The Fair Work Commission has ordered an individual to repay their former employer for costs involved with defending a baseless unfair dismissal claim, in a win for employers who believed the awarding of costs was not done in practice.
In May this year, Joan Obuchowski lost her claim for unfair dismissal that she brought against her former employer RNTT, which is trading as Jobs Statewide Employment Solutions.
The Fair Work Commission found that Ms Obuchowski and her husband, also a former employee of the company, “knowingly breached the respondent’s confidentiality and information technology policies”, and that as such, her dismissal could not be deemed unfair.
“She attended the respondent’s premises after she had decided that she would never be returning to work for them and physically removed at least one document and notebooks containing job seekers’ personal information from those premises,” senior deputy president Jonathan Hamberger found.
“She also deleted and directed her husband to delete emails and documents from the respondent’s computer system.”
Two weeks after the judgement was delivered, the business applied to the commission for costs to be awarded in defending the case.
Mr Hamberger this week granted that application, and insisted that, because Ms Obuchowski should have known the unfair dismissal application had no reasonable grounds for success, the business should be reimbursed for costs accrued in defending it.
“In circumstances where Ms Obuchowski relied on factual assertions that she knew to be untrue, it is reasonable to conclude that her case was so lacking in merit or substance as to be not reasonably arguable. It follows that it should have been reasonably apparent to her that her application had no reasonable prospect of success,” Mr Hamberger ruled.
“[As such] I consider that a costs order is appropriate in the circumstances.”
Both the Fair Work Commission and then small business minister Craig Laundy told My Business in August that the Fair Work Act allows for employers to be reimbursed costs for false and vexatious claims, and that there are penalties for giving false or misleading evidence to the commission.
But business leaders suggested at the time these provisions were more theory than practice.
“With over 25 years in HR and consulting, I have never seen FWC use any of the above. Any good employment lawyer will also tell you how rare, if ever the FWC awards costs,” one reader said.
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.