Ryman v Thrash Pty Ltd

In the matter of Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services, the Fair Work Commission Full Bench was tasked with determining an application for costs made by the respondent, Thrash Pty Ltd, pursuant to section 611(2) of the Fair Work Act 2009. The applicant, Jeremy Ryman, had previously appealed a decision of the Commissioner dismissing his application for unfair dismissal remedy. The Full Bench had allowed the appeal, quashed the initial decision, and re-determined the unfair dismissal application, dismissing it. Thrash Pty Ltd now sought an order for Ryman to pay its costs of the hearing and appeal, arguing that Ryman's application and appeal were both vexatious and made without reasonable cause or prospect of success.

The legal issues before the Full Bench were whether Ryman's application and appeal were vexatious or made without reasonable cause or prospect of success under section 611(2)(a) and (b) of the Fair Work Act. The principles guiding these determinations were that an application is vexatious if the predominant motive is to harass or gain a collateral advantage, it is not without reasonable cause merely because it did not succeed, and it should have been reasonably apparent that it had no reasonable prospect of success only if it was manifestly groundless or so obviously untenable that it could not possibly succeed.

The Full Bench found that neither limb of section 611(2) was satisfied. Regarding the first question of the facts of the 19 December 2014 incident, the Commissioner's findings about Ryman's evidence were not considered deliberately fabricated by the Full Bench. As for the second question, Ryman successfully established that the summary dismissal provisions of the Code did not apply, leading to the appeal being upheld. Although Ryman was ultimately unsuccessful in demonstrating that his dismissal was unfair, his case was considered arguable on the merits, particularly since the Full Bench found that Ryman's dismissal was not unfair due to the small size of Wisharts' business. Therefore, the Full Bench concluded that it was not reasonably apparent to Ryman that his application had no reasonable prospect of success.

Accordingly, the Full Bench dismissed Thrash Pty Ltd's application for costs.