Marianna Janusova v Red Star Gold Coast Pty Ltd

[2024] FWC 2457

[2024] FWC 2457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jason Janus; Marianna Janusova
v

Red Star Gold Coast Pty Ltd

(U2023/9085; U2023/9086)

DEPUTY PRESIDENT LAKE BRISBANE, 20 SEPTEMBER 2024

Application for costs – application for an unfair dismissal remedy – costs application dismissed.

1. Mr Jason Janusova and Mrs Marianna Janusova (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation their dismissal by Red Star Gold Coast Pty Ltd (the Respondent). A decision was issued on 11 March 2024 and 25 July 2024 stating that the Applicant was unfairly dismissed as proper consultation was not given and was awarded compensation.[1]

1. Mr Janus (the Costs Applicant) lodged an application against Red Star Gold Coast Pty Ltd (the Costs Respondent) on 7 August 2024 under s.779A of the Act. Upon receiving materials regarding costs, the matter was determined on the papers.

Should Red Star Gold Coast Pty Ltd bear the Costs Applicant’s costs?

1. Section 611(1) of the Act establishes a general rule that parties in proceedings before the Commission must bear their own costs. There are provisions in the Act which operate as exceptions to this general rule and allow costs to be awarded in specific circumstances. The Applicant is not eligible to make a costs application under s.779A as it relates to unlawful termination applications and not an unfair dismissal application.

1. Therefore, the Costs Applicant does not have jurisdiction to make this application and on this basis the Application should be dismissed under s.587 as it is an application not made in accordance with this Act. Even if the Commission decides to correct the error under s.586 of the Act, a Costs Order would not be issued under s.400A of the Act.

1. Section 400A of the Act provides as follows:

400A   Costs orders against parties

(1)    The Fair Work Commission may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the Fair Work Commission is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2)    The Fair Work Commission may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3)    This section does not limit the Fair Work Commission’s power to order costs under section 611.”

1. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 provides, at [168] to [171], in respect of s.400A of the Act that:

“Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.

As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.

However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances, but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

1. It was not unreasonable for the Respondent to defend its claims against unfair dismissal. The Applicants were given multiple opportunities by the Commission to resolve the matter on an informal basis, had legal representation to advise on their prospects of success, and to withdraw the claim. The Respondent, on a without prejudice basis, had offered to resolve the matter through settlement which the Applicant did not accept. Therefore, the Respondent was required to defend the claim, and having their witnesses ready to present their evidence.

Conclusion

1. Therefore, I exercise my discretion not to award costs in favour of the Costs Applicant in this matter. Accordingly, Mr Janus’ costs application pursuant to s.779A is dismissed.

DEPUTY PRESIDENT

[1] [2024] FWC 531, [2024] FWC 1972.

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