TERMINATION OF EMPLOYMENT – costs – ss.394, 400A, 611 Fair Work Act 2009 – applicant lodged application for unfair dismissal remedy in September 2016 (unfair dismissal application) – discontinued application in January 2017, six days before matter was listed to be heard – respondent made application for costs February 2017 – sought $10,332.00 costs on an indemnity basis – respondent submitted unfair dismissal application had no reasonable prospects of success because the Commission did not have jurisdiction to determine merits of application – claimed application was made outside the 21-day time limit; that applicant was not dismissed; and that applicant was prevented from bringing unfair dismissal application by reason of settlement agreement – further submitted unfair dismissal application was made vexatiously and/or without reasonable cause and ‘hopeless and bound to fail’ – claimed by reason of applicant’s unreasonable conduct, it had incurred costs in defending unfair dismissal application – applicant claimed he was forced to resign from his employment on 28 July 2016 and was in hospital from 2 August 2016 – conceded unfair dismissal application was made out of time but provided medical certificates confirming he was suffering from depression between November 2015 and January 2017 – claimed he had been falsely accused of bullying – alleged he did not have capacity to enter into settlement agreement – Commission found nothing in the evidence presented supported a finding of the application being made vexatiously – due to application being discontinued, Commission unable to determine if unfair dismissal application had a reasonable prospect of success – would have been open to the Commission to be satisfied there were exceptional circumstances warranting applicant being granted an extension of time – Commission found applicant’s claim of constructive dismissal not without merit – not satisfied applicant unreasonably continued with unfair dismissal application until it was discontinued – not satisfied it should have been reasonably apparently to applicant that his application had no reasonable prospect of success – not satisfied it was unreasonable for applicant to instigate proceedings – no jurisdiction to order costs – application for costs dismissed. Portelli v Baxter Healthcare P/L t/a Baxter Healthcare
