NB Lawyers – lawyers for employers recently acted for the Fraser Coast Regional Council (the Council) and successfully obtained a costs order following an unsuccessful application for reinstatement filed by a former employee. We have previously written an article discussing the unsuccessful substantive application (https://www.lawyersforemployers.com.au/application-for-reinstatement-denied).
HR Teams in Councils (or any practitioner familiar with employment law) may appreciate the difficulty in obtaining an order for costs in a jurisdiction where each party is expected to bear their own costs, even where an application ultimately is determined to have little merit. In a previous application for costs before the Queensland Industrial Relations Commission, it was noted that “A conclusion that the application was not arguable may only be reached by basking in the wisdom of hindsight. There was no vexation or abuse of process. We dismiss the application for costs.”
This article focuses on the key steps taken by the Council which proved to be decisive in securing the costs order.
The steps NB Lawyers – lawyers for employers took to secure the costs order
Acting Reasonably – settlement offers
One of the key considerations in favour of the costs order being granted was the fact the Council had acted reasonably and continued to attempt settlement of the dispute. The failure to settle at a conciliation conference for an application for reinstatement should not preclude councils from further attempts at settlement. It is also important to ensure that all settlement offers are made in writing and provide a reasonable opportunity for an employee to accept the offer. Finally, settlement offers should put the employee on notice of the consequences of failing to accept the offer. In the above matter, the Council foreshadowed it would seek a costs order if the employee did not accept the offer. This ultimately proved to be the case.
Long period of service
The difficulty in the above matter was the fact the employee had a lengthy period of service, which is often a consideration in favour of a dismissal being unfair. Commissioner Thompson highlighted this point in his decision, noting “It was in [his] view reasonable for an employee with more than 10 years’ service with an employer to be in the first instance aggrieved with a decision to end such employment and to mount a challenge”. This statement highlights the difficulty of establishing an application was commenced ‘without reasonable cause’ (which is often relied upon to obtain a costs order), even in circumstances where a council believes they have taken all necessary steps in ensuring procedural fairness to effect a dismissal.
Full access and disclosure
Nonetheless, our firm’s strategy was to ensure the settlement offers were made in circumstances where the employee had full access (through disclosure) to the material which was to be relied upon by the Council at the hearing. This allowed the employee to assess their prospects of success in tandem with the settlement offer. Ultimately, Commissioner Thompson concluded given the amount offered by the settlement offer and the availability of the Council’s evidence to the employee, it “ought to have been apparent” to the employee they had no reasonable prospects of success.
In addition to strengthening a subsequent application for costs, there are certain intrinsic benefits for councils to continue attempts at settlement. In practical terms, this may include the time and effort required for HR Teams to prepare for hearings and to familiarise themselves with often lengthy and complex employment histories. In the context of litigation, councils should also consider how their HR Teams would perform in the witness box and whether they can serve as convincing and credible witnesses.
If you are in HR employed by a council and require advice on strategies to protect council’s interests in employment law or industrial relations matters (including any litigious matters), NB Lawyers – Lawyers for Employers can offer an obligation free consultation to discuss how we can assist you with any concerns you may have.
About the Authors
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.
Dan Chen is a lawyer at NB Lawyers,
the lawyers for employers, and specialises in employment law. Dan is passionate
about assisting business owners, small and large understand their obligations
under Australia’s complex workplace relations system.
 Fraser Coast Regional Council v Alderton  QIRC 001
 Walters v BT Equipment Pty Ltd No 2  QIRComm 22