JimRoy Pty Ltd (JimRoy) was successful on
Wednesday when the full bench of the AIRC confirmed that an
applicant, and her representative, Gary Dircks
(Dircks), were jointly and severably liable to pay
the former employer's party-party costs as a result of their
unreasonable conduct in an unfair dismissal claim against
The decision is a significant win for employers who may be the
subject of unfair dismissal claims where the former employee
decides to pursue a claim that has little prospects of success.
In this case, the applicant, Natasha Vukadinovic
(Vukadinovic), made an unfair dismissal claim
under the Workplace Relations Act after her employment was
terminated for lying about the death of her mother and father and
seeking compassionate leave as a result of those asserted
Her representative, Dircks, with whom Vukadinovic had entered
into a contingency fee agreement, continued to seek a financial
settlement of her claim even after Dircks acknowledged to Deacons
Partner Stuart Kollmorgen that he could not dispute that
Vukadinovic had lied about her parents' death in order to
obtain the compassionate leave, and that, in any event, his
argument would be that honesty was not "a requirement of her
As a result of Dircks' continuing to pursue the claim JimRoy
was forced to prepare for hearing, incurring uncessary costs, when
first Dircks and then shortly afterwards Vukadanovic eventually
withdrew from the proceedings.
The full bench confirmed the findings made by Commissioner
Tolley, at first instance, that:
"The application had no
chance of success and Mr. Dircks' dragging out of the matter
and his continual attempts to extract monies from the employer were
wrong actions in the face of the knowledge he had of the
The Commission did however state that these findings should have
been confined to a shorter period than what was decided at first
instance. In doing so, it upheld Dircks' appeal and varied
Commissioner Tolley's order to limit Dircks' liability for
costs to this shorter period.
The Full bench made it clear that Mr Dircks had an obligation to
take immediate steps to ensure the application went no further once
he became aware that it was bound to fail, however, "during
that period he sought to exercise what leverage he could to extract
a payment from the respondent". On this basis Dircks'
conduct was within the concept of an "unreasonable act or
omission" contained in section 658(4)(b) of the Workplace
In making its decision the full bench upheld Dircks' appeal
and varied Commissioner Tolley's order to limit his liability
for costs to a shorter period than what was decided at first
This is a significant decision, putting Applicants and their
representatives on notice that unreasonable claims of unfair
dismissal, made for the purposes of extracting settlement monies
from former employers can come at a very high personal cost.
Deacons acted for JimRoy Pty Ltd in this case.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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