The Fair Work Commission (the Commission) is a a jurisdiction that is accessible to self-represented litigants. The Commission is unlikely to award costs against an unsuccessful applicant in an unfair dismissal application. However, there are still exceptional circumstances where the Commission can order costs against an unsuccessful applicant.

In Ms Kelie Smith v Melissa Eileen Horvat T/A Palena Fresh [2020] FWC 5783 (Smith), Commissioner Hunt awarded costs against a self represented applicant in an unfair dismissal application. Commissioner Hunt recognised that costs orders in the Fair Work Commission are very rare and are unlikely to be made in most applications. However, the Commission will depart from this general rule if it is clear that proceedings have been commenced vexatiously or without reasonable cause. The following factors will be considered when determining whether costs should be awarded against an applicant in the Fair Work Commission:

  1. Costs will be awarded if proceedings are commenced to harass or embarrass the other party.
  2. Costs will be awarded if proceedings are commenced to gain a collateral advantage. This would be relevant where the applicant has commenced proceedings to gain an advantage in respect of another claim in a separate jurisdiction.
  3. Costs will be awarded where the application has no reasonable prospects of success. In Smith, a distinction was drawn between the applicant encountering jurisdictional issues in her application and the actual merits of an unfair dismissal claim. For example, Commissioner Hunt held that the Fair Work Act 2009 (Cth) can be confusing for self-represented litigants and failing on a jurisdictional issue is unlikely to warrants a costs order. However, the applicant in Smith also engaged in deceitful and unconscionable conduct which meant that her unfair dismissal application could never succeed. It was on this basis that costs were awarded against the applicant. Significantly, the application would have failed because Ms Smith’s conduct was so deceitful that dismissal was warranted.
  4. Costs will be awarded where the other party has incurred costs.

Ultimately, the Commission ordered costs against the applicant in Smith but also used its discretion to reduce the quantum of the costs order. In exercising its discretion, the Commission considered the applicant’s income, circumstances and expenses and ordered costs of $4,000 payable in weekly instalments of $100.