What should an unfair dismissal case cost?

On very rare occasions, the Fair Work Commission will order an applicant who loses an unfair dismissal case, to pay the costs of the employer. The Fair Work Act makes it plain that the Commission is a costs free jurisdiction and provides that costs orders are not to be made except in exceptional circumstances.

“611 Costs

(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.”

Nevertheless, the Fair Work Regulations contain a Schedule of costs as a guide when a rare order is made and here is a Schedule of costs which was recently submitted to the Commission when a costs order was sought. As it happens, the Commission refused to make a costs order but the schedule makes interesting reading nonetheless.

“The Costs Applicant seeks the following amount on scale as per the Fair Work Regulations 2009 – Schedule 3.1 in the sum of $10,281.20 for the entire proceeding not including this application for costs. The following table is an itemised schedule of costs:

Galea v Billabong Custom Caravans Pty Ltd T/A Billabong Custom Caravans (2017) FWC 2943 delivered 20 June 2017 per Gostencnik DP