Can An Employer Seek Security For Payment Of Possible Costs Against A Former Employee Who Is Claiming Unfair Dismissal?

Ms Deborah Bates (the employee) lodged an unfair dismissal claim after her employer attempted to transfer her employment to another location. The employer lodged a motion to dismiss the application on the basis that the claim was frivolous, vexatious or lacking in substance; and the employer also lodged an objection on the basis that the application was lodged out of time by 77 days. After two unsuccessful conciliations, the employer lodged an application for security for the payment of costs (Twin Towers Employment Enterprises Ltd T/A Job Futures S.E.Q.).

Commissioner Spencer had to consider the issue of security for payment of costs in the amount of $4,000. This was the amount the employer offered to the employee to settle the original unfair dismissal claim at the second conciliation.

In relation to the security for costs application, the employer stated that the employee’s employment had not been terminated; and there were no valid reasons given by the employee to support granting an extension of time.

The employee maintained that her employment had been terminated as her original position of Community Services Co-ordinator at Tweed/Murrwillumbah was dissolved; and that she should receive a redundancy payment because the transferred position was not in the same capacity as her Co-ordinator role.

Commissioner Spencer considered that the amount of $4,000 as reasonable in consideration of the future potential litigation associated with the application, given the jurisdictional matters to be dealt with.

An order was issued to that effect, after consideration of several factors including the employee’s financial position, and the potential matters to be considered at jurisdiction and arbitration. The employee will have to provide security of $4,000 before the matter can be further heard by Fair Work Australia.