Sidney v Employsure Pty Ltd - [2016] FWC 2659

[2016] FWC 2659

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Emma Sidney
v
Employsure Pty Ltd
(U2015/6453)
COMMISSIONER BISSETT	MELBOURNE, 2 MAY 2016

Application for relief from unfair dismissal – s.400A application for costs - s.611 application

for costs – application dismissed.

1

[1]

On 11 December 2015

I issued a decision (the initial decision) in which I found that

Ms Emma Sidney had been unfairly dismissed from her employment with Employsure Pty

2 3

Ltd (Employsure). On 17 March 2016 I issued a further decision	and Order	with respect to
compensation.

[2] On 30 March 2016 Ms Sidney made an application for costs against Employsure. As a

result of a request for clarification on the application from my chambers Ms Sidney lodged an

amended application with submissions in support of that application on 6 April 2016.

Employsure lodged submissions in reply and Ms Sidney was given an opportunity to provide

a reply to those matters raised by Employsure.

[3] Both Ms Sidney and Employsure indicated they were content for the Fair Work

Commission (the Commission) to decide the application on the basis of written materials

filed.

The application and the legislation

[4] Ms Sidney makes an application for costs pursuant to s.400A of the Fair Work Act

2009 (the Act). She also makes application pursuant to s.611(2)(a) and (b).

[5] The costs Ms Sidney seeks are those incurred by her in gaining legal advice in relation

to her unfair dismissal matter before the Commission.

[6] Section 400A of the Act states:
400A Costs orders against parties
(1) The FWC 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 FWC is
satisfied that the first party caused those costs to be incurred because of an
[2016] FWC 2659
unreasonable act or omission of the first party in connection with the conduct or
continuation of the matter.
(2) The FWC 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 FWC’s power to order costs under section 611.
[7] Section 611 of the Act 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,…

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 Sidney v Employsure Pty Ltd

Details

AGLC: Sidney v Employsure Pty Ltd [2016] FWC 2659
Case: [2016] FWC 2659
Decision Date: 2 MAY 2016

CaseChat Overview and Summary

Emma Sidney filed an unfair dismissal application against Employsure Pty Ltd, seeking costs for legal advice she incurred. The Fair Work Commission found that Sidney had been unfairly dismissed but did not award costs against Employsure. Sidney applied for costs under sections 400A and 611 of the Fair Work Act 2009, arguing that Employsure's unreasonable acts or omissions caused her to incur costs. The Commission considered the submissions from both parties but found that Employsure had not acted unreasonably or vexatiously in responding to the application. The Commission concluded that Employsure had a reasonable basis for its defence and that it was not apparent that its response had no reasonable prospect of success. The Commission dismissed Sidney's application for costs.

Orders