Rachel Bates v [2025] FWC 1222

JK (SA) Investments Pty Ltd & Europa (SA) Pty Ltd trading as Oyster Bar Elizabeth Quay

Application to deal with contraventions involving dismissal

• [1] On 3 December 2023 Ms Rachel Bates (Bates) filed an application (GP Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging the Oyster Bar (Perth Venue) (Oyster Bar) contravened the general protections provisions of the FW Act by dismissing her.

• [2] On 18 December 2025 Oyster Bar lodged a Form F8A - Response to a general protections application involving dismissal (Employer Response) which raised a jurisdictional objection to the Application (Jurisdictional Objection) alleging that Ms Bates resigned and was not dismissed. In the Employer Response, Oyster Bar affirmed that Ms Bates had given the correct legal name of the respondent in the Application.

• [3] Ms Bates acknowledged in the Application that she resigned but asserted that she was forced to do so because the Oyster Bar did not reasonably address her multiple complaints of workplace bullying. Attached to the Application were copies of multiple incident reports made by Ms Bates to the Oyster Bar about the alleged workplace bullying.

• [4] On 22 January 2025, the Application was allocated to my Chambers for determination.

• [5] On 6 February 2025 the parties were notified that the Application was listed for a directions conference at 10am on 12 February 2025.

• [6] On 11 February 2025 at 9:30pm Ms Bates sent an email to Chambers stating as follows:

Due to sickness throughout today and into this evening I will not be able to attend tomorrow morning at 10am.

Sorry I thought I would have been well enough for the meeting tomorrow.

• [7] Ms Bates was requested to provide medical evidence that she was unfit to attend the Conference in support of her adjournment request.

• [8] On 13 February 2025 Ms Bates provided a medical certificate dated 13 February 2025 which stated as follows:

"Ms Rachel Bates has a medical condition and will be unfit for work from 12/02/2025 to 12/02/2025 inclusive."

• [9] Chambers informed Ms Bates as follows:

"On this occasion the Deputy President will accept your medical certificate.

However, any further adjournment requests for conferences/hearing dates need to be accompanied by a medical certificate which specifies that you were unable to attend a conference/hearing rather than being unfit to work."

• [10] Directions were issued to parties on 17 February 2025 (Directions). The Directions required Ms Bates to file by 4pm (AWST) 27 February 2025 the following materials in relation to the Jurisdictional Objection:

"a. Written submissions in relation to the Jurisdictional Objection.

b. A signed and dated witness statement for any witness to be called in relation to the Jurisdictional Objection.

c. A copy of each authority relied on in relation to the Jurisdictional Objection. Relevant authorities are decisions of the FWC and other Courts and Tribunals who have considered the legal principles relied on in the written submissions. Examples of relevant authorities are contained in the General Protections Bench Book available on the FWC website: www.fwc.gov.au.

d. A copy of each document relied on in relation to the Jurisdictional Objection.

e. A Document List which lists each document which is filed and contains a description of each document, the date of each document and the length in pages of each document (so the documents can be readily identified). A template document list is attached."

• [11] The parties were advised that compliance with the Directions was mandatory.

• [12] On 19 February 2025 the Australian Hotels Association Western Australia filed a Form F53 - Notice of a Representative Commencing to Act advising that it had commenced to act on behalf of Oyster Bar.

• [13] On 20 February 2025 Oyster Bar made a without prejudice settlement offer to the Ms Bates conditional upon her confirming acceptance of the settlement offer by 24 February 2025.

• [14] On 24 February 2025 Ms Bates advised Oyster Bar that she declined the settlement offer.

• [15] On 25 February 2025 my Chambers issued a Notice of Listing informing the parties that the Application had been listed for a programming conference at 10am on 5 March 2025.

• [16] On Thursday 27 February 2025 Ms Bates filed several documents, but did not file any witness statements as she had been directed in the Directions. She filed brief submissions in support of the Application. Later the same day she filed a second medical certificate certifying her unfit for work from 27 February 2025 until 3 March 2025.

• [17] On Friday 28 February 2025 Chambers reminded Ms Bates that she had previously been advised that a medical certificate that simply states she is unfit for work is insufficient to excuse her attendance at the Commission.

• [18] On 4 March 2025 Chambers informed Ms Bates that she had not fully complied with the Directions and that in the absence of her doing so or filing a notice of discontinuance her application may be dismissed on the basis that it had no reasonable prospects of success.

• [19] On Wednesday 5 March 2025 at 8:55am Ms Bates wrote to Chambers stating as follows:

"Hello I would like to drop my case and accept the settlement agreement. I do not have a printer to fill out my form.

I am very unwell from my surgery and I won't be able to attend.

• [20] Later the same day at 9:09am, Oyster Bar's representative sent an email to Ms Bates copied to Chambers stating as follows:

"The offer you are referring to related to a without prejudice offer on behalf of the Respondent to yourself, which expired on Monday, 24 February 2025. The Respondent confirms there is no further settlement offer it is willing to propose in this matter."

• [21] At 10:20am on the same day, my Chambers sent an email to Ms Bates explaining that if she wished to discontinue the Application she should compete and file a Notice of Discontinuance or confirm by return email that she wished to discontinue the Application.

• [22] At 4:32pm on 6 March 2025 Ms Bates sent a completed Notice of Discontinuance to Chambers. The same day Chambers confirmed that the matter was now closed.

• [23] On 18 March 2025 Europa (SA) Pty Ltd & JK (SA) Investments Pty Ltd (Europa) filed an application (Costs Application) pursuant to sections 611 and 357B of the FW Act seeking an order for costs. Europa was required to make submissions in relation to its standing to make the Application. Europa explained that an error was made in the completion of the Form F8A and that the correct legal name for the respondent was Europa. Based on the evidence provided by Europa and pursuant to the powers under s.587 of the FW Act an order was issued on 7 April 2025 to correct the name of the respondent to these proceedings.

• [24] Directions were issued to the parties on 7 April 2025 (Costs Directions) for the filing of materials in relation to the Costs Application.

• [25] On 24 April 2025 and 29 April 2025 respectively, the parties advised Chambers that they did not wish to be heard orally in relation to the Costs Application. The Costs Application has therefore been determined 'on the papers'.

• [26] In reaching my decision, I have considered all the submissions made and the evidence tendered, even if not expressly referred to in these reasons for the decision.

• [27] The Costs Application is made pursuant to sections 611 and 357B of the FW Act.

• [28] In assessing cost applications made pursuant to sections 611 and 375B of the FW Act, the Full Bench in Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd[1] explained that:

"[9] Sections 611 and 375B require separate consideration. Section 611 is directed towards the conduct of a person at the time an application (o response) is first made and requires consideration of whether the application was "made" vexatiously or without reasonable cause, or whether it should have been reasonably apparent, at the time the application was made, that it had no reasonable prospect of success.

[10] Section 375B is directed to conduct by a party "in connection with the conduct or continuation of [a proceeding]" and requires consideration of whether that conduct caused costs to be incurred and was "an unreasonable act or omission."[2]

• [29] In essence, section 611 of the FW Act deals with conduct relating to the time an application or response is made to the FWC, while section 375B of the FW Act deals with conduct relating to the continuation of an application or response.

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

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

(a) the FWC 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 FWC 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.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4 - 1).

• [31] The general rule is that parties bear their own costs in relation to a matter before the FWC (s 611(1)). However, s 611(2) provides that the FWC may order a person to bear some or all of the costs of another person in relation to an application if the FWC is satisfied either that the first person made the application 'vexatiously or without reasonable cause' (s 611(2)(a)), or that 'it should have been reasonably apparent' to the person that the application had 'no reasonable prospect of success' (s 611(2)(b)).

• [32] Further, s375B provides that in relation to a general protection dismissal application the FWC may make a costs order against a party if it is satisfied that it 'caused' the other party to incur costs 'because of an unreasonable act or omission' in connection with the conduct or continuation of the matter.

• [33] Europa's costs application contends that each of ss 611(2)(a), 611(2)(b) and 375B is engaged and that the FWC should exercise its discretion to order Ms Bates to pay $4,875 in costs.

• [34] In considering the exceptions at section 611(2) of the Act, the Full Bench in Church Eastern Health t/as Eastern Health Great Health and Wellbeing[3] stated the following regarding section 611(2)(a):

"[29] The question of whether an application was made 'vexatiously' looks to the motive of the applicant in making the application. It is an alternative ground to the ground that the application was made 'without reasonable cause' and may apply where there is a reasonable basis for making the application. In Nilsen v Loyal Orange Trust (Nilsen) North J observed that this context requires the concept of vexatiousness to be narrowly construed. His Honour went on to state that an application will be made vexatiously 'where the predominant purpose ....is to harass or embarrass the other party, or to gain a collateral advantage'. Deane and Gaudron JJ made a similar observation in Hamilton v Oades in which they said:

"The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously or unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment'."

[30] We now turn to the expression 'without reasonable cause'. A party cannot be said to have made an application 'without reasonable cause', within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. In Kanan v Australian Postal and Telecommunications Union., Wilcox J put it this way:

"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 proceeding, 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 that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause."[4]

• [35] The Full Bench in Baker v Salva Resources Pty Ltd[5] summarised the section 611(2)(b) exception as follows:

> >   

> > _"\[10\] The concepts within s.611(2)(b) "should have been reasonably apparent" and "had no reasonable prospect of success" have been well traversed:_

• "should have been reasonably apparent" must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• • a conclusion that an application "had no reasonable prospect of success" should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."[6]

(1) The FWC 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 FWC to deal with the dispute has been made under section 365; and

(b) the FWC 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.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

(3) This section does not limit the FWC's power to order costs under section 611."

• [37] The Full Bench in Neil Keep v Performance Automobiles Pty Ltd[7] outlined the background of section 375B of the FW Act:

"[11] Section 375B was inserted into the FW Act by the Fair Work Amendment Act 2013 (Cth). The new provision came into effect on 1 January 2014 and applies to dismissals which took effect from that date.

[12] The Supplementary Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) states as follows:

"New section 375B allows the FWC to order costs against a party to a general protections dismissal dispute (the first party) if it is satisfied that the first party caused the other party to the dispute to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. New section 375B is similar to the costs orders that are available against parties in relation to unfair dismissal matters (see section 400A).

57. This power to award costs is in relation to the dispute before the FWC and does not include costs associated with a general protections court application.

58. 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.

59. 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.

60. 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.

61. 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."[8]

• [38] Europa contend that Ms Bates made the Application vexatiously and without responsible cause because she knew at the time the Application was made that her employment had not been terminated and that she had not been forced to resign.

• [39] Europa acknowledge that Ms Bates made various reports of workplace bullying but contend that she was not forced to resign given that Europa had investigated her allegations, modified rostering arrangements and held a mediation meeting between her and the alleged bully. Europa contend that Ms Bates tendered her resignation the day after the mediation meeting entirely on her own initiative.

• [40] Europa assert that Ms Bates failed to actively participate and prosecute the Application by failing to comply with the Directions. Europa also accuse Ms Bates of unduly prolonging the dispute and thereby increasing the costs of Europa by failing to promptly advise Chambers of her intention to discontinue the Application.

• [41] Ms Bates filed materials in relation to the jurisdictional objection. Those materials reflected the complexity of the general protections provisions and the law in relation to 'constructive dismissal' for lay applicants, her lack of legal representation and her medical evidence that she had been unwell. While her materials were not lengthy or in the format requested by Chambers, they identified the evidence upon which she relied. Europa did not file any evidence or submissions in support of the Jurisdictional Objection.

• [42] I am not satisfied that Ms Bates made the Application vexatiously or without reasonable cause or that it was reasonably apparent that the Application had no reasonable prospect of success. The general protections provisions and the law in relation to 'constructive dismissal' is complex particularly for unrepresented parties.

• [43] There is insufficient evidence before me to determine that Ms Bates' allegations of bullying were not unfounded or that Europa's response to those allegations were such that Ms Bates had no reasonable prospect of success in defending the Jurisdictional Objection. Chambers correspondence of 4 March 2025 did not express a concluded view that the Application had no reasonable prospect of success. Rather it alerted an unrepresented applicant of the importance of filing more detailed materials and provided a prompt to do so. The medical evidence Ms Bates filed that she had been unwell went some way to explain the quantity and format of the materials she initially filed.

• [44] The fact that the Europa made an offer of settlement on the 20 February 2025 appears to have been perceived by Ms Bates as an indication that her case did not lack merit and hence her decision to proceed and file the materials that she did file. This is a risk which arises when making offers to unrepresented applicants who do not understand that employers may make what they consider to be 'commercial' offers of settlement.

• [45] When Chambers alerted Ms Bates to deficiencies in the materials filed she promptly responded to Chambers indicating that she did not wish to proceed to hearing given her illheath and wished to accept the without prejudice offer which was made. The following day after Europa confirmed that the settlement offer had been withdrawn Ms Bates promptly filed a completed Notice of Discontinuance to Chambers. The same day Chambers confirmed that the matter was now closed.

• [46] I am satisfied that Ms Bates did not cause Europa to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the dispute. She acted promptly when she understood the complexity of the task before her given the state of her health and before Europa was scheduled to file any materials.

• [47] Europa seeks to recover costs of $4,875. These is made up of costs incurred for legal work perform by AHA after the Directions were issued.

• [48] If, as Europa submit, it should have been readily apparent to a waitress that her case had no reasonable prospect of success why did Europa need the assistance of lawyers? The FWC is a Tribunal in which the default position is that parties will represent themselves. The FWC is subject to a statutory direction to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities (s 577(1)(b)). Further, ample information and material is made available to the public on the Commission's website about proceedings in the Commission, including general protection matters. As noted by Deputy President Colman in Delmont Hospital Unit Trust v Barbara Wielechowska:[9]

"A weak case does not ordinarily require the other party to obtain extensive legal advice and support."

• [49] The Directions required Ms Bates to file her materials on 27 February 2025. The Directions did not require Europa to file any materials until 7 March 2025. A conference which would have provided the parties with the opportunity to engage in facilitated settlement discussions was listed for the morning of 5 March 2025. Given the without prejudice offer to settle did not expire until 24 February 2025 costs incurred in preparing to comply with the Directions before 25 February 2025 ($1,300) were not judiciously incurred. Other costs claimed by Europa include attendance of two solicitors at a conference that did not proceed. A significant portion of the costs are attributed to the preparation of the Costs Application ($1,300) notwithstanding that the likely prospects of such an application were in all circumstances not certain.

• [50] In all the circumstances, I decline to make any order for costs. As such, this application is dismissed.[10]

[1] Mohammad Amin (Darius) Souraki Azad v Hammond Park Family Practice Pty Ltd [2022] FWCFB 110.

[3] Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.

[5] Baker v Salva Resources Pty Ltd [2011] FWAFB 4014.

[7] Neil Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956.

[9] Delmont Hospital Unit Trust v Barbara Wielechowska [2025] FWC 498 at [13].

[10] PR787729.

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