Ex Employee who falsified drug test result ordered to pay employer’s costs on indemnity basis

An ex employee of Toll holdings who submitted a falsified drug test result in support of his unfair dismissal application has been ordered to pay his former employer’s costs of more than $18,000.00

In making the order that the ex-employee pay all of Toll’s legal costs and witness expenses, Deputy President Gostencnik found that the unfair dismissal claim was built “almost exclusively on a lie.” The Deputy President was satisfied that the claim was made “without reasonable cause” and was “vexatious.”

The employed truck driver had been dismissed by Toll Holdings in June 2015 after he had tested positive for amphetamines while at work. The test was conducted in conformity with Toll’s drug and alcohol policy. In pursuing his unfair dismissal application, the employee disputed Toll’s test result. He said that he attended his own doctor immediately after undergoing Toll’s test to request a second test. He claimed that his own doctor’s test had returned a negative result and submitted (as it turned out) a doctor’s report that was false in support of his application. The employee maintained the validity of his doctor’s report in his evidence before the Commission and under cross examination. The employee’s case fell apart when his doctor gave evidence that the test report attached to the employee’s witness statement was not the report he had prepared. The doctor went on to say that his actual report confirmed that the employee had tested positive for amphetamines.

On hearing the doctor’s evidence, the employee instructed his solicitor to discontinue the proceedings and, in the Deputy President’s words, “did a runner.” He left the Commission before the doctor had finished giving his evidence and did not return.  His Honour was satisfied that the employee “knowingly and deliberately attached a drug test result to his witness statement which he knew to be false, and that he knowingly and deliberately gave false evidence under oath during the hearing before me about the drug  test.”

The employee was informed that Toll had made an application for its costs on an indemnity basis. He was invited to respond to give reasons why the order should not be made but failed to do so. The Commission made several attempts to contact him, all of which were unanswered.

In making the indemnity order, DP Gostencnik recognised that usually each party to proceedings before the Fair Work Commission will bear their own costs, and it is rare for a party to be ordered to pay the other party’s costs. The Fair Work Act provides that costs may be awarded against an unsuccessful party if the proceedings have been commenced vexatiously or without reasonable cause, or a party’s unreasonable act or omission caused the other party to incur costs unnecessarily. Costs may also be awarded if an application or a response to an application has no reasonable prospect of success.  In deciding to make an order for indemnity costs, the Deputy President observed “In my view, this is plainly a case in which indemnity costs are warranted. This is a case where [the employee]posited a case to his dismissal from the very beginning which he knew from the very beginning to be false. He persisted in his lie until he was finally caught out by the evidence of [his own doctor].”

Conclusion

This case is unusual in that indemnity costs were awarded against an unsuccessful applicant. It however does demonstrate that an employee who makes an unfair dismissal application which is dismissed by the Fair Work Commission can be ordered to pay the former employer’s costs if the Commission is satisfied that the application was made without reasonable cause, was vexatious or had no reasonable prospect of success. Similarly an employer can be ordered to pay a successful employee’s costs if it unreasonably defends the application or unreasonably rejects an offer to settle the application.

For more information regarding this article, please contact Jakov Miljak on 1300 361 099 or email jakov.miljak@neca.asn.au.