Fair Work Commission|2025-09-19

Mr Jyothi Sravan Kumar Katta v Catholic Archdiocese of Canberra and Goulburn Education Limited, Mr Michael De Raadt, Mr Steve Wilde [2025] FWC 2810 (19 September 2025)

The attached document replaces the document previously issued with the above code on 19 September 2025.

The decision has been amended to correct a typographical error in paragraph [67].

s.365 - Application to deal with contraventions involving dismissal

Catholic Archdiocese of Canberra and Goulburn Education Limited, Mr Michael De Raadt, Mr Steve Wilde

Application to deal with contraventions involving dismissal - Application for costs

[1] Jyothi Sravan Kumar Katta (Mr Katta) lodged a 'General protections dismissal Form F8' (Form F8) with the Fair Work Commission (Commission) seeking that the Commission deal with a general protections dispute that Mr Katta alleged involved dismissal under Part 3-1 of the Fair Work Act 2009 (Cth)(Act). The respondents were the Catholic Archdiocese of Canberra and Goulburn Education Limited (Employer), Mr Michael De Raadt (Mr Raddt) and Mr Steve Wilde (Mr Wilde) (together Respondents).

[2] This decision deals with an application for costs arising in respect of the general protections application made by Mr Katta.

[3] The Form F8 was lodged on 12 November 2024 prior to the date on which Mr Katta stated he had been dismissed in his application, being 6 December 2024, suggesting the alleged dismissal had not taken effect when the application was made. In the Form F8 Mr Katta did however allege that he was told about being dismissed but did not know the exact date. In the Form F8 Mr Katta stated: "My hours are reduced from 5days to 3days then all the work stops at December 6th 2024".

[4] The Employer objected to the application on the basis that Mr Katta was not dismissed within the meaning of s.386 of the Act. More specifically, the Employer indicated in its response to the application that:

Mr Katta was employed as a casual, received casual loading and had the ability to reject work offered to him and he did so.
The Employer had regular discussions with Mr Katta regarding shift allocation.
On 8 November the Employer discussed with Mr Katta the shifts available in the week commencing 18 November 2024 until 6 December 2024 and Mr Katta was offered shifts three days per week.
Mr Katta was made aware that there would not be shifts available of the kind that Mr Katta usually performed in the Employer's business post 6 December 2025, and during school holidays in which there was a significant reduction in helpdesk support requirements, but when the new school year commenced additional shifts may be made available and offered to Mr Katta.
On 19 November 2024 Mr Katta advised the Employer that he was not available for shifts between 20 and 22 November 2024.
On 26 November 2024 the Employer discussed with Mr Katta that shifts between 27 November 2024 and 6 December 2024 were not required as workload had reduced and Mr Katta advised he would not have been available for these shifts in any case due to a medical condition.
The Employer would offer Mr Katta casual shifts as they are available and as confirmed with Mr Katta in the new school year.

[5] Attached to the Respondents' Form F8A response was an email from Mr Wilde to Mr Katta dated 8 November 2024 and which stated:

Thank you for meeting with me today, Friday 8 November 2024.

Following on from our conversation, I'm writing to confirm our discussion today that as the students graduate and leave the College, initially the Year 11 and 12 cohort, there will be a reduction in the work for the IT team. In line with this, the College will not require you for as many casual shifts as you are on now.

I wanted to give you advance notice that your casual shifts will reduce from 5 days per week to 3 days per week commencing from week 6 until Friday 6 December 2024 when the requirement for casual shifts will cease for 2024.

I confirmed with you that we will require your services for three days per week from Wednesday 20 November to Friday 22 November, from Wednesday 27 November to Friday 29 November and from Wednesday 4 December to Friday 6 December 2024.

Thank you for assisting the College through a very busy time this year as we managed a large workload and embedded new systems. Should the College require your services in 2025, Michael will be in touch with you."

[6] On 10 November 2024 Mr Katta replied:

Apologies, i am giving you a proper reply after taking some time.

Firstly, I am totally confused on why my work hours are reduced and will be continue after December 6?

I continued working with Mackillop as an ongoing casual on the agreement that my position will be permanent once my residency application is processed.

Secondly it seems like a retaliation towards me for insisting to action on [colleague], for calling my sister a [name] etc...

Finally, it is not fair to treat people like this at a school that believes in faith. As a human being, it hurts bad to get punished when I did the right thing by speaking op. Furthermore, I am always truly grateful to you for providing me with the opportunity.

I'm happy to meet up and answer any questions, sorry again that I didn't give you full response on Friday due to me being in the shock and panicked after listening to you."

[7] A further email from Mr Wilde dated 11 November 2025 was filed with the Respondents' Form F8A and states:

As we discussed in the meeting on Friday, as the students graduate and leave the College there will be a reduction in the work for the IT team and consequently the College will not require you for as many casual shifts as you are working now.

In relation to your employment contract, your role at the College is as a casual non-ongoing employee, and there is no such thing as a permanent casual. You may recall from our meeting in my office in July, that I explained that your role was casual and that there was a limited budget that would be fully expanded this year.

You are welcome to apply for any advertised permanent IT positions at the College in future.

The College, and CECG, takes complaints seriously, and as is you're right, you are able to submit a complaint without any retaliation action. This was the case with your complaint about [colleague], and this is not a response to your complaint. As [colleague] resigned and left as the investigation commenced, we were not able to finalise an outcome with him.

Should the College require your services in 2025 then Michael de Raadt my contact you to discuss casual shifts, however, as discussed on Friday, your casual shifts for 2024 will conclude on Friday 6 December 2024".

[8] A further email chain between Mr Katta and Mr Wilde was filed with the Respondent's Form F8. An email from Mr Wilde to Mr Katta dated 19 November 2024 states:

Michael Lee would like to meet with you tomorrow morning at 11:15 in his office at the Padua campus. Steve Nadudvary from Catholic education will be attending the meeting with Michael.

This meeting is discussed your employment and you are invited to bring a support person with you."

[9] Mr Katta replied to the email that evening stating:

I won't be able to make it to the meeting tomorrow, I have a medical follow up with the surgeon regarding the fractures in my face.

Also, I won't be able to make it to the work this week, letting you know if in case this meeting is a discussion to notify me of no further employment.

[10] An email from Mr Wilde dated 26 November 2024states:

Thank you for your most recent claim in ESS for the casual shifts ending on Friday 15 November 2024. This has been approved and submitted to payroll.

In your absence last week, the College did not require any additional staffing to work on the help desk at the Padua Campus. In addition to this, as this is the last day for the year 10 students, the workload for IT will be reducing further. As a consequence of this significant reduction in the IT workload, there are no further requirements for any casual support from you for this year. The College will not require you for any further shifts this year. Notwithstanding the notice requirement in the Enterprise Agreement for casual staff, the College feels that this is short notice and we will pay you for the Wednesday 27 November 2024 and Thursday 28 November 2024 shifts. These hours have been added to the current pay cycle.

[11] Ms Katta responded to the email the same day stating:

Not that i am agreeing to this change, I want to let you know that i am not in a position to attend the work due to the fractures to my face and still receiving treatment.

Furthermore, I regret to inform you that i couldn't meet up with Steve Nadudvary, and Michael Lee due to my health condition last week.

However, if Michael Lee still like to meet with me in future, then I am more than happy to attend the meeting."

[12] Directions were set down by the Commission to deal with the jurisdictional objection that Mr Katta had not been dismissed. The Respondents, via their legal representative, filed brief submissions in accordance with the Directions together with a witness statement of Mr Wilde, the Employer's Business Manager.

[13] By way of summary, the Respondents set out the relevant case law and legislation dealing with dismissal and submitted that the email of Mr Wilde dated 8 November 2024 and circumstances as outlined in Mr Wilde's statement mean that the Commission would not be satisfied that Mr Katta employment was brought to an end because:

There were genuine operational reasons for not requiring Mr Katta's casual engagement during the Christmas and new year break.
Mr Katta remained a recognised employee within the payroll system.
Mr Katta retained access to systems, including employee self service, an Employer email address, electronic locking system and various administrative systems for his access to casual IT duties.
There had been no change to any physical or system access since Mr Katta's last casual shift.

even if the 8 November email had the probable result of ending Mr Katta's employment, it did not do so because Mr Katta's casual employment came to an end in accordance with the usual position that employment ended at the end of each engagement;
there was no positive action by Mr Wilde (or otherwise by the other Respondents) which brought Mr Katta's employment to an end.

[15] Mr Wilde's statement indicated, by way of summary that:

Mr Katta was employed as a casual staff member in the IT team, mainly working on the helpdesk;
helpdesk workload and duties vary based on staff and student attendance as the year progresses;
in the period between 8 March 2024 and 29 November 2024 the days worked each fortnight by Mr Katta were as set out in the table below. This suggests an average of 8.5 days per fortnight over a period exceeding seven months.

[16] Mr Wilde's statement indicates that:

he had a meeting with Mr Katta on 8 November 2024 to discuss the likely reduction in Mr Katta's casual hours due to students leaving the College at the end of the year and a reduced requirement for IT helpdesk services;
he sent the 8 November email;
on 10 November 2024 Mr Katta responded via email, as set out earlier in this decision;
on 26 November 2024 he wrote to Mr Katta to inform him that the Employer did not require him for further casual shifts for the balance of 2024, notwithstanding an original expectation that he would be required to work until 6 December 2024;
that decision arose because there was no need to engage any additional staffing due to a reduction in workload;
Mr Katta remained recognised as an employee within the Employer's payroll system and retained access to the Employer's systems.

[17] On 16 January 2025 Mr Katta emailed the Commission indicating that he required more time to file his material due to his mental health and requesting that the Respondents provide a copy of an investigation report concerning allegations Mr Katta had raised. The Commission emailed Mr Katta on the morning of 17 January 2025 seeking clarification as to the duration of the extension he was seeking and seeking that he file a Form F52 application if he wanted the Commission to order production of documents.

[18] Mr Katta did not respond to the Commission's email of 17 January 2025 by the time required and on 20 January 2025 the Commission wrote to Mr Katta seeking that he indicate the duration of the extension of time sought, when he proposed to file his materials and whether he would be making an application for orders for production. Mr Katta responded that day seeking an extension of a further 10 days to enable him to file materials on 2 February 2025. As the hearing had been set for 28 January 2025, Mr Katta expressed an understanding that this would conflict with the hearing date. Mr Katta also indicated that he was seeking legal assistance in respect of the Form F52 application and material he proposed to file and would submit a Form F52 by 22 January 2025.

[19] On 22 January 2025 the Respondents wrote to the Commission requesting that the matter be dismissed for want of prosecution. Mr Katta responded the same day indicating that his mental health had been significantly affected and that he was willing to provide a medical certificate. Mr Katta also emailed the Commission indicating that a Form F52 application was attached however there was no attachment to the email.

[20] On 22 January 2025 the Commission responded to the emails of the Respondents and Mr Katta that had been sent that day, noting that the hearing had been listed for 28 January 2025 and directing that Mr Katta file, by 2pm the following day any evidence that he wished to rely on in respect of his request for an extension of time to file his materials until 2 February 2024. The email also indicated that Mr Katta's Form F52 had been omitted from the email and sought that he provide it, which Mr Katta subsequently did.

[21] The matter was listed for conference on 24 January 2025 to determine:

whether Mr Katta's request for an extension of time should be granted and, if so, what amendments would be made to the directions; and
the Form F52 application.

[22] Mr Katta did not attend the case management conference despite having been provided with the notice of listing and the Commission attempting to call Mr Katta twice during the conference.

[23] The Respondents then wrote to Chambers indicating that they pressed its application for the matter to be dismissed for want of prosecution and seeking that the matter be relisted for conference on 31 January 2025 to determine that application.

[24] On 28 January 2025 Mr Katta filed a copy of a medical certificate indicating that he was unfit for work on 24 January 2024, being the day of the conference.

[25] The matter was listed for case conference on 31 January 2025 and the Respondents also filed a copy of their response to the Form F52 that day.

[26] On 31 January 2025 the Respondents wrote to Chambers indicating that they had been alerted to correspondence from the Commission's registry that Mr Katta had made a separate application for casual conversion.

[27] When the casual conversion application was raised with Mr Katta during the conference on 31 January 2025 Mr Katta indicated his position was that the was still employed by the Employer. When I pointed out the obvious problem with this in circumstances where an applicant needs to have been dismissed in order for an application under s.365 to have been made, Mr Katta discontinued the application orally.

[28] The Employer subsequently made an application for costs. The parties filed submissions across April and May and consented to the matter being determined on the papers.

[29] The Employer submitted its costs were incurred:

because of Mr Katta's unreasonable act of continuing to pursue his general protections application in circumstances where:
- he was aware from 28 November 2025, when the Form F8 Response was filed- that the Employer disputed that Mr Katta was dismissed from his employment;
- he ultimately discontinued the substantive proceedings on 31 January 2025 after confirming that he was not dismissed and was instead pursuing a casual conversion dispute with the Commission on the basis that he was still employed;
because of Mr Katta's unreasonable acts in failing to copy the Respondents into communications with the Commission;
in circumstances where it should have been reasonably apparent to Mr Katta that the general protections application had no reasonable prospects of success.

[30] The Employer submitted that in exercising its discretion to make a costs order, the Commission must:

(a) first be satisfied the circumstances fit within an exception that enlivens a discretion to make the costs order under the Act; and

(b) then determine whether the requisite satisfaction has been reached such that it is appropriate to exercise that discretion in the circumstances.[1]

[31] The Employer noted that although the discretion is used sparingly, instructive cases in which costs have been awarded against a party include:

• Montero v Club Holdings Pty Ltd[2] in which the Commission ordered an employee pay the former employers costs totalling $1815 after the Commission found it should have been reasonably apparent to the employee from 25 September 2020, midway through the matter and after the employers evidence had been filed, that her application for relief from unfair dismissal had no reasonable prospect of success;
• Chapman v Ignis Labs Pty Ltd[3] in which a Full Bench of the Commission confirmed that a party being self-represented does not preclude an application for costs in Commission proceedings being made against them; and
• Cremona (formerly trading and Frooty Fresh v Lane[4] in which:
- an employer objected to the unfair dismissal application on the basis that it was frivolous and vexatious but did not attend the hearing and did not provide an acceptable reason for his absence;
- the matter was decided in the employer's absence in the employee's favour;
- the employer appealed the decision;
- the appeal was dismissed;
- costs were granted in relation to the appeal which was found to be without merit and manifestly untenable.

[32] The Employer submitted that Mr Katta was, or at least should have been, aware that from 28 November 2024 the jurisdictional fact that he had been dismissed, was disputed but nonetheless proceeded to progress the application.

[33] The Employer also submitted that the issue of whether Mr Katta was dismissed was a "critical and simple jurisdictional fact" that "did not require complex consideration of the circumstances or legal advice to determine" and that Mr Katta's disregard of this rendered the continuation of the proceedings from 28 November 2024 manifestly untenable.

[34] The Employer also noted that instead, Mr Katta continued to pursue his claim and:

failed to comply with the Commission's timetable to file his evidence without prior notice and without supporting evidence of his claim of mental incapacity;
proceeded to apply for an order for the production of a list of 28 categories of documents on 22 January 2025;
failed to appear at a case management conference on 24 January 2025 without explanation;
sought to file a concurrent dispute with the Commission to deal with the casual conversion dispute on 29 January 2025 despite claiming he was incapable of complying with the Commission's previously set timetable for filing his evidence.

[35] Mr Katta submitted, by way of summary:

Mr Wilde did not communicate with him about his casual shifts until 6 November 2025, stating that his employment was only available due to extra workload;
he believed Mr Wilde retaliated against him after he enquired about a permanent position that had been promised;
he was assigned a project to complete independently and Mr Wilde had not had numerous communications with him regarding shift allocations;
he was led to believe that his position would become permanent once his permanent residency application was approved;
due to bullying he filed a complaint, his concerns were dismissed and he was warned of retaliation;
on 6 November Mr Wilde informed him that from 20 November he would only be allocated three days of work per week with his employment set to end on 6 December, and after confronting Mr Wilde his end date was brought forward to 27 November;
his employment was halted while he was still working on the assigned project;
when he contacted human resources regarding his concerns, he was advised to find another job and accused of inappropriate behaviour toward the Employer's Principal;
due to misleading actions, retaliation and sudden changes to his employment he was led to believe his role had been dismissed with no possibility of future employment and made his application as a result;
as the Employer argued that his employment was ongoing and confirmed he had not been dismissed, he applied for a dispute in relation to casual conversion on 29 January and withdrew the general protections application at the next available opportunity on 31 January 2025.

[36] Mr Katta also submitted he had a medical condition which the Employer was aware of and that:

on 29 November 2025 he sent a workplace injury document to Mr Wilde and Human Resources;
an independent medical evaluation conducted by the Employer's insurer diagnosed him with Post-Traumatic Stress Disorder;
he did not attend the conference due to a medical reason and provided a medical certificate.

during the case management conference Mr Katta's legal representative informed both the Commission and Mr Katta that due to the complexity of the matter they would be engaging legal representation and the Employer is therefore aware that the matter extends beyond a simple dismissal;
he agreed to the Respondents having legal representation as a gesture of goodwill to resolve the matter efficiently however the situation did not unfold as expected;
the starting position in the Act is that each party bears their own costs;
the Respondents elected to be legally represented knowing it is a no costs jurisdiction and instructed legal representatives at their own risk;
he has a disability and did not have the benefit of legal representation;
the law with respect to termination in casual employment is complex, Mr Katta was a lay person and was entitled to bring the application in circumstances where the employer cased to offer him work;
there is no decision in respect of the application he made;
as the Respondents argued that his employment was ongoing he was entitled to ventilate a casual conversion dispute;
in the rare event that the Commission makes costs orders it does so with reference to schedule 3.1 of the Fair Work Regulations 2009 (Cth)(Regulations) and the costs sought are oppressive and exceed the prescribed amounts under schedule 3.1.

objected to any reliance placed on a medical report that Mr Katta did not wish to provide to the Employer;
submitted that the matters raised by Mr Katta as to his reasons for initially commencing the general protections application were not relevant;
submitted that the Employer brought the application based on Mr Katta continuing to pursue the general protections application in circumstances where the issue of whether he was dismissed was squarely contested;
submitted that Mr Katta does not otherwise concede the factual accuracy of the matters raised in the Employer's submissions;
submitted that the Employer only seeks costs consistent with the limits set out in the Act and Regulations and to the extent that items claimed exceed schedule 3.1 of the Regulations, the Employer would only seek the prescribed amount for that item.

[39] Section 375B(1) of the Act provides that the Commission may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

(a) an application for the Commission to deal with the dispute has been made under s.365; and

(b) the 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 dispute.

[40] Section 375B(3) provides that s.375B does not limit the Commission's general power to order costs under s.611 which provides:

(1) A person must bear the person's own cost in relation to a matter before the Commission.

(2) However, the Commission may order a person (first person) to bear some or all of the costs of another person in relation to an application to the Commission if:

(a) the Commission is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the Commission is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

[41] Mr Katta made an application for the Commission to deal with a general protections dispute that he alleged involved dismissal. As noted above, s.611 of the Act sets out the general provisions dealing with when the Commission may order costs. Costs may be ordered if the Commission is satisfied that Mr Katta made the application vexatiously or without reasonable cause or if it should have been reasonably apparent to Mr Katta that his application had no reasonable prospects of success.

[42] In Nilsen v Loyal Orange Trust North J said the question as to whether a proceeding was instituted vexatiously looks to the motive of the applicant and that a "proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage."[5] Noting that the ground that an application has been made "vexatiously" is an alternative ground to the ground based on lack of reasonable cause, the ground may apply where there is a reasonable basis for instituting the proceeding.[6]

[43] In General Steel Industries Inc v Commissioner for Railways (NSW) the High Court found that the test of 'without reasonable cause' has variously been expressed as:

"so obviously untenable that it cannot possibly succeed";
"manifestly groundless";
"so manifestly faulty that it does not admit of argument";
"discloses a case which the Court is satisfied cannot succeed";

• "under no possibility can there be a good cause of action". [7]

[44] In Kanan v Australian Postal and Telecommunications Union, Wilcox J said:

"It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the preceding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear the proceeding must fail, it may properly be said that the preceding lacks a reasonable cause."[8]

[45] As to the question of whether it should have been reasonably apparent that an application had no reasonable prospects of success, in Qantas Airways Limited v Carter the Full Bench found that "should have been reasonably apparent" imports an objective test, directed to a belief formed on an objective basis rather than a subjective test.[9]

[46] Without limiting the Commission's power to order costs under s.611, s.375B sets out the circumstances in which that the Commission may order costs in general protections matters. In this matter the Commission may order costs if Mr Katta caused the Employer to incur costs because of an unreasonable act or omission in connection with his conduct or continuation of the dispute.

[47] In respect of s.375B, the revised Fair Work Amendment Bill 2013 states:

'232. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.

233. The FWC's power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission.

234. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.

235. New subsection 375B(2) provides that the power to award costs against one party in these circumstances is only exercisable if the other party to the dispute makes an application in accordance with section 377. New subsection 375B(3) makes it clear that the new power to award costs under subsection 375B(1) operates in addition to subsection 611(2), which enables the FWC to make costs orders against a person in certain circumstances, such as where an application is made vexatiously or without reasonable cause.'

[48] I accept that disputes concerning whether a casual employee has been dismissed are generally complex. In Mr Katta's case, he had been working an average of 8.5 days per fortnight over a period of over seven months and in November was told that his services for the balance of the 2024 school year were not required. At this stage Mr Katta had not yet worked for the Employer during a period that coincided with the end of a school year, and it seems likely that the end of the school year and fewer students would result in less work. However, Mr Katta was also told:

on 8 November 2024, "should the college require your services in 2025, Michael will be in touch with you"; and
on 26 November 2024,"Should the College require your services in 2025, Michael or I will be in touch with you".

[49] Neither of these statements instil a sense of certainty that further work will be provided. Mr Katta also alleged that he had previously made a complaint about a colleague. In certain circumstances, ceasing to provide work to a casual employee may give rise to an arguable case that the employee has been dismissed and each case will turn on its specific facts. The difficulty for a casual employee is that it may not be clear as to what the intentions of the employer are at the point in which the employer stops giving them work. While it could be argued that Mr Katta may have acted prematurely in making his application and that it may have been open to him to wait and see what transpired in 2025, the complication in general protections applications involving dismissal is that an application must generally be made within 21 days after the dismissal took effect. It may not always be clear on the facts as to when a dismissal took effect if a dismissal is not committed communicated in clear and certain terms. If there has been a dismissal, but a dismissal application has been made prior to the date on which that dismissal took effect, a further question may arise concerning what should be done about the application in those circumstances and it may not automatically follow that the application is dismissed.[10]

[50] Having worked on a regular basis across a period of seven months and having received communications casting doubt on the continuation of work in the future in circumstances where Mr Katta alleges he had earlier made a complaint about a colleague, Mr Katta has decided to make a general protections application alleging dismissal. In these circumstances I find that the application was not made for the predominant purpose in instituting the proceeding is to harass or embarrass the Employer, or to gain a "collateral advantage", [11] that the application was not made vexatiously and the application was not made without reasonable cause. Rather, there was a real question to be determined as to whether Mr Katta's employment with the Employer was terminated on the Employer's initiative, and it was not clear that the application was bound to fail.

[51] In circumstances where Mr Katta has been working regularly over a period in excess of seven months, receives communications casting doubt on whether work would be provided in the future, and alleges that these communications followed a complaint about a colleague, I am also unable to conclude that it should have been reasonably apparent to Mr Katta that his application had no reasonable prospects of success.

[52] As Mr Katta made his application under s.365, a further question to consider is whether Commission is satisfied that the Mr Katta caused the Employer to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the dispute.

[53] Directions in the matter were set down and the Employer filed its materials concerning the objection first. I consider that it was reasonable for the Mr Katta to continue his application at this point. It was also reasonable for Mr Katta to consider the Respondent's submissions and evidence about why it said it had not dismissed him before deciding how to respond and whether to proceed.

[54] However, the directions required that Mr Katta file his materials about this by 14 January 2025 and he did not do so. On 16 January 2025 Mr Katta requested an extension of time but did not indicate the duration of the extension sought or provide evidence supporting the need for an extension. The Commission emailed Mr Katta on the morning of 17 January seeking clarification as to the duration of the extension he was seeking and requested that he file a Form F52 application if he was seeking orders for production. Mr Katta did not respond to the Commission's email of 17 January 2025 and on 20 January 2025 the Commission wrote to Mr Katta seeking that he indicate the duration of the extension of time sought, when he proposed to file his materials and whether he would be making an application for orders for production. Mr Katta responded that day seeking an extension of a further 10 days which would enable him to file materials on 2 February 2025. As the hearing had been set for 28 January 2025, Mr Katta expressed an understanding that this would conflict with the hearing date. Mr Katta also indicated that he was seeking legal assistance in respect of the Form F52 application and material he proposed to file and would submit a Form F52 by 22 January 2025.

failed to file his submissions without seeking an extension of time prior to the filing deadline and without providing evidence of his reasons for non-compliance; and
failed to respond to the Commission's email of 17 January 2025 by the time required;
sent an email to the Commission on 22 January 2025 indicating that his mental health had been significantly affected and that he was willing to provide a medical certificate (although he did not do so at this stage);
sent an email to the Commission on 22 January 2025 indicating that Form F52 application was attached however there was no attachment to the email, causing the Commission to follow up on the missing attachment.

[56] All of these actions caused inconvenience to the Commission and the first two omissions were, in my opinion, unreasonable. However, despite Mr Katta's non-compliance at this stage, a response was not required of the Respondents while the Commission wrangled with the inconvenience caused by the non-compliance. Notwithstanding this, on 22 January 2025 the Respondents wrote to Chambers requesting that the matter be dismissed for want of prosecution. Mr Katta also filed his Form F52 on 22 January 2025. The Commission then proceeded to hold a conference to deal with both matters on 24 January 2025.

[57] However, Mr Katta did not attend the conference despite having been provided with the notice of listing and the Commission attempting to call Mr Katta twice during the conference. While Mr Katta provided a medical certificate indicating he was unfit for work on the day of the conference, it does not state that Mr Katta's condition was such that he was unable to participate in a conference before the Commission or, importantly, notify the Commission of his inability to attend the conference in advance of the conference so as to minimise any inconvenience caused to the Respondents or Commission. While Mr Katta appears to suggest a mental health issue that has impacted the way in which he participated in the proceedings, on 22 January 2025 he was able to submit a Form F52 application, on 29 January 2025 he was still able to make a new application to the Commission in respect of his casual conversion dispute, and there was no evidence suggesting he was incapable of at least corresponding with the Commission about his ability to attend a conference in the intervening period.

[58] The Respondents communicated that they continued to press their application to dismiss the matter and the matter was again listed for conference on 31 January 2025. The Respondents filed a copy of their response to the Form F52 that day. It was at that conference that Mr Katta conceded he had not been dismissed and communicated that he discontinued the application. It is likely that he did so having considered the Respondents' firm position that it had not dismissed him and given his decision make an application for the Commission to deal with a dispute to have his employment converted from casual employment to permanent employment.

[59] While I am not persuaded that the continuation of the matter was unreasonable up until this point, in the above circumstances I consider that Mr Katta acted unreasonably in the conduct of the matter by:

failing to file his submissions without seeking an extension of time prior to the filing deadline and without providing evidence of his reasons for non-compliance;
failing to respond to the Commission's follow up email of 17 January 2025 by the time required;
failing to attend the conference on 24 January 2025 or to provide advanced notice of his inability to attend.

[60] These unreasonable acts or omissions by Mr Katta caused the Employer to incur the following costs:

$992 incurred on 22 January 2025 in respect of "Communications by email with Steve Nadudvary regarding the Applicant's delay in filing materials and recommended next steps. Consider provisions in authorities on dismissal of general protections proceedings for wanted prosecution. Email to Commission seeking dismissal proceedings."
$868 incurred on 24 January 2025 in respect of "Preparation for and attendance before the Fair Work Commission for case management conference. Post-conference debrief with Steve Nadudvary. Email to Commission following conference to confirm instructions to proceed with dismissal application".
The component of $496 incurred on 28 January 2025 that relates to "Communications by email from the Applicant's regarding non attendance at CML. Email to client regarding the same approach for Friday's conference".
The component of $620 that relates to preparation for the further conference on 30 January 2025.

[61] As such, I find that the Commission has the power to award costs. The next step is to consider whether to exercise the discretion to award costs. As submitted by the Employer this involves consideration of whether, in all of the circumstances, an order for costs is appropriate.[12]

[62] The Employer put forward cases it said were instructive of whether costs should be awarded in its favour. This included Chapman v Ignis Labs Pty Ltd[13] in which a Full Bench of the Commission confirmed that a party being self represented does not preclude an application for costs in Commission proceedings being made against them. I accept that fact that a party is self represented does not in and of itself preclude an application for costs in Commission proceedings being made against them. The Employer also referred to Montero v Club Holdings Pty Ltd[14] in which the Commission ordered costs after the Commission found it should have been reasonably apparent to the employee from 25 September 2020, midway through the matter and after the employers evidence had been filed, that her application for relief from unfair dismissal had no reasonable prospect of success. As I have earlier found, this is not a case in which it should have been reasonably apparent to Mr Katta that his case had no reasonable prospect of success. The fact that he conceded that he was not dismissed in in the conference on 31 January 2025 and would pursue a different type of application does not change this. It simply means he decided to pursue a different legal strategy, likely having considered the firm position of the Respondents concerning his employment status and his desire for permanent employment.

[63] The Employer also put forward the matter of Cremona (formerly trading as Frooty Fresh) v Lane[15] however that matter is distinguishable in that the employee in that matter appealed a decision made by the Commission when he did not attend the hearing at first instance.

[64] In the matter of Dryden v The Bethanie Group Inc the Commission decided not to award costs against an applicant in circumstances where she refused offers of settlement, failed to attend the hearing because of alleged illness, failed to supply medical certificates in respect of the illness and then discontinued her application.[16] In that matter Williams C said:

'[35] Considering Ms Dryden's actions after making this application, I do not infer from her rejecting reasonable offers of settlement, failing to attend hearings and shortly thereafter discontinuing her application that she knew her application had no reasonable prospect of success. Rather her actions, while ill considered and rightly being the basis for strident complaint from the respondent, we regrettably for all involved characteristic of an ex employee who lacked an appreciation of what was involved in pursuing an application such as this to we determine if proceeding and was not able to cope with her situation as this proceeded.

[36] Whilst I have considerable sympathy for the negative consequences and cost the applicants actions have had for the respondent I am not satisfied that it was or should have been reasonably apparent to the applicant that her application had no reasonable prospects of success.'[17]

[65] While the Williams C considered these circumstances in the context of whether it was or should have been reasonably apparent to the applicant that her application had no reasonable prospects of success, the circumstances influencing a party's conduct in proceedings are, in my opinion, still relevant to the exercise of discretion even where the conduct of a party may be objectively unreasonable. Such circumstances are relevant as part of a consideration of all of the circumstances of the matter in the exercise of discretion.

[66] In the circumstances of this matter and as I have earlier found, Mr Katta's actions were unreasonable in some respects and did result in the Employer incurring some legal costs it would not have otherwise incurred, as well as causing some inconvenience to the Commission which needed to deal with his non-compliance. Non-compliance with directions of the Commission is to be discouraged. However, in the circumstances of this matter it is also the case that:

Mr Katta was a self-represented party participating in proceedings in which the Respondents were represented by sophisticated legal representatives.
It was the Employer's decision to engage legal representation.
The question that needed to be determined in the application, whether the Employer's actions meant that the employment was terminated at the initiative of the Employer, was a complex one in the context of Mr Katta's employment as a casual employee.
In his email of 20 January 2025, Mr Katta had indicated that he was trying to seek legal assistance from Legal Aid but this was taking longer than usual.
Mr Katta's actions bear the hallmarks of an applicant who, faced with sophisticated opposition to his application in a scenario that was legally complex, was scrambling to figure out what to do and which legal pathway to take.
Mr Katta ultimately made the important decision to discontinue before the matter proceeded to arbitration.

[67] Taking into account all of the circumstances I decline to order that Mr Katta pay the Employers costs. Accordingly, the Employer's application for costs pursuant to ss. 375B is dismissed.

[1] Holland v Nude Pty Ltd [2011] FWA at [6]; McKenzie v Meran Rise Pty Ltd [20002] AIRC 1118 at [7].

[5] [1997] IRCA 267; (1997) 76 IR 180, 181, citing Attorney-General v Wentworth (1988)14 NSWLR 481, 491.

[10] See for example Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070.

[11] [1997] IRCA 267; (1997) 76 IR 180, 181, citing Attorney-General v Wentworth (1988)14 NSWLR 481, 491.

[12] McKenzie v Meran Rise Pty Ltd [2002] AIRC 1118 at [7].

Printed by authority of the Commonwealth Government Printer

Work Regulations 2009

Mr Jyothi Sravan Kumar Katta v Catholic Archdiocese of Canberra and Goulburn Education Limited, Mr Michael De Raadt, Mr Steve Wilde [2025] FWC 2810

At a glance

Court

Decision date

Source

Judgment (150 paragraphs)

Mr Jyothi Sravan Kumar Katta v Catholic Archdiocese of Canberra and Goulburn Education Limited, Mr Michael De Raadt, Mr Steve Wilde [2025] FWC 2810 (19 September 2025)

Parties

Legislation Cited (2)

Cases Cited (3)