hearing via telephone.
Wearne’s legal representative, Greg McGuire QC, instructed by Worker Law, described the request for an adjournment as “disingenuous”.
He noted the multiple previous adjournments, in addition to Dib Jnr’s earlier email which did not mention his father’s mental health issues.
Mr Pidgeon raised similar concerns with Dib Jnr.
“He was aware on Friday that [his father’s] mental health issues were such that his legal representative decided he needed to be referred for assessment by a psychologist on Friday but no mention was made of mental health issues being a potential reason for an application to vacate the trial until the morning of the trial was due to commence.”
Dib Jnr blamed a delayed psychologist’s report for failing to mention his father’s mental health issues earlier.
He then threatened to withdraw as his father’s legal representative if the hearing went ahead.
Mr Pidgeon subsequently adjourned the trial.
Commission orders boss to pay costs
Worker Law applied for Dib Snr to pay their client’s legal costs for the aborted four day hearing.
They argued she incurred unnecessary expenses as a result of the conduct of Dib Snr and his son’s firm of solicitors.
In response, Dib Jnr claimed he had made all parties aware of the potential of a vacated trial as soon as he knew about his father’s health issues.
Mr Pidgeon did not accept this argument.
“While [Ms Wearne] was preparing to attend the hearing and her representatives were both making preparations for hearing… Mr Dib Jnr was making plans for [his father] to undergo a mental health assessment to establish if it would be necessary to vacate the trial dates the following week.
“At no time on Friday 1 October did [Dib Snr] seek to update [Ms Wearne] or the Commission as to the possibility for the hearing to be unable to go ahead on Tuesday.”
Mr Pidgeon therefore ordered Dib Snr to pay Wearne’s legal costs totaling $15,050.
Request to postpone costs rejected
He also rejected a request by his solicitor son to postpone the costs order until the conclusion of the matter, describing it as “unsatisfactory”.
“The Applicant has been placed in a situation where, in circumstances completely beyond her control, the matter was vacated with no confirmation as to when it may be able to be set down for hearing again,” he said.
“It may be some significant time until the matter is able to be heard and I think that this is an occasion that warrants the awarding of costs in the interlocutory stages.”
Lack of respect
Employment lawyer Christiaan van Oeveren from Worker Law said it is unfair to expect Wearne to pay the costs of foreseeable delays.
“The conduct of Mr Dib Snr and his representatives shows a lack of respect for the process, for the Commission and also for our client,” he said.
“This rare costs order shows the seriousness of the process. It is also an acknowledgment of the financial impact a long legal process has on Applicants such as Ms Wearne.”
The QIRC has re-listed the matter for trial in April 2022.
It will go ahead regardless of whether Dib Snr or his representatives attend or not.
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