DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dushanthi Jayamaha
v
Amelie Housing
(U2021/1458)

DEPUTY PRESIDENT BOYCE

SYDNEY, 28 SEPTEMBER 2021

Application for costs by employer respondent to unfair dismissal claim – costs orders sought (pursuant to s.400A and s.611 of the Fair Work Act 2009) against applicant who made an unfair dismissal claim – costs orders sought (pursuant to s.401 of the Fair Work Act 2009) against applicant’s representative – costs orders against applicant (employee) dismissed - Commission satisfied that applicant’s representative (Unfair Dismissals Australia) engaged in unreasonable act or omission in respect of the conduct of the matter – discretion to award costs against the applicant’s representative enlivened - costs order made against applicant’s representative.

Introduction

[1] On 22 February 2021, Ms Dushanthi Jayamaha, the First Costs Respondent (FCR), filed an application for an unfair dismissal remedy (UD Application) against Amelie Housing, the Costs Applicant (CA). The matter was heard on 28 April 2021.

[2] On 12 May 2021, I dismissed the UD Application on the ground that the FCR was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (Act) (see [2021] FWC 2848, published 25 May 2021 (UD Decision)).

[3] Post the publication of the UD Decision, the CA made an application for an order as to costs against the FCR pursuant to s.400A and s.611 of the Act. The CA also seeks an order as to costs against the FCR’s paid agent, Unfair Dismissals Australia Pty Ltd t/as Unfair Dismissals Australia (UDA) pursuant to s.401 of the Act.

[4] Following the receipt of submissions and evidence in accordance with Directions made, I held a hearing in Sydney to resolve this Costs Application. Mr Warwick Ryan, Partner,of Hicksons Lawyers, appeared for the CA. Ms Madison Beaumont, paid agent, of Unfair Dismissals Australia, appeared for both the FCR and UDA.

Relevant legislation

[5] The power to award costs under s 611 of the FW Act is limited. It reads:

“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…

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.

Keep reading for free

Create a free CaseChat account to read Dushanthi Jayamaha v Amelie Housing and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 4919
Decision Date: 28 SEPTEMBER 2021

CaseChat Overview and Summary

The case of Dushanthi Jayamaha v Amelie Housing involved an application by the employer, Amelie Housing, for costs against the employee, Dushanthi Jayamaha, who had previously brought an unfair dismissal claim. The matter was heard in the Fair Work Commission. Amelie Housing sought costs pursuant to sections 400A and 611 of the Fair Work Act 2009, against both the employee and her representative, Unfair Dismissals Australia. The primary legal issue before the Commission was whether the costs orders sought against the employee and her representative were justified.

The Commission considered whether the applicant, Dushanthi Jayamaha, had engaged in conduct that warranted an order for costs under the Fair Work Act. The Commission concluded that there was no basis to make a costs order against the applicant, as it was satisfied that her representative had engaged in unreasonable conduct in respect of the conduct of the matter. Specifically, the Commission found that Unfair Dismissals Australia had acted unreasonably in pursuing the unfair dismissal claim without sufficient basis. Therefore, the discretion to award costs against the applicant’s representative was enlivened, and the Commission exercised that discretion by making a costs order against Unfair Dismissals Australia.

In summary, the Commission dismissed the application for costs against the employee, Dushanthi Jayamaha, but found that Unfair Dismissals Australia had acted unreasonably and ordered costs against them. The final orders reflected this decision, with no costs awarded against the employee but a costs order made against the applicant's representative.

Orders