This decision of the Fair Work Commission deals with the issue of costs and fair work claims.
“S.611 – Application for Costs
[1]
On 20 December 2024, Mr James Gower lodged an application with the Fair Work Commission, pursuant to section 789FC of the Fair Work Act 2009 (Cth) (the Act).
[2]
Mr Gower alleged that he had been bullied at work during his employment with ROCOM PTY LTD T/A Barbagallo Motoring Group by his manager Mr James Figueroa.
[3]
Mr Gower’s application was not successful. On 13 August 2025 I made an order dismissing his application and published my reasons in the following decision: Gower v Figueroa and ROCOM Pty Ltd (referred to in this decision as My Earlier Decision).1
[4]
On 27 August 2025 ROCOM made an application for costs. ROCOM claims costs on the following two basis:
(a) that Mr Gower’s application was made vexatiously or without reasonable cause (per s.611(2)(a)); and/or
(b) it should have been reasonably apparent to Mr Gower that his application had no reasonable prospect of success (s.611(2)(b)).
[5]
ROCOM relied on evidence from its Human Resources manager which, it said, showed that Mr Gower did not genuinely want to return to work for ROCOM. ROCOM relies heavily on statements by Mr Gower prior to lodging his stop-bullying application to the effect that he could not and would not return to the workplace while Mr Figueroa remained employed.
[6]
For the following reasons I have decided not to grant the application for costs.
The costs provisions of the Act
[7]
Section 611 of the Act is in the following terms:
“611 Costs
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(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4 1).”
[8]
The following general principles are well established in the authorities:
(a) in the ordinary course of litigation costs follow the event. The purpose of a costs order is not to punish the unsuccessful party but to compensate the successful party against the expense to which he or she has been put by reason of the legal proceedings (per Latoudis v Casey;2
(b) in the ordinary course of litigation under the Act, costs do not follow the event, and each party bears their own costs. The purpose or policy of the cost provisions in the Act are to free parties from the risk of having to pay their opponents’ costs in matters arising under the Act, while at the same time protecting parties who are forced to defend proceedings that have been instituted vexatiously or without reasonable cause (per Australian Workers Union v Leighton Contractors Pty Ltd (No 2)3 citing Khiani v Australian Bureau of Statistics;4
(c) to the extent that the cost provisions of the Act provide a protection against costs orders, that protection can be lost by certain conduct (per Kangan Batman Institute of Technology and Further Education v AIRC);5 and
(d) the costs provisions provide a deterrent against unreasonable conduct during proceedings, discourage frivolous and speculative claims and assist in the efficient resolution of claims by encouraging all parties to approach proceedings in a reasonable manner.6
[9]
Section 611 is directed to the commencement of proceedings. Section 611 applies to all proceedings in the Commission under the Act and is in similar terms to s.570 that applies to
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proceedings in a Court under the Act. As such many of the authorities concerning s.611 are actually decisions of the Federal Court applying the equivalent terms in s.570.
[10]
Section 611(1) establishes that parties ordinarily bear their own costs, and s.611(2) provides two exceptions to the rule.
[11]
The first exception, s.611(2)(a) arises when an application is made vexatiously or without reasonable cause. In Tracey v BP Refinery (Kwinana) Pty Ltd the Full Bench identified the following principles to be applied in relation to s.611(2)(a):7
(a)
an application is made vexatiously when the predominant motive or purpose of the applicant is to harass or embarrass the other party or to gain a collateral advantage;
(b)
an application is not made without reasonable cause simply because the application did not succeed;
(c)
whether an application is made without reasonable cause may be tested by asking, on the facts apparent to the applicant at the time the application was made, whether there was no substantial prospect of success;
(d)
if success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to characterise the application as having been made without reasonable cause; and
(e)
an application will have been made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed, or manifestly groundless, or discloses a case where the tribunal is satisfied cannot succeed.
[12]
The second exception, s.611(2)(b) arises when, at the commencement of the proceedings, it should have been reasonably apparent to an applicant or respondent, that their application or response had no reasonable prospect of success. The Full Bench in Gugiatti v SolarisCare Foundation Ltd recited the principles to apply in relation to s.611(2)(b):8
(a)
that it ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
(b)
a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.
Mr Gower’s stop-bullying application
[13]
Mr Gower’s original application was prepared by an experienced paid agent. The application:
(a) noted that Mr Gower had provided ROCOM with a medical certificate declaring him unfit for work;
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(b) included a claim that “The applicant’s health and safety are seriously at risk from the unlawful conduct of Mr Figueroa and has caused the applicant psychological harm rendering him totally unfit for work”;
(c) asserted that “unless the respondent is ordered to stop the bullying, the applicant will be exposed to a toxic and psychologically hazardous workplace”; and
(d) sought orders that (1) the Respondent redeploy Mr Gower away from Mr Figuero and (2) Mr Gower is not to be managed by Mr Figueroa.
My Earlier Decision
[14]
The key reasoning in My Earlier Decision was as follows:
“[27] I have considered the witness evidence of Mr Gower, and the Person Named, and the submissions regarding the reliability of both. Having considered the testimony of the witnesses, I have formed the view that the evidence of the Person Named is to be preferred.
[28] I have formed the view that the relationship between Mr Gower and the Person Named was at times strained, due to interpersonal differences and conflicting personalities. It seems that the Person Named may at times come across too abrasive for Mr Gower. However, I am not satisfied this could be considered more than a lack of personal compatibility rising to the level of bullying.
[29] Having considered the evidence of Ms Jeffrey-Lonnie and the Person Named, I have formed a view that several of the issues raised by Mr Gower were either exaggerated or provided out of context. As such, I am not satisfied that these situations were instances of workplace bullying.
[30] Mr Gower is not presently at work and given his workers compensation claim and it remains unclear as to when or if Mr Gower will return to the workplace. However, as things stand, he is not at risk of bullying in the workplace as he is unable to attend work and there is no information as to when or if he will be able to return to the workplace.
[31] On the evidence that has been provided to the Commission, I am not satisfied that Mr Gower has been bullied at the workplace by the Person Named. From the evidence and submissions of the parties, I have formed the view that some of the communication between the Person Named and Mr Gower could have been handled in a more professional and level-headed manner by the Person Named.
[32] However, on the evidence before me, and in the circumstances of this matter, I am not satisfied that the conduct of the Person Named rises to the level of workplace bullying. From the evidence before me, I believe that the Person Named has conducted reasonable management action and, on the most part, in a reasonable manner, the exception to this being the email of 12 September 2024. I am not satisfied that the Person
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Named has engaged in repeated conduct that would constitute the action being workplace bullying. Although I acknowledged that, on 12 September 2024, the Person Named sent an email in which he was clearly frustrated by the actions of Mr Gower and did not communicate this in an appropriate manner. I am not satisfied this problematic incident strongly supports a finding that bullying has occurred.”
[15]
Although Mr Gower was not successful it cannot be said that his application, after it was fully tested, was completely without merit. More importantly, on the facts that were apparent to Mr Gower when he commenced his claim, his application was not completely without merit. Mr Gower was aggrieved at the behavior of Mr Figueroa towards him, so much so that he was unfit for work because, he said, of Mr Figueroa’s behaviour.
[16]
The Application was not so obviously untenable that it could not have possibly succeeded and was not manifestly groundless.
[17]
ROCOM claimed that the application was made vexatiously, arguing that Mr Gower had no intention of returning to work and therefore could not have made his application for a legitimate purpose. The remedies available in the stop-bullying jurisdiction are confined to making orders to prevent future bullying of an applicant at work.
[18]
In his application Mr Gower sought an order that would have allowed him to return to work but not be managed by Mr Figueroa. Such an order is within the boundaries of the Commission’s jurisdiction. As such it cannot be said that the application was made vexatiously or without reasonable cause.
Conclusion
[19]
The application for costs is denied.”
Application for costs – Rocom Pty Ltd Trading AS Barbagallo Motoring Group v Mr James Gower – [2026] FWC 2272 delivered 18 June 2026 per Schneider C