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[8]
[2026] FWCFB 4
General information, not legal advice.
Fair Work Commission (Full Bench)
2026-01-07
Original judgment source is linked above.
The Applicant submitted that the documents produced by order of the Commission supports his allegation that the Second Respondent acted in disregard for the duty of care owed to the Applicant, and contrary to his work health and safety obligations. The Applicant also points to the interim investigation report dated 22 October 2024 containing findings concerning the Third and Fourth Respondents who approved the termination of the Applicant's employment. None of these things were necessarily fatal to the Respondents' jurisdictional objection, and what was to be made of these matters always turned on disputes that needed to be tested.
[37] That paragraph appears to be a reference to Mr Roberts' costs application, and the submissions he made in support of it that referred to the second respondent's concessions in cross-examination, an investigator report of 22 October 2024 insofar as it related to the third respondent and text messages of 13 January 2025 between the fourth respondent (who was said to have approved the termination) and another person.
[38] As indicated above, the report and text messages appear to have been produced before, but not tendered during, the objection hearing. The lawyer for Mr Roberts had expressed an intention to deal with some of the produced documents during cross-examination, and tender them then, though as the objection was withdrawn that did not eventuate. Beyond that, there is nothing before us to suggest that there was any request from Mr Roberts to adduce additional evidence in support of the costs application. In the circumstances, all the Commissioner could take from these documents was that if the objection had not been withdrawn, they may have been put to the witnesses and may have been tendered.
[39] We accept the submission that the Commissioner's description of this material was not wholly accurate. The second sentence of paragraph [49] appears to conflate the contents of the interim investigation report and the text message communications produced by the first respondent. We do not accept that the misdescription indicates that the Commissioner did not read the documents or misunderstood the effect of the documents as a whole. In any event, the submission made on behalf of Mr Roberts focused on whether the respondents had grounds to contend that the fourth respondent should not have been named as a respondent to the application and whether the direction given on 8 January 2025 to return to work was unlawful or unreasonable. Those matters were not, in our view, necessarily determinative of the prospects of the jurisdictional objection.
[40] We do not accept the proposition that the Commission failed to properly consider whether the termination and jurisdictional objection were an attempt to evade conciliation of Mr Roberts' two previous applications. Ground 5, which advances this proposition, makes little sense in light of the nature of the two previous applications and in light of the task before the Commission in deciding the costs application. Ground 6 appears to be an expression of Mr Roberts' disagreement with the Commissioner's weighing of the matters that were taken into account. Ground 7 is not made out having regard to paragraphs 100 and 101 of Mr Roberts' witness statement of 7 March 2025, tendered and admitted as exhibit 1 in the objection hearing. With Mr Roberts clarifying in his outline of submissions and at the appeal hearing that he takes issue with the objection having been made, not with its withdrawal after the Commission expressed a provisional view, ground 9 takes the matter no further than the preceding grounds.
[41] It was, in our view, open to the Commissioner to find that it was arguable that Mr Roberts did not want to return to work and wanted to negotiate a settlement. This was consistent with the Commissioner's finding that the jurisdictional objection was arguable. The submissions made on behalf of Mr Roberts focus too closely on whether the direction given to Mr Roberts on 8 January 2025 to return to work was a lawful and reasonable direction. The jurisdictional objection advanced by the respondents relied on the assertion that the conduct of Mr Roberts generally from the time he commenced a period of medical leave on 20 September 2024 supported a conclusion that he did not want to return to work and intended to negotiate a settlement payment. When a wider view is taken of the circumstances, it was open to the Commissioner to conclude that the documents produced by the first respondent were not necessarily fatal to the respondents' jurisdictional objection.
[42] The Commissioner dealt with the issue of whether the respondents' jurisdictional objection had no reasonable prospect of success and with the contentions and evidence relied upon by Mr Roberts in support of the proposition that the respondents had acted unreasonably. We do not accept that the findings made by the Commissioner were not open to him. Grounds 1, 2, 3, 5, 6, 7 and 9 are not made out.
[43] As to ground 4, we accept that the Commission is obliged to afford the parties procedural fairness, and that this requires the Commission to make sure a party is given a reasonable opportunity to present their case.[10] What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise.[11] We accept that this means having regard to the provisions of the Act cited by the respondents in their submissions. Having regard to the statutory scheme, and the nature of the application (being an application for an order for costs), we do not consider that the Commissioner was obliged to conduct an oral hearing in order to afford procedural fairness in the circumstances of this matter.
[44] The Commissioner provided an opportunity for the parties to make written submissions, which they did. The initial correspondence conveying the directions did not indicate whether the application would be determined by way of an oral hearing or on the papers. The Commissioner could have directed, at that point, that the matter would be dealt with on the papers subject to further direction to the contrary, implicitly providing the parties with an opportunity to seek a direction to the contrary if they wished to do so. But the fact that the directions were silent on that point simply left the question open. The parties obviously took this as allowing them to express their views as to whether an oral hearing should be held, because they both did so. It is clear on the face of the correspondence that the Commission took their views into account before deciding that question.
[45] The decision to determine the costs application on the papers was open to the Commissioner. The Commissioner was able to have regard to the record and the parties' written materials. Determining the costs application did not require the Commissioner to decide the questions in issue in the now-withdrawn jurisdictional objection, only to consider whether there had been a reasonable basis for the objection to be made. Mr Roberts has not identified what matters he would have raised in a hearing of the costs application which were not contained in his written submissions on costs. At most, Mr Roberts submits that he "would have been able, more readily, to perceive any of the errors which adversely affected the Commissioner's approach to his application for costs". That submission does not, with respect, suggest that Mr Roberts was denied the opportunity to present any arguments he wished to advance.
[46] After the Commissioner decided to determine the application on the papers, Mr Roberts did not seek leave to file evidence, or to file further written submissions. He did not otherwise apply for further directions. Mr Roberts could have, but did not, seek to file further material in circumstances in which the application was being determined on the papers or reiterated the request that a hearing be conducted in relation to the costs application. In the circumstances, the decision to decide the matter on the papers rather than conduct an oral hearing did not result in a failure to afford procedural fairness.
[47] Ground 8 contends that the Commissioner failed to provide adequate reasons. We accept the respondents' submissions that reasons for a decision need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.[12] We consider the Commissioner's reasoning in respect of the application for an order for costs to be sufficiently articulated in the costs decision. Ground 8 is not made out.
Grounds 6 and 10 - Focus on conduct during hearing
[48] The appellant's outline of submissions clarified that grounds 6 and 10 were directed to the test under s 611 of the Act. Mr Roberts submitted that the Commissioner's primary focus in the costs decision had been the respondents' conduct during the hearing, and that the Commission ought to have focussed its enquiry on the respondents' conduct in instituting the jurisdictional objection in the first place. As will be apparent from the discussion above, we consider that this argument is not tenable in light of paragraphs [44] and [48] of the costs decision.
[49] We accept that if a respondent puts an applicant to the cost of defending a jurisdictional objection that was not reasonably arguable, that will enliven the discretion to make a costs order under either ss 375B(1) or 611(2) of the Act. Respondents should be mindful of this when deciding whether to raise jurisdictional objections. We also consider that parties should be encouraged to properly consider the provisional views expressed by a member of the Commission. Parties should be encouraged to withdraw a jurisdictional objection in such circumstances. The mere fact that a jurisdictional objection has been withdrawn does not necessitate the conclusion that the objection lacked reasonable prospects of success when made. In any event, in this case, the appeal grounds are not made out. Mr Roberts has not established that the Commissioner erred in the manner alleged.
[50] For the reasons set out above, we grant permission to appeal. However, in the absence of appealable error, this appeal must be dismissed. The Full Bench makes the following orders:
(a) Permission to appeal is granted; and
(b) The appeal is dismissed.
M Harmer, solicitor, of Harmers Workplace Lawyers for the appellant.
B Reed, of counsel, instructed by Ellem Warren Napa Lawyers for the respondents.
[3] See, in relation to s 611(2), Keep v Performance Automobiles Pty Ltd [2025] FWCFB 1956 at [16].
[4] Australian Workers Union v Leighton Contractors Pty Ltd (No 2) (2013) [2013] FCAFC 23; 232 FCR 428 at [8] (Dowsett, McKerracher and Katzmann JJ); Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14 at [11] (Rares, Flick and Jagot JJ); Dahdah v Platinum Distributors Australia Pty Ltd (Costs) [2023] FCAFC 102 at [31] (Rangiah, Goodman and McElwaine JJ).
[5] Ryan v Primesafe [2015] FCA 8 at [64] (Mortimer J).
[6] Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] (Bromberg J); Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] (Siopis, Collier and Katzmann JJ).
[7] Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810; (2014) 240 IR 377 at [27].
[8] In the sense discussed in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19]- [20] (Gleeson CJ, Gaudron and Hayne JJ).
[9] Re 4 Yearly Review of Modern Awards - Abandonment of Employment [2018] FWCFB 139; (2018) 273 IR 249 at [21]- [22].
[10] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [118]- [119] (Katzmann and Rangiah JJ) and the cases there cited.
[11] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [125] (Katzmann and Rangiah JJ) and the cases there cited.
[12] Relying on Linfox Armaguard Pty Ltd v Symes [2019] FWCFB 556 at [27], citing Barach v University of New South Wales [2010] FWAFB 3307; (2010) 194 IR 259 at [16].
Printed by authority of the Commonwealth Government Printer
Bevan Geoffrey Roberts
Quantum-Systems Pty Ltd and Others [2026] FWCFB 4
Appeal against decision [2025] FWC 1380 of Commissioner Simpson at Brisbane on 19 May 2025 in matter number C2025/820 - Jurisdictional objection made by the respondents on grounds that application was not dismissed - Jurisdictional objection withdrawn during hearing - Application for costs by the applicant - Nature of the power of the Commission to order the payment of costs under ss 375B and 611 of the Fair Work Act 2009 (Cth) - Whether the Commissioner failed to consider whether the jurisdictional objection was untenable from the outset - Whether the Commission failed to consider impact of documents produced by the respondents and of evidence given in cross-examination - Permission to appeal granted - Appeal dismissed.
[23] The power of the Commission to award costs under either ss 375B(1) or 611(2) involves a two-stage process. The Commission must first determine whether the power to award costs is enlivened on the basis that it is satisfied that a party caused costs to be incurred because of an unreasonable act or omission (in the case of s 375B(1)(b)) or that the application was made or responded to vexatiously or without reasonable cause or in circumstances in which it should have been reasonably apparent that the application, or the response, had no reasonable prospects of success (in the case of s 611(2)(a) and (b)).[3]
[24] If the power to order a person to pay costs does exist, the Commission is then required to consider whether it is appropriate in the circumstances to exercise the power to award costs. The use of the word "may" in both ss 375B(1) and 611(2) makes clear that the Commission retains a discretion as to whether to make an order for costs even if the circumstances permitting such an order to be made exist. In that respect, the power of the Commission to award costs mirrors the approach that has been adopted by the courts with respect to a limitation on the circumstances in which an order for costs can be made in s 570 of the Act.[4]
[25] It is relevant to record that the limitation placed on the discretion to award costs in proceedings under the Act, including in the Commission, serves an important purpose which informs its exercise. In Ryan v Primesafe [2015] FCA 8, Mortimer J (as her Honour then was) observed in relation to
[29] We will first deal with appeal grounds 1, 2, 3, 5, 7 and 9 together, as they go to related issues about the prospects of success of the respondents' jurisdictional objection, and the Commissioner's consideration of that issue in the costs decision. In summary, those grounds involve a contention that the Commissioner failed to consider whether the respondents' jurisdictional objection was hopeless from the outset and failed to take into account various matters or pieces of evidence said to establish that it was doomed to fail or otherwise improperly advanced.
[30] It was not in contest between the parties that it was open to the Commissioner, as the objection hearing proceeded, to form, and convey, a provisional view as to the likely determination and disposition of that objection during the hearing conducted in relation to it. We agree with the Commission at first instance that it is sensible for a party to withdraw an objection in the face of an adverse provisional view as to its prospects. A failure to withdraw in such circumstances could well militate in favour of an adverse costs order pursuant to s 375B, in the event the objection was determined consistently with the provisional view. At the appeal hearing, however, Mr Roberts made clear that he accepted that withdrawing the objection was not unreasonable, and that in his submission costs ought to have been ordered because the objection had been doomed from the outset.
[31] In Re 4 Yearly Review of Modern Awards - Abandonment of Employment [2018] FWCFB 139; (2018) 273 IR 249,the Full Bench made clear that "abandonment of employment" is an expression used to describe a situation in which an employee ceases to attend their place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. Where an employee abandons their employment, thereby renouncing their employment contract, the election by the employer to accept the repudiation terminates the employment contract but the abandonment terminates the employment relationship. In such a case, the acceptance of the employee's renunciation of the contract does not constitute a dismissal for the purposes of of the Act.
(2010) 194 IR 259
(2018) 273 IR 249
(2014) 240 IR 377
(2000) 203 CLR 194
[32] The evidence in this matter was that the first respondent had received a medical report from an independent medical examiner. The report stated, inter alia, that Mr Roberts was fit for work. It indicated that Mr Roberts' grievance be dealt with before he returned. The material also shows the first respondent had attempted to have an independent investigator deal with Mr Roberts' grievance, and that Mr Roberts appeared to have been unresponsive to the investigator's attempts to contact him. It also shows that the first respondent had directed Mr Roberts to return to work and that he had not done so. On the other hand, Mr Roberts had been vigorously pursuing his rights, raising issues in relation to safety and seeking adjustments. The material shows that the period in which the investigator had tried to contact him had coincided at least in part with his providing medical certificates, and with Christmas. It shows that the first respondent demanded Mr Roberts' return on short notice.
[33] It is not necessary for the Full Bench to determine whether Mr Roberts had in fact abandoned his employment. There were a range of facts and circumstances that would have been relevant to deciding the jurisdictional objection had it not been withdrawn. However, it was not necessary for the Commissioner, in deciding the costs application, to analyse or consider that material in detail. The Commissioner did not have to all but decide the objection in order to determine whether it had been arguable in the first place. Having regard to the circumstances it was, at least, arguable that Mr Roberts had abandoned his employment.
[34] We do not accept that the Commissioner failed to consider the contention that the respondents' jurisdictional objection had no reasonable prospects from the outset as contended in appeal ground 1(a). The summary of the submissions made on behalf of Mr Roberts provided by the Commissioner, particularly at paragraphs [25] and [26] of the costs decision, make clear that he understood the submission to be that it had been unreasonable for the respondents to have raised the jurisdictional objection in the first place. The reasoning of the Commissioner is admittedly brief but sufficiently demonstrates that he addressed that submission. In particular, the Commissioner concluded at paragraph [48] of the costs decision: