Generally speaking, most matters in the Fair Work Commission run in a “no costs” jurisdiction. This means that parties bringing or responding to applications in the Commission will be responsible for their own costs - no matter who is successful. However, the Commission does have some discretion to order costs in exceptional circumstances. One such rare decision was handed down last week in G v Toll Holdings Ltd [2016] FWC 2790.
Generally speaking, most matters in the Fair Work Commission run in a “no costs” jurisdiction. This means that parties bringing or responding to applications in the Commission will be responsible for their own costs - no matter who is successful. However, the Commission does have some discretion to order costs in exceptional circumstances. One such rare decision was handed down last week in G v Toll Holdings Ltd [2016] FWC 2790.
Mr G was a Yard Truck Driver for Toll Holdings Ltd (Toll). Toll conducted drug testing in accordance with a Drug and Alcohol Policy. In June 2015, Mr G tested positive for drugs at work after taking a saliva test, and his employment was terminated as a result.
Prior to his dismissal, Mr G told Toll that immediately following the saliva test at work, he had gone to his doctor and taken a urine test that was sent off for processing. That test, he said, returned a negative result and showed that he had no drugs in his system.
Mr G maintained this version of events when giving evidence under oath and in his sworn witness statement, to which he attached the urine test results.
At the hearing of this matter, the doctor who administered the urine drug test was called to give evidence. He said that the test results attached to Mr G’s witness statement were not the test results he had given to Mr G and it was apparent that the document relied upon by Mr G had been manipulated. The doctor confirmed that the original test results were positive not negative.
After this evidence, the hearing adjourned briefly and when it can time to recommence, Mr G could not be located. In the words of the Commissioner, Mr G “did a runner.”
Toll then made a costs application pursuant to s611(2) of the Fair Work Act 2009 (Cth) on the basis that Mr G had manufactured the test results on which he was seeking to rely and his entire claim was based on a lie.
The Commissioner found in favour of Toll and ordered Mr G to pay all Toll’s costs to the tune of $18,618.31. The Commissioner found that Mr G’s application for relief from unfair dismissal was without reasonable cause, had no reasonable prospects of success and was vexatious.
The lessons to take away from this unusual case are that employers should not be afraid to defend unfair dismissal matters and that former employees should think carefully before making a claim alleging they were unfairly dismissed.
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