TERMINATION OF EMPLOYMENT – costs – ss.394, 611 Fair Work Act 2009 – application for costs by respondent – applicant’s unfair dismissal application dismissed on 25 October 2016 [[2016] FWC 7740] – Commission found dismissal was genuine redundancy – respondent submitted that prior to conciliation it indicated that dismissal was a case of genuine redundancy – further submitted that on 4 October 2016, respondent sent applicant a letter explaining she was made genuinely redundant and it was unlikely her application would succeed -emailed applicant on 19 October 2016 to confirm that they would not pursue costs against her should she discontinue her application – applicant submitted that she received letter which stated that respondent would pursue costs should she proceed with her application which was intimidating and threatening – power to award costs discretionary, presumption of FW Act is that each party bears own costs – costs may be awarded where Commission is satisfied that the unreasonable act or omission of a party, in connection with continuation or conduct of matter, has caused other party to incur costs – term for ‘without reasonable cause’ is ‘whether on facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success’ [Kanan v Australian Postal and Telecommunications Union] – Commission found applicant did not have ulterior motive in pursuing unfair dismissal claim – found applicant was aggrieved by decision to terminate employment and wanted to prosecute application – Commission then considered whether applicant pursued application ‘without proper cause’ – assessment needed to be made as to whether application had no reasonable prospects of success and if was apparent to applicant – Commission found that having been informed of case against her the applicant should have reached the conclusion that her application did not have any reasonable prospects of success – Commission ordered costs of $1583.00 for expenses incurred by respondent for travel to the hearing but not for wages. Mitchell v Kellogg Brown & Root Ltd t/a KBR
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