TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – application for unfair dismissal remedy – costs application – in a decision issued on 22 May 2017 the Commission found the dismissal of the applicant to have been unfair [[2017] FWC 2022] – in a further decision and order issued on 16 June 2017 the respondent was ordered to pay compensation [[2017] FWC 2980] – the applicant, through his solicitors, has now made an application for the respondent to pay his legal costs and disbursements in the amount of $4,738.37 as well as personal costs accrued in pursuing his application in the amount of $447.18 – s.611(1) of the FW Act establishes a general rule that parties in proceedings before the Commission must bear their own costs – s.400A provides an additional power to award costs in respect of unfair dismissal remedy applications if ‘the FWC 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’ – the applicant submitted four grounds that the respondent caused the costs claimed to be incurred, being that: it acted unreasonably in dismissing the applicant unfairly; it pursued the applicant postdismissal by threatening him with various legal actions in retaliation of his claim; it deferred and delayed proceedings without providing substantiation of commitments; and it failed to attempt to resolve or settle the matter in a bona fide manner – Commission found the first three grounds for the award of costs advanced did not satisfy the jurisdictional prerequisites for the award of costs under either s.400A(1) or s.611(2) – found the fourth ground had greater merit – after the conciliation there was an agreement in principle for the matter to settle – during the three day cooling off period the respondent sent an email to the conciliator stating it would not agree with the agreement and that it had a matter before the Magistrates Court against the applicant for alleged fraud and costs – as a consequence of this email the settlement reached at the conciliation did not proceed – Commission found the reference in the email to legal proceedings for fraud was an ‘outright falsehood’ – Commission considered the email constituted an unreasonable act on the part of the respondent in connection with the conduct and continuation of the applicant’s unfair dismissal application – the email caused the matter not to settle and the applicant had to continue to prosecute his claim – this caused him to incur costs, including legal costs and personal expenses associated with bringing the claim and attending at court – Commission satisfied that the jurisdictional prerequisite for the order of costs in s.400A(1) met – satisfied Commission should exercise discretion in favour of the grant of an award for costs – total amount of costs which will be awarded in applicant’s favour were $2683.08. Garang v Byron Bay Superfoods P/L
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