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The Fair Work Commission (FWC) has made a rare costs order against an unfair dismissal applicant who filed her case while unsure if she had in fact quit in the heat of the moment, before discontinuing it less than 24 hours before the hearing.

The former Club Holdings Pty Ltd (trading as Horizons West Bus & Coach Lines) bus driver told the tribunal in support of her unfair dismissal claim that she became upset in a training meeting in which she felt she was harassed, badgered, overly criticised and coerced.

As she felt she could “not continue with the meeting and could barely hold [herself] together to face yet another bus run”, the driver said she tried to tell her employer before starting her next shift that she felt unsupported, but was told to think things over.

“For the employer to then accept this as my tendering my resignation on 25th June 2020 is harsh, unjust and unreasonable given the circumstances,” the driver said.

In a text message to a friend shortly afterwards, the driver said “Feck I just tried to quit”, adding her “new boss just says things to spark me off” and that she “ended up crying like a sensitive baby again”.

When her friend asked if she had in fact quit, the driver said she was “not sure cos I told them I’ll do this last bus run because I would not leave them stranded like that”.

Horizons West objected to the application on the basis the driver had verbally resigned and insisted it would stand after being offered several opportunities to reconsider, prompting the company to write to her and formally accept it.

A contracts administrator who was in the office at the time of the meeting said he intervened and tried to defuse the situation after the driver became loud and defensive, but she stated she “was not interested in working for the company”.

The driver apparently said she would complete her next shift as she did not want to leave the company hanging, but she “did not want to work for the company anymore”.

The administrator said when he asked if she was sure she wanted to resign, the driver said “yes”, and when he asked if she wanted to take some more time to think about it, she responded with a clear “no”.

Horizons West sent an email confirming the resignation the next day.

The driver sent a text message disputing her resignation three days after the meeting and a day after it found a replacement for her run.

She told the company she did not think it was valid as she did not have the “intention” and nor did she make a proper resignation offer for it to later accept.

Commissioner Bruce Williams in considering the company’s s611 costs application said the driver “clearly resigned” during the meeting and was not left without a choice or forced to resign by her employer’s conduct.

He was satisfied, however, that she did not file her unfair dismissal application in July last year vexatiously, given there was “no evidence as to her motivations that would support this conclusion”.

Nor did the driver make her application without reasonable cause, the commissioner said, noting it was “apparent” from the text message to her friend that she was not certain if she had resigned.

It was also apparent from the driver’s application that if she had resigned “she felt she had been in some way forced to do so”, he continued.

Commissioner Williams said, however, that once Horizons West filed and served its witness evidence and submission last September it “objectively should have been reasonably apparent … that her application was manifestly untenable or groundless”.

He said this material should have made it “reasonably apparent” she resigned, was not forced to do, and “to the extent she might argue she resigned in the heat of the moment had only three days later sought to contest her employer having accepted her resignation”.

But the driver continued to press her application until less than 24 hours before Commissioner Williams was to hear the matter.

Concluding therefore that it was appropriate to exercise his discretion and award costs against the driver, the commissioner said he would only do so from the time Horizons West filed its material.

Noting that from September 25 last year it paid for 6.2 hours of consultancy work at $275 per hour and 2.2 hours of secretarial work at $50 per hour, Commissioner Williams gave the driver a fortnight to pay her former employer costs of $1815.