s.394 - Unfair dismissal

Heartlab Pty Ltd As Trustee For The Heartlab Trust Trading as The Cardiac Centre

Application for an unfair dismissal remedy - costs application under s.400A of the Fair Work Act - costs application made out of time - costs application dismissed

• [1] Ms Brooke Field (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation her dismissal by Heartlab Pty Ltd as Trustee For The Heartlab Trust Trading as The Cardiac Centre (the Respondent).

• [2] A decision was issued on 29 January 2025 finding that the dismissal was not unfair and the unfair dismissal application was dismissed.[1]

• [3] On Friday, 31 January 2025, the Respondent's representative advised my Chambers that they were instructed to make an application for costs. They requested that Directions be set down to hear the Costs Application. On Tuesday, 4 February 2025, my Chambers responded indicating that the Costs Applications needed to be made in the approved form, a Form F6.

• [4] On 13 February 2025, the Respondent's representative filed the Form F6 with the Commission registry for costs under s.400A of the Act. The costs application was therefore filed 15 days after the matter was determined. The Applicant opposes the costs application, as it is out of time.

• [5] Section 400A of the Act provides as follows:

(1) The Fair Work Commission may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the Fair Work Commission is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The Fair Work Commission may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the Fair Work Commission's power to order costs under section 611.

• [6] Section 402 of the Act provides:

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

• [7] Section 587 of the Act provides:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under s527F that does not consist solely of an application for a stop sexual harassment order on the ground that the application:

• [8] The Costs Application was filed on the fifteenth day after the Commission determined the matter and is therefore one day out of time. The Respondent argues that they had advised that they wished to make a costs application on 31 January 2025, two days after the decision was published.

• [9] Section 585 of the Act states that: "An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind". Sub-rule 9 of the Fair Work Commission Rules 2024 (the Rules) provides that where there is an approved form for a specific purpose, then the approved form must be used for that purpose. As prescribed in the Rules, the approved form for a Costs Application is a Form F6. This is the form which was provided to the Respondent to complete on 4 February 2025.

• [10] I will firstly deal with the issue of whether the email to Chambers on 31 January 2025 was an "application" which was "made" for the purposes of s.402 of the Act. I note that the Full Bench of the Commission has expressed doubt as to whether an email to Chambers can be, by itself, an application for the purposes of the Act.[2] In Brown v Coffs Harbour Support Services, the Full Bench dealt with the question of whether an email to the Commission's email address for general enquiries was a s.394 application "made" for the purposes of the Act.[3] The Full Bench concluded:

[30] The information contained in the Appellant's correspondence was very confined and did not provide sufficient substantive content to constitute, in substance, an application. The information was limited to the fact that the Appellant was attempting to make an unfair dismissal application, that he needed to do so within the 21-day timeframe, that "tomorrow night is the latest I can send this to you" and included his telephone number. The correspondence cannot be characterised as an incomplete or incorrect application for an unfair dismissal remedy. It did not identify the Respondent, did not particularise the basis for upon which the dismissal was alleged to be unfair, did not identify any remedy sought, and was therefore substantially deficient and devoid of meaningful content. Nor is there any evidence that the Appellant believed that what he had lodged was a valid application, or that his reliance on that belief explained the delay or that he was led to believe that he had filed a valid application because of action taken by the Commission in relation to his request for assistance or in the manner it dealt with his request.

• [11] The Full Bench's conclusions are apt in this matter. The Respondent's representative's email of 31 January 2025 is devoid of the necessary content to make it an application for the purpose of s.402. Most importantly, the email does not specify under which section of the Act the Respondent is applying for costs. Further, important information such as the schedule of costs is missing. Finally, the wording of the email makes plain that the email is not intended to be an application. The email states: "I am instructed to make an application for costs in respect of the attached Decision." This implies that the email is not the application, and the application is to follow.

• [12] I note that while the Commission has a general power to waive irregularities in application under section 586 of the Fair Work Act, there is no specific power under the Act to extend the timeframe to make a costs application. In that regard, I adopt the reasoning of Deputy President Kovacic in Riazati v Interactive Media Solutions Pty Ltd [2015] FWC 800 where it was stated:

[8] The wording in s.402 of the Act is unambiguous. An application for a costs order under s.611 of the Act must be made within 14 days after the Commission determines the matter or the matter has been discontinued.

[9] Section 402 can be contrasted with other sections of the Act which also require applicants to make particular applications within specified time frames such as s.366, s.394 and s.774. Each of these provisions states that an application under that section must be made within a specified number of days; or

"(b) within such further period as the FWC allows under subsection (2)."

[10] No similar provision allowing an extension of time to be granted is included in s.402. As such, there is no specific power for the Commission to allow a further period within which to make an application for an order for costs where that costs application has not been made within 14 days after the Commission determines the matter.

[11] Separately I am satisfied that there is no general power within the Act for the Commission to extend time for making an application such as this where the application has not been made in accordance with the statutory time limits.

• [13] For completeness, I note that s.586 of the Act cannot be used to cure an error of substance and cannot be used to fundamentally change the nature of the application.[4] Section 586 cannot be used to effectively grant parties are extension of time where the Act does not allow for the timeframe to be extended.

• [14] I am satisfied that there is no power to extend the timeframe within which to make a costs application under s.402 of the Act.

• [15] Further, I am satisfied that by notifying Chambers of its intention to make a costs application, the Respondent did not make an application for the purposes of s.402 of the Act.

• [16] Therefore, the costs application was made out of time and the Commission does not have jurisdiction to hear the application. The Application is dismissed.

[1] [2025] FWC 263

[2] Lockyear v Graeme Cox [2021] FWCFB 875 at [36] and [43].

[3] [2024] FWCFB 390 AT [26]-[30], referring to Hedger v The Trustee for Perrott Trust [2023] FWCFB 2321.

[4] Dirkis v Staffing and Office Solutions Pty Ltd T/A SOS Recruitment & Department of Veterans Affairs and Others [2021] FWCFB 3305 at [54], citing Ioannou v Northern Belting Serices Pty Ltd (2014) FWCFB 660 at [17],

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