Fair Work Australia (FWA) recently had to determine whether an aggrieved employee had the requisite 6 months' continuous employment to bring a claim for unfair dismissal under the Fair Work Act 2009 s.394.
In Naeem Zaman v Foxy Four Pty Ltd t/as Fernwood Fitness Tuggeranong, the applicant had been employed by the respondent from February 2011 to take fitness classes. The issue was whether he had resigned on 31 August 2011 (as the Respondent maintained) and been re-engaged in December 2011 or whether (as the Applicant alleged) he had continued to work there, albeit having handed over his classes temporarily to someone else "whilst a faulty microphone was fixed".
The evidence revealed that not only had the applicant verbally resigned on 31 August but that he had also attended his own leaving party in September at which he was presented with a DVD. He sought to dismiss this evidence, saying that he thought that the party was for two other departing (female) employees who were both given flowers. Asked what he thought the DVD was for, he replied that he did not know but did not consider it a farewell gift as he was not given flowers. When it was suggested that this might be because the recipients were female, the applicant responded that he himself would have appreciated flowers.
In his determination to succeed, the applicant also tried to produce false evidence to show that he had taken classes during the break in his employment. Not surprisingly, his credibility suffered badly and his claim failed.
Dubious unfair dismissal claims are nothing new but situations such as this, which would in most other courts lead to costs consequences for the loser, beg the question whether it is fair for employers in such circumstances to bear the financial burden of defending (and defeating) such claims.
Section 570 (2) (a) and (b) permits an order for costs "if the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause or... that the party's unreasonable act or omission caused the other party to incur the costs" (author's emphasis). Although seldom used, it is worth employers bearing these provisions in mind when faced with potentially spurious claims.
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