The Canadian-based company GuestTek (the Company) have been ordered to pay an employee’s legal costs incurred in his unfair dismissal proceedings because of the Company’s “unreasonable behaviour” in defending the application.
Commissioner Riordan expressed “sympathy with the Applicant” because of the “frustration [he] experienced” in dealing with the Company’s “attitude and inactivity” throughout the process before the Fair Work Commission (the FWC). The Commissioner commented that the Company was “difficult to contact”, “blasé” and did not take the “basic and necessary steps” to defend the application.
The Company’s Conduct
The Commissioner criticised the employer’s failure to attend the FWC hearing in Sydney, and rejected its excuse that it could not locate a legal representative to attend and was confused by the time difference between Canada and Australia.
The Commissioner also referred to a settlement offer made by the employee prior to the FWC hearing, to which he noted the Company responded, “I find your position parasitic and disgusting”. Importantly, he formed the view that, had the Company sought legal advice from an Australian lawyer, such an offer may have been accepted and the employee wouldn’t have incurred additional legal costs.
The Commissioner also said, despite the fact that settlement offer effectively put the Company on notice of the employee’s intention to rely on the offer in an application for costs, the Company continued to refuse to enter into negotiations.
A Costly Lesson
The employee was awarded $9,125.50 in party to party costs.
A Warning for Employers
The outcome of the employee’s costs application demonstrates the pitfalls associated with an employer inadequately defending a matter before the FWC and/or unreasonably refusing to engage in settlement negotiations.
If you have any questions, please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.