Vivek Singha v Metal Manufactures Pty Limited - [2025] FWC 2817

[2025] FWC 2817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vivek Singha
v

Metal Manufactures Pty Limited

(U2025/2703)

DEPUTY PRESIDENT BOYCE

SYDNEY, 8 OCTOBER 2025

Application for costs under ss.400A(1) and 611(2)(b) of the Fair Work Act 2009 - no contest that Applicant/Costs Respondent had an annual rate of earnings above the high income threshold - Commission satisfied that the Costs Respondent’s unfair dismissal application “had no reasonable prospects of success” at the time it was filed (s.611) - Commission also satisfied that the Costs Respondent engaged in an “unreasonable act or omission by the Costs Respondent in connection with the conduct or continuation of the UD Application after being notified by the Commission of high income threshold case law as it applies to his UD Application (s.400A) - discretion to award costs against the Costs Respondent enlivened - costs order made.

Overview

Metal Manufactures Pty Limited (Costs Applicant/Respondent) has filed an application for an order for costs (Costs Application) with the Fair Work Commission (Commission) on 25 June 2025 against Mr Vivek Singha (Costs Respondent/Applicant) under s.400A and s.611 of the Fair Work Act 2009 (FW Act).

On 7 March 2025, the Costs Respondent filed an unfair dismissal application (UD Application) with the Commission alleging that he was unfairly dismissed (within the meaning of s.385 of the FW Act) by his employer, the Costs Applicant.

In its Form F3 Response (filed 3 April 2025), the Costs Applicant (relevantly) raised a jurisdictional objection to the Application, being that the Applicant’s employment was not covered by an award or enterprise agreement, and his annual rate of earnings (at the time of his dismissal) was above the high income threshold ($175,000 per annum from 1 July 2024 – 30 June 2025) (HIT Objection).[1] In this regard, the Costs Applicant pointed out that, as a matter of fact, the Costs Respondent’s base annual salary as at the time of his dismissal was $200,000 per annum, excluding superannuation.[2]

On 28 April 2025, the UD Application was allocated to my Chambers. At 5:02PM on 28 April 2025, my Chambers emailed the Costs Respondent, as follows (28 April Email):

“Dear Mr Singha,
This matter has been allocated to the Chambers of Deputy President Boyce.
With reference to the attached two decisions of the Fair Work Commission in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia[2012] FWAFB 6108, at paragraphs [8]-[9], and Paul Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment [2021] FWCFB 154, at paragraphs [49]-[50], kindly clarify the basis on which you say you fall under the High Income Threshold (which is currently $175,000).
Yours faithfully,

[Associate]”

The Costs Respondent was sent a further email from my Chambers at 11:28pm on Wednesday, 30 April 2025, requesting that he respond to the 28 April Email by no later than 12:00PM on Thursday, 1 May 2025.

At 1:18PM on 1…

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 Vivek Singha v Metal Manufactures Pty Limited

Details

AGLC: Vivek Singha v Metal Manufactures Pty Limited [2025] FWC 2817
Case: [2025] FWC 2817
Decision Date: 8 OCTOBER 2025

CaseChat Overview and Summary

Metal Manufactures Pty Limited (Costs Applicant/Respondent) filed an application for an order for costs against Mr Vivek Singha (Costs Respondent/Applicant) under sections 400A and 611 of the Fair Work Act 2009 (FW Act). The Costs Respondent had filed an unfair dismissal application alleging he was unfairly dismissed by his employer, the Costs Applicant. The Costs Applicant raised a jurisdictional objection to the unfair dismissal application, stating that the Costs Respondent's employment was not covered by an award or enterprise agreement, and his annual rate of earnings exceeded the high income threshold. The Costs Respondent argued that his actual earnings did not exceed the threshold and the threshold objection was a distraction from the unfair dismissal application. The Deputy President Boyce found that the Costs Respondent's unfair dismissal application had no reasonable prospects of success because it was jurisdictionally barred and doomed to fail given the application of the high income threshold. The Deputy President was also satisfied that the Costs Respondent caused costs to be incurred by the Costs Applicant because of an unreasonable act or omission in connection with the conduct of the continuation of the matter. The Deputy President exercised his discretion to award costs against the Costs Respondent and ordered him to pay $7,869 to the Costs Applicant within 21 days.

Orders