Enkel v We R Finance Pty Ltd (No 2)
Citation: [2021] FCA 529
At a glance
- Employees affected
- 1
What happened
Alastair Enkel brought a cross-appeal against We R Finance Pty Ltd (WRF) and director Harry Charles Ross after the Western Australian Industrial Magistrates Court initially dismissed his claim against Ross. The matter concerned underpayment of award rates. WRF had also brought an initial appeal which it discontinued before hearing. On cross-appeal, Enkel sought to overturn the dismissal against Ross and to increase penalties.
What was decided
Justice Jackson allowed the cross-appeal in a prior judgment, finding Ross liable for involvement in contraventions and increasing penalties. In this costs decision, Jackson dismissed Enkel's application for costs of the appeal and cross-appeal. Although Enkel ultimately succeeded substantially, the Court found the refusal of a Calderbank settlement offer by the respondents, while ultimately unwise, did not constitute unreasonable conduct under s 570(2)(b) of the Fair Work Act.
What it means for employers
Parties should carefully consider settlement offers. However, refusing a settlement offer does not necessarily result in a costs order unless the conduct is unreasonable by a high threshold.
What it means for employees
While employees may succeed in appeals concerning underpayment, costs awards are limited under the Fair Work Act. Success does not guarantee recovery of legal costs unless the respondent acted unreasonably.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0529Want 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 →