There is a strong disinclination for Judges to make orders requiring individuals to provide security for costs but in August 2015 a Federal Circuit Court Judge did just that (FCCA 2094). So what led to the Judge making such a decision?
Well the story goes like this. A former public servant had signed an agreement waiving any rights to further action against his former employer and received a voluntary redundancy payment of more than $22,000. We all know how that goes.
Despite this signed agreement, the former employee decided to pursue a claim that the government agency took adverse action against him after he lodged proceedings in the Fair Work Commission and in the Australian Human Rights Commission and made complaints about workplace health and safety to Comcare.
Therefore what is his defence for making a claim when he had already signed an agreement to prevent any further action being taken against his former employer? Well its simple! Other than the fact that he apparently didn’t understand his obligations at the time he signed the agreement, he argued that the agreement was actually null and void. I hear you ask why! The reason he gave was that he had fraudulently signed the document as a witness!
Now that raises another issue for him. If he witnessed his own signature fraudulently to argue the agreement was null and void, it could be viewed that he obtained the benefit from the agreement ($22,000) by deception.
So hats off to Judge John Smith for determining that the case would be dismissed if the former employee failed to pay the $15,000 to secure costs for the adverse action claim within 30 days. Let’s hope that some form of common sense will prevail from here in this case.
From an employers perspective it is fantastic to see judgements like this made. Claims like this cost organisations a fortune in resources to defend. Josh Frydenberg (Federal Resources and Energy Minister) told Channel Ten’s The Bolt Report recently that Prime Minister Turnball was “absolutely right” to point to IR as an area that increases costs and reduces productivity. For now we will just have to be satisfied with small wins where we can.