[2013] FWC 224

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Fair Work Act 2009
s.394—Unfair dismissal

Lyndell Dryden
The Bethanie Group Inc



[1] This matter involves an application made under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The applicant is Ms Dryden and the respondent is the Bethanie Group Inc (Bethanie).

[2] Following the Applicant’s discontinuance of this matter on 20 August 2012 the Respondent has applied for Fair Work Australia to order the Applicant to pay some or all of the costs of the Respondent pursuant to Section 611(2) of the Act.


[3] The unfair dismissal remedy application was made on 3 February 2012 by George Giudice Law Chambers on behalf of the applicant.

[4] The applicant had been terminated on 20 January 2012 following an investigation by Bethanie into a number of allegations involving Ms Dryden. The letter of termination of that date refers to findings Bethanie had reached regarding the applicant and the treatment of a client’s family member, breaches of confidentiality, breaching direct orders from her manager, placing clients at risk, threatening behaviour within the workplace, attempting to undermine the authority of her manager and attempting to fraudulently claim funding.

[5] Ms Dryden’s application referred to the above matters and explained that she had responded to the allegations in writing, that the allegations of misconduct were not correct and that she denied having taken part in any conduct of the nature described by Bethanie. The application went on to state that she would find it difficult to obtain other employment given her age and that her termination would have a negative impact on her employability in Geraldton, where she had been employed, which is a small town.

[6] The matter as is normal proceeded to a conciliation conference but was not resolved at this level.

[7] Shortly thereafter Ms Dryden’s lawyers notified that they were no longer acting for her in any capacity.

[8] From this point onwards Ms Dryden was self represented.

[9] The matter was listed for hearing and directions were issued for the parties to respectively provide their witness statements and outlines of submissions.

[10] In compliance with those directions Ms Dryden lodged a one-page witness statement which did not deal with the substance of the allegations that led to her dismissal. In addition Ms Dryden lodged five other single page witness statements from other persons. These statements did deal with some matters that may have been relevant to the allegations that led to Ms Dryden’s dismissal.

[11] The respondent in reply lodged and served comprehensive witness statements from eight persons whose evidence dealt extensively with the allegations, investigation and events leading up to Bethanie’s dismissal of Ms Dryden.

[12] The respondent had made a number of offers to Ms Dryden as a basis of settlement. Offers were made to her in April 2012 and as late as 3 August 2012 being four days before the listed hearing date. All of these offers were rejected by Ms Dryden.

[13] The tribunal and a number of the respondent’s witnesses travelled to Geraldton for the hearing which had been listed for the 7th, 8th and 9th of August 2012.

[14] Late on the afternoon of 6 August 2012, the day before the first day of hearing, the tribunal was advised by telephone from a friend of Ms Dryden that she was unwell and had been admitted to hospital.

[15] Prior to the listed hearing time on 7 August 2012 the applicant rang to say that she had been discharged and asking if the hearing could be adjourned. She advised her doctor was strongly discouraging her from attending the hearing that day and she advised she didn’t think she would be able to proceed the following day. Ms Dryden was directed to attend the hearing that morning so she could explain her situation to the tribunal and the respondent and a decision could be made on how the matter would proceed.

[16] Ms Dryden did not attend at the tribunal on 7 August 2012 and following further communications was directed to attend the following day 8 August 2012 but again failed to attend. Consequently the matter was adjourned.

[17] Subsequently the applicant on 20 August 2012 advised she was discontinuing her application in part on medical advice.

The legislation

[18] The Act in section 611 provides that generally in matters before Fair Work Australia the parties must bear their own costs but Fair Work Australia has the discretion to order one party to bear some of the costs of the other party in some limited circumstances. The section is set out below.

611 Costs

[19] In this instance the question is whether Fair Work Australia is satisfied that Ms Dryden either made her application vexatiously or without reasonable cause or that it should have been reasonably apparent to her that her application had no reasonable prospect of success.

[20] Regarding the approach to be taken a number of Full Bench decisions of Fair Work Australia have considered s.611 of the Act. These decisions 1 commonly refer to the two decisions below with authority:


[21] It is submitted for Bethanie that FWA should be satisfied that the Applicant commenced her application without reasonable cause and/or it should have been reasonably apparent to the Applicant that her application had no reasonable prospect of success.

[22] It is argued that at the time of filing her application Ms Dryden knew the allegations against her were serious and many of those if substantiated would warrant summary dismissal. She knew the allegations against her had been substantiated by the respondent following an investigation, and the applicant knew that the allegations were substantiated using a mixture of documentary evidence and evidence from other parties including independent third parties.

[23] It is also submitted that the applicant’s conduct after the commencement of the proceedings support the conclusion that the applicant’s application was commenced without reasonable cause and/or without reasonable prospects of success.

[24] In this respect the respondent points to the applicant’s rejection of various offers of settlement, her failure to attend the hearing on 7 August and 8 August and her failure to bring later supplied medical certificates to the attention of the tribunal or the respondent at these dates of hearing and finally that the applicant having put the respondent to the expense of attending the listed hearing in Geraldton elected to then discontinue her application.

[25] For her part the applicant simply asserts that she genuinely believed she was unfairly dismissed.


[26] The respondent has forcefully argued that Ms Dryden made her application without reasonable cause and / or that it should have been reasonably apparent to Ms Dryden that her application had no reasonable prospect of success.

[27] Further in its oral submissions the respondent also argued that the tribunal should infer from the applicant’s conduct that she had instituted the application vexatiously. Beyond this single observation the respondent has not otherwise argued that the application was instituted vexatiously.

[28] In my view there was nothing that supports the conclusion that Ms Dryden did institute this application vexatiously.

[29] Turning then to consider whether the application was made without reasonable cause, in this matter some of the evidence of Ms Dryden’s witnesses would have been relevant to the matters that were being investigated by Bethanie which ultimately led to Ms Dryden being terminated. The evidence of these witnesses, as was the case for Bethanie’s witnesses, however has never been tested in court because the hearing of this matter did not proceed. On its face though the untested evidence of Ms Dryden’s witnesses means there was some possibility, albeit very limited, for Ms Dryden to challenge some of the conclusions that resulted from Bethanie’s investigations.

[30] The respondent particularly argues that some of Ms Dryden’s actions, such as writing letters that could be said to have undermined her superiors, she was fully aware of and she objectively should have appreciated these actions alone warranted her dismissal. This argument of course goes to establishing that there may have been a valid reason for Ms Dryden being dismissed of which she was aware. That in itself however does not demonstrate that her application had been made without reasonable cause.

[31] The existence of a valid reason for a dismissal is only one criteria the tribunal will take into account when considering whether it is satisfied that a dismissal was harsh, unjust or un reasonable and so potentially unfair. The fact that there may well have been one or more valid reasons for the respondent to have dismissed Ms Dryden, does not determine that there was no reasonable cause when she made this application. The existence of valid reasons for her dismissal by itself does not show that her application would have failed.

[32] I also note that the time of making the application Ms Dryden was legally represented and assumedly was acting on the basis of that legal advice.

[33] Considering these matters I am not satisfied that it has been demonstrated that Ms Dryden had made her application without reasonable cause.

[34] Considering then whether it should have been reasonably apparent to Ms Dryden that her application had no reasonable prospect of success, as mentioned above there were facts known to Ms Dryden that objectively meant she should have appreciated there were valid reasons for her dismissal. Accepting that was the case does not of itself demonstrate that her application was manifestly untenable or groundless or so lacking in merit or substance that it was not reasonably arguable. This is because the tribunal’s considerations in such applications go beyond the question of the presence of valid reasons for dismissal. Her case was clearly weak but in circumstances where the matter has not been heard in full and there was likely to be conflicting evidence and debate on a range of matters it cannot be said that the case was groundless.

[35] Considering Ms Dryden’s actions after making this application, I do not infer from her rejecting reasonable offers of settlement, failing to attend hearings and shortly thereafter discontinuing her application that she knew her application had no reasonable prospect of success. Rather her actions, whilst ill considered and rightly being the basis for strident complaint from the respondent, were regrettably for all involved characteristic of an ex-employee who lacked an appreciation of what was involved in pursuing an application such as this to a determinative proceeding and was not able to cope with her situation as this proceeded.

[36] Whilst I have considerable sympathy for the negative consequences and cost the applicant’s actions have had for the respondent I am not satisfied that it was or should have been reasonably apparent to the applicant that her application had no reasonable prospect of success.

[37] That being the case my decision is that this application for costs to be ordered against the applicant will be dismissed.



Mr P Harris and Mr P Reid on behalf of the Respondent

Mrs L Dryden on her own behalf

Hearing details:



November 9.

 1   [2012] FWAFB 1093 at paragraph [15] - [21] & [2012] FWAFB 9415 at paragraph [4]

 2   [2011] FWAFB 4014.

 3   [1992] FCA 366

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