The Fair Work Commission Full Bench (Full Bench) has made an order for a security of costs against a social worker (the Appellant) who must produce $10,000 before the case will proceed. This decision was made after the Appellant appealed a rejected unfair dismissal claim which the Full Bench found had “little prospects of success”.
Cabrini Heath Limited (the Respondent) applied for the security of costs order claiming that the appeal was without merit and that the Appellant was treating the appeal process as part of a “larger war” against the Respondent. The Respondent provided uncontested evidence that the Appellant had no intention of dropping his case against the Respondent and its decision to dismiss him, irrespective of the appeal he lodged.
The Full Bench noted that applications for the security of costs are rare in the Fair Work Commission (the Commission). The Full Bench held that as the Appellant had failed to identify any error of fact or law in Deputy President Gostencnik’s original finding that his dismissal was a genuine redundancy and, rather, he merely “strongly disagrees with the outcome”. The Commission found merit in the Respondent’s argument that the Appellant was pursuing his case vexatiously.
The Full Bench made an order for the security of costs to be set at $10,000 whilst taking into account the Appellant’s limited financial resources. The Full Bench held that Appellant should not be given a ‘free hit’ after already having his matter heard, especially considering that the Applicant had not yet paid costs from the initial proceeding.
The Full Bench clarified that the purpose of security for costs is not to ‘lock out’ impecunious litigants but rather to ensure that if a party brings an appeal and loses, an order for costs can be made for the right that has been exercised by that party. If you have any questions regarding certain dismissal claims, please contact Nick Stevens or Isabella Paganin.