TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – initial decision related to application for unfair dismissal remedy [[2015] FWC 8432] – applicant found to be unfairly dismissed from employment with respondent – applicant made costs application against respondent – incurred costs gaining legal advice in relation to unfair dismissal – submitted required legal assistance due to complexity of case – contended should have been evident to respondent dismissal process deemed unfair – claimed respondent knew this by its offer to settle prior to hearing – claimed costs incurred because of unreasonable acts or omissions of respondent – behaved vexatiously by email sent before hearing indicating respondent would make no further offers when it made two further offers and threatening to make costs application – delays in finalising matter deliberate and to advantage of respondent – reasonable person will determine if and how to respond to offer of settlement after considering all the circumstances of the case including terms of settlement in relation to relief sought [Roy Morgan Research] – Commission found respondent acted in manner directed to having matter dealt with expeditiously but fairly for purposes of s.400A – whether proceeding instituted vexatiously looks to motive of party in instituting proceeding – where predominant purpose in instituting proceeding is to harass or embarrass the other party, or to gain collateral advantage [Holland] – Commission rejected respondent behaved vexatiously or unreasonably for purposes of s.611(2) – fact that respondent may have taken hard line in settlement discussions cannot be taken to be done with predominant purpose to harass or embarrass applicant – also not satisfied reasonably apparent to respondent that its response to application had no reasonable prospects of success – noted applicant sought to recover costs incurred before commencing actions with Commission – application for costs dismissed. Sidney v Employsure P/L
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