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Legal costs and arbitration – general protections dismissal

Information about when the Fair Work Commission will make a costs order after arbitration for a general protections dismissal claim.

About legal costs

Costs are:

  • lawyers fees, and
  • the expenses involved in running a case, such as fees for subpoenas, witnesses, and getting copies of records and expert reports.

If someone wins a case, they may ask for an order that the other party pay their costs.

Costs orders

The Commission is a 'no costs jurisdiction'. This means that usually the Commission will not make orders about costs after conciliation or arbitration. Each party will have to pay their own legal costs and expenses, regardless of whether they win or lose. 
 
Although costs orders are rare, in some cases, the Commission will make orders about costs after arbitration. The Commission can order costs where someone went ahead with a case when it was clearly weak and they had no chance of winning.

Before you agree to arbitration, you should get legal advice about the strength of your case.

If the employer tells you they are going to ask the Commission for a costs order, you should get legal advice.

The Commission can also make costs orders against lawyers and paid agents where the lawyer or agent encouraged their client to run a hopeless case or acted unreasonably.

Applying to be paid your costs

If you want to make an application to the Commission for the employer to pay your costs, you must fill out, file and serve Form F6 -Application for costs within 14 days from either:

  • the date the case was decided
  • the date the case was ended (discontinued).

You can get copies of the Application for Costs form (Form F6) from:

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