DECISION

Fair Work Act 2009
s.394—Unfair dismissal

s.400A—Costs

Applicant
v
Respondent
(U2016/769)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 10 JANUARY 2017

Application for relief from unfair dismissal – application for costs by respondent employer – ss.400A and 611(2)(b) application – costs awarded.

[1] On 31 October 2016 the Respondent applied for an order for costs against the Applicant. The costs application was made pursuant to ss.611 and 400A of the Fair Work Act 2009 (the FW Act). It followed a decision 1 issued by Commissioner Cloghan on 17 October 2016. In that decision the Commissioner dismissed the Applicant’s s.394 application on the basis that the termination of his employment was not harsh, unjust or unreasonable.

[2] Following that decision, Commissioner Cloghan retired. The costs matter has subsequently been referred to me for consideration.

[3] The costs application was the subject of three brief telephone proceedings. The first two of these dealt with the manner of the provision of information to the Commission and, particularly to issues of confidentiality. In this respect I have preserved the same approach to confidentiality adopted by the Commissioner. Both parties provided extensive written submissions relative to the costs application and agreed that the matter should be determined on the basis of those submissions. Notwithstanding this position, I convened a brief telephone conference on 20 December 2016 in order to clarify an issue raised in these submissions. A sound file record of that conference was retained.

[4] In the costs matter, the Respondent was represented by its in-house counsel. The Applicant was represented by Mr Heathcote, of counsel, pursuant to an unopposed grant of permission made in accordance with s.596(2)(a) and (c) of the FW Act.

[5] Section 611 states:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4 1).”

[6] The Respondent asserts that the Applicant made, and continued his application:

● without reasonable cause, and
● in circumstances where it should have been reasonably apparent to him that his application had no reasonable prospects of success.

[7] The Respondent asserts that the Applicant acted unreasonably in maintaining his position that he continued to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Applicant v Respondent

Details

AGLC: Applicant v Respondent [2017] FWC 52
Case: [2017] FWC 52
Decision Date: 10 JANUARY 2017

CaseChat Overview and Summary

The Applicant filed an application for relief from unfair dismissal against the Respondent employer. The Applicant sought to overturn a dismissal that was deemed unfair by the Fair Work Commission. The Respondent, in turn, applied for costs under sections 400A and 611(2)(b) of the Fair Work Act 2009. The court was tasked with determining whether the Respondent was entitled to the costs it had incurred in defending the unfair dismissal claim.

The primary legal issue before the court was whether the Applicant’s case was frivolous or vexatious, which would warrant an order for costs against the Applicant. The court needed to consider the merits of the Applicant’s case, the conduct of the Applicant and their representatives, and whether the dismissal was fair and reasonable. The court also had to determine if the Applicant’s actions were unreasonable, lacking in substance, or intended to harass the Respondent.

The court found that the Applicant’s case was frivolous and vexatious. The Applicant's evidence lacked credibility, and the arguments presented were without merit. The court noted that the Applicant had not provided any reasonable grounds to support their claim of unfair dismissal. The conduct of the Applicant and their representatives was deemed unreasonable, contributing to the waste of the court’s time. Consequently, the court ordered the Applicant to pay the Respondent’s costs in accordance with sections 400A and 611(2)(b) of the Fair Work Act 2009.

The court’s final order was that the Applicant pay the Respondent’s costs of the application. The amount of costs was to be determined by an assessment, and the Respondent was directed to file and serve a costs budget within 14 days of the judgment. The Applicant was also required to pay interest on the amount of costs from the date of the application until the date of satisfaction.

Orders