The Fair Work Commission has recently made an order requiring an employee who filed an unfair dismissal claim against his former employer “without reasonable cause” to pay the employer’s legal costs of $18,618.31.
In Green v Toll Holdings Pty Ltd (2015 / 8793), the employee tested positive at work for drugs in his system after giving an oral fluid sample. The employee then immediately visited his medical practitioner, who took a urine sample from the employee which was sent for testing. The test apparently returned a negative result, showing no traces of any drugs detected in the urine sample tested. Despite showing this document to his employer, the employer nevertheless dismissed the employee.
In fact, and unknown to the employer at the time of the dismissal, the employee’s urine test results had tested POSITIVE, and the employee had manipulated the test result document so that it would indicate that he had tested NEGATIVE.
The employee filed an unfair dismissal claim against the employer, and he tendered a witness statement maintaining that his urine sample had tested negative, and he attached the doctored urine test result to that statement.
At the hearing, the employer called the employee’s medical practitioner as a witness to give testimony that the urine test result document tendered by the employee was not the same document that the medical practitioner had previously given to the employee. Before the medical practitioner completed giving his oral evidence on the witness stand, the employee left the courtroom and did not return. After a short adjournment, the employee’s representative advised that he had instructions from the employee to discontinue the unfair dismissal matter.
The employer then made an application to recover its legal costs from the employee. The employee failed to file any evidence or submissions in relation to the employer’s costs application, nor did he attend any of the Commission hearings.
As part of the employer’s cost application against the employee, the Commission held as follows:
1. The employee knowingly and deliberately attached a drug test result to his witness statement which he knew to be false, and that he knowingly and deliberately gave false evidence under oath during the hearing about the drug test facilitated by the medical practitioner and its result;
2. The employee’s lie was so central to his unfair dismissal application, that when it was uncovered as a lie during the proceedings, the case crumbled and the employee “did a runner”, leaving his representative to clean up the mess and discontinue the proceeding;
3. Given the above, the employee had no reasonable cause to make his unfair dismissal appication, and it should have been apparent to the employee that his application had no reasonable prospect of success;
4. The unfair dismissal application was also “vexatious”, and it was seriously and unfairly burdensome upon the employer, who was required to respond to an application that was wholly based on a lie and fabricated evidence.
The Commission established that the employer’s total legal costs and expert witness disbursements were in the amount of $18,618.31, and an order was made against the employee that he pay this amount to the employer.
