Employer ordered to pay $87,000 in unfair dismissal costs

Amara Somasundram v Department of Education & Training, [2016] FWC 1504 and 4231

The Fair Work Commission has recently ordered an employer pay an employee who was unfairly dismissed more than $87,000 in legal costs, in addition to an order that the employee be re-instated to her employment.

The decision (see Amara Somasundram v Department of Education & Training, North-Eastern Victorian Region [2016] FWC 1504 and 4231) is a good example of when it might be possible for an employee to ask the Commission to have their employer pay for their legal costs in an unfair dismissal case.

In most legal proceedings and jurisdictions not involving the Fair Work Act 2009 (Commonwealth), costs of the successful party are paid by the unsuccessful party.

However in unfair dismissal proceedings parties usually have to pay their own legal costs, regardless of the outcome.

The exception to this under the Fair Work Act 2009 (Commonwealth) is that a successful party can seek costs against the other party if that party caused costs to be incurred because of an unreasonable act or omission in conducting the matter.

Commission critical of response to bullying and reinstatement

The employee in this case had taken a long period of leave from work due to mental health issues which were, it was alleged, caused by workplace bullying.

The Commission was very critical of the manner in which the employer handled the employee’s bullying complaints. Deputy President Anne Gooley said that the Acting Assistant Principal at the school that the employee worked at ‘took no steps to assist in resolving her [the employee’s] complaints’ and ‘despite the medical advice, expected [her] to put those events behind her and move on’. This expectation, Deputy President Gooley said, was unreasonable.

Following the poor response from the school to the employee’s bullying complaints, she made a statement at a school meeting and sent some emails which raised her frustration at the state of affairs. Following an investigating by the school, the employee was dismissed for ‘disgraceful, improper and unbecoming’ conduct in relation to her statement and emails.

The employee was awarded re-instatement on the basis that there was nothing in the employee’s statement or emails that was ‘disgraceful, improper and unbecoming’ as had been alleged.

Employer makes admissions, then back-tracks

During the course of proceedings, the employer admitted that the Commission could find the dismissal to be unfair.

The Commission viewed the employer’s conduct in the proceedings as unreasonable because, despite making the above mentioned admission, it:

demanded the employee file submissions on whether the dismissal was unfair after it withdrew its own key witness statements and oral evidence that went to this very issue;
sought to introduce a new witness late in the proceedings; and
continued to argue against re-instatement on the basis there had been an ‘irretrievable breakdown of trust and confidence’ when it was clear that any such breakdown was entirely the employer’s fault in how it handled the bullying complaints.

The Commission found these actions by the employer to be entirely unreasonable and that they unnecessarily caused the employee to incur significant legal costs in running her case.

The Commission said that it should have been apparent at the time the employer filed a response to the unfair dismissal application before the hearings had commenced that it had no reasonable prospects of success.