Bashour v Australian and New Zealand Banking Group Limited
Citation: [2017] FCA 163
At a glance
- Employees affected
- 1
What happened
Katherine Bashour was employed by the Australian and New Zealand Banking Group Limited. On 1 October 2014, her employment was terminated (the parties disagreed whether she resigned or was constructively dismissed). She commenced proceedings in the Federal Court alleging contraventions of general protections provisions of the Fair Work Act and the Australian Consumer Law, and breaches of her employment contract. She later commenced separate proceedings in the Victorian Civil and Administrative Tribunal alleging constructive dismissal and contraventions of the Equal Opportunity Act.
What was decided
The Federal Court granted the applicant leave to discontinue the Federal Court proceeding on the basis that there be no order as to costs. The applicant had sought indemnity costs or various other costs orders, but the respondent bank opposed. The court examined whether the respondent had engaged in 'unreasonable acts or omissions' within s.570 of the Fair Work Act. The court found the respondent's conduct in applying to VCAT was not unreasonable. The bank's application to VCAT to refer the matter to the Federal Court was later quashed by the Victorian Supreme Court on the basis that VCAT lacked power to make such a referral.
What it means for employers
Employers who apply to transfer proceedings between courts should ensure the transferring court has jurisdiction to do so. While unsuccessful applications to VCAT will not necessarily result in adverse costs orders, employers should consider carefully whether such applications are properly based in law. Applications based on confused jurisdictional arguments may result in time and costs being wasted.
What it means for employees
Employees bringing discrimination and general protections claims should be aware that costs consequences may depend on the conduct of the proceedings and how claims are framed across different forums. Costs in Fair Work Act matters are restricted, and unsuccessful applications may not automatically result in an order to pay the employer's costs if the employee's conduct has not been unreasonable.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0163Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →