VIC Unfair Dismissal Case - What is a Genuine Offer to Negotiate?

[mushrooms16]

Unfortunately, I recently had to self-represent in an unfair dismissal case. (I am not a lawyer but know a bit about the law). Before the hearings began, the Respondent's lawyer called me and said he would like to make a Without Prejudice offer on behalf of his client. However, his "offer" was simply that, if I did not withdraw my claim, his client would pursue me for costs. (My dismissal was very unfair and maliciously motivated and I had strong evidence on my side so my claim wasn't vexatious. I lost the case but only because of the other side's appalling tactics. Long story.)

I didn't understand what "Without Prejudice" meant at the time - it thought it was a general limitation so that anything marked Without Prejudice could not be used in court. However, I now understand that it has a specific purpose in relation to one party making a genuine offer to negotiate a settlement to reduce the cost and burden on both sides and the court.

When I heard their "offer" I understood it to mean "if you continue and lose, we will chase you for costs and you will lose your house". That is, it was not a genuine offer to settle but merely a coercive threat designed to intimidate me into dropping my case.

Can someone please help on whether that could ever be interpreted as a genuine offer to negotiate a settlement and, if not, whether it should not have attracted "Without Prejudice" privilege.

Thanks in advance.

 

[Rod]

Looks like you are caught by s131(2)(i) of the Evidence Act 2008 (Vic). Case has been decided so offer can be disclosed to work out the costs. Offer can't be used in court prior to the outcome of the court case so 'without prejudice' has worked as intended. There are some other exceptions but they don't apply or are no longer relevant in your situation.

Costs generally follow the event unless there are exceptional circumstances.

Did you have a Fair Work Commission hearing? or Federal court case? or magistrates court case? Costs are not generally awarded in Commission hearings.

While their 'offer' is not much of an offer, it is one and can be considered. Based on your description it is unlikely to add much to the total.

Hard to be certain without reading the correspondence.

BTW, 'unfair tactics' are sometimes open to appeals. Might be time to see an employment lawyer.

 

[Rod]

OOps, section is s131(2)(h)

 

[mushrooms16]

Many thanks Rod. Was an unfair dismissal case. Sounds like a threat to chase you (me) for costs is a genuine offer to negotiate a settlement. Hard to believe but I guess I will have to accept it.

Re the other side's tactics, was so unfair. Despite not being a lawyer and having no experience in the FWC and the respondent being a $100 m turnover organization with a professionally staffed HR department, the commissioner rejected my objection to them bring legally represented so I was opposed by a barrister, solicitor and his assistant. I was a lamb to the slaughter. There were other things of a similar nature that both FWC and the commissioner did that seriously undermined my case. I now have no faith in the system.

 

[mushrooms16]

OOps, section is s131(2)(h)

Thanks Rod.

 

[Rod]

Have they requested a costs order, and if so, under what section of the Fair Work Act 2009 are they using for a costs order (eg s 611)?

s 611 says:

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4‑1).

 

[mushrooms16]

Thanks again Rod. Costs were awarded to neither side but that wasn't the point of my question.

My question was about whether a threat - that they would pursue me for costs unless I dropped my claim - without any terms of compromise could be considered a genuine attempt to negotiate a settlement.

If you turn this around, the principle makes it clear that it was not genuine (to my mind). That is, let's suppose they offered to concede the matter if I paid them a million dollars. That would clearly be unachievable and not a genuine offer.

 

[Rod]

... could be considered a genuine attempt to negotiate a settlement.

Lawyers dislike trying to second guess what a judge will decide. The closest you normally come is one saying you have a good case but it is up to the judge. Which is true. When you analyse some judicial decisions you say to yourself 'wow, what just happened there!'

I don't think it was a genuine offer, but then my opinion doesn't count in a court room or other hearing.