Industrial Relations Commission of New South Wales CITATION: Paul Sleap and ABB Administrative Services Pty Limited [2007] NSWIRComm 1065 APPLICANT Paul Sleap PARTIES: RESPONDENT ABB Administrative Services Pty Limited FILE NUMBER(S): 1987 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - Hearing - Decision of Commission in favour of dismissed employee that he was unfairly dismissed - costs application by dismissed employee - statutory ground for costs is unreasonably failed to settle - offers and counter-offers and their context considered - costs claim successful - indemnity costs claim denied - party to party costs ordered LEGISLATION CITED: Industrial Relations Act 1996 Bankstown City Council v Paris (1999) 93 IR 209 Orange Community Accommodation Service Incorporated and Carolyn Vivienne Roddenby (2004) NSWIRComm 333 CASES CITED: Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66 Staal and Tupene v Western Sydney Area Health Service [2004] NSWIRComm 325 Tuholi Pty Ltd v Caltex Australia Petroleum Pty Ltd (2001) 103 IR 329 HEARING DATES: 05/10/07 DATE OF JUDGMENT: 31 October 2007 APPLICANT Mr D O'Sullivan, solicitor Turner Freeman LEGAL REPRESENTATIVES: RESPONDENT Mr D O'Sullivan, solicitor Fisher Cartwright Berriman DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 31 October 2007 Matter No IRC 1987 of 2005 Paul Sleap and ABB Administrative Services Pty Limited Application by Paul Sleap re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION ON COSTS [2007] NSWIRComm 1065 1 This Decision concerns an application for costs made by an employee (Paul Sleap) against a former employer (ABB Administrative Services Pty Limited). The ground for the costs application is that the employer unreasonably failed to settle. 2 The costs application arises out of an unfair dismissal application made by the employee against his former employer. 3 The unfair dismissal application came before myself for arbitration. I issued a Decision on 13 July 2007 in which I found that the dismissal of the employee was harsh and unjust and made certain orders, including payment of $30,000 gross pay compensation. 4 The costs application came on for Mention on 18 September and for Hearing on 5 October 2007. On both occasions, the employee was represented by Mr D O'Sullivan, solicitor and the employer was represented by Mr A Salmon, solicitor. 5 In keeping with the confidential nature of the proceedings, the Commission issues this abridged Decision On Costs. The reasoning behind this abridged Decision On Costs is set out in a Confidential Appendix. 6 Having considered the submission of the parties, the Commission finds that the employee has made out its claim for costs pursuant to s.181(2)(c) of the Industrial Relations Act 1996. 7 The Commission has rejected the employee's claim for costs on an indemnity basis. 8 The Commission's consequent orders are set out below: ORDERS (a) The employer (ABB Administrative Services Pty Limited) is to pay the employee's (Paul Sleap) costs, on a party to party basis, as agreed or as assessed for all work carried out in respect to proceedings from 13 May 2006 up to 13 July 2007. (b) Unless assessment of the amount of costs as provided for in the above Order is required, then the employer shall pay the costs, as ordered, within 28 days from the date of this Decision On Costs. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.