This passage from an unfair dismissal decision indicates the legal principles which apply to costs in the Fair Work Commission.
“Conclusion
[61] This application for costs was made by the applicant who successfully established that
she had been unfairly dismissed. The costs application was made under ss. 611 and 400A of the
Act. Consequently, the Commission has been required to consider whether the requirements of
subsections 611 (2) (a) and (b) and s. 400A of the Act were met so that costs should be Ordered
in favour of the applicant.
[62] In respect to subsection 611 (2) (a) of the Act, an analysis of the circumstances at the
time that the response to the unfair dismissal application was made, has confirmed that the
response was not made vexatiously or without reasonable cause.
[63] Further, for the purposes of subsection 611 (2) (b) of the Act, having regard for all of
the circumstances of the case, and in particular, the recognised difficulties associated with the
application of the terms of the SBFD Code, the Commission could not be satisfied that at the
time that the response to the application was made, or upon some subsequent assessment, it
should have been reasonably apparent to the employer that the application had no reasonable
prospects of success.
[64] In respect to subsection 400A (1) of the Act, the Commission has not been satisfied that
the actions of the employer in connection with the conduct or continuation of the matter could
be found to have been unreasonable. Consequently, the Commission has not been satisfied that
any unreasonable acts or omissions on the part of the employer have been established in
satisfaction of the requirements of subsection 400A (1) of the Act.
[65] In summary therefore, the requirements of subsections 611 (2) (a) and (b) and 400A (1)
of the Act have not been properly satisfied. The general rule established by subsection 611 (1)
of the Act, that each Party bear its own costs, is not disturbed by any one or more of the
exceptions provided in subsections 611 (2) and 400A (1) of the Act. Consequently, the
applicant’s application for costs must be refused and an appropriate Order shall be issued in
conjunction with this Decision.”
Wood v Amigoss Preschool and Long Day Care Co-Operative Ltd (2023) FWC 2909 delivered 9 February 2023 per Cambridge C