Why revenge against employer with FWC claims can backfire

Revenge against your employer is often a strong motivator to make an unfair dismissal claim. And while such motivations can be legitimate, you need to make sure you don’t abuse the Fair Work system. 

Vexatious unfair dismissal claims, like those with little chance of success, can sometimes lead to the applicant ordered to pay their employer’s legal costs. Meanwhile, purposely drawing out Fair Work Commission proceedings to get back at your employer can similarly end in bad results.

In this article, we look at a recent case involving a “spiteful” Brisbane worker who attempted to draw out her unfair dismissal claim for over six years. This included delaying proceedings because she claimed she “didn’t understand” documents.

She had also asked for multiple adjournments and submitted hundreds of documents of evidence. Let’s look at the events of this Fair Work Commission unfair dismissal case – Sophia (Marttea) Baker v Bodhicorp Pty Ltd ATF The Gadens Service Trust No 2 [2024].

Legal secretary’s “spiteful” six-year unfair dismissal case quashed

A Brisbane legal secretary has had her claim thrown out by the Fair Work Commission after six years of “spiteful” action against her “incredibly patient” employer. Sophia Baker had worked at Bodhicorp Pty Ltd, trading as Gadens Lawyers Brisbane, since 2006. She was fired in September 2018 after failing to attend several independent medical examinations requested by her employer.

Worker purposely dragged out proceedings to take revenge against employer

In the lead up to her sacking, Ms Baker had failed to answer repeated contact from Gadens. Then after lodging her unfair dismissal claim, she purposely dragged out the affair “for an extraordinary period of time.”

Ms Baker had submitted 162 pages of written submissions, 178 supporting documents and 158 pages of submissions. The commission said the delay in proceedings were “caused by [Ms Baker] who has sought a numerous number of adjournments.” It noted that she had waged a “determined and spiteful campaign” against Gadens.

The Commission highlighted that Ms Baker had “kept repeating ‘she didn’t understand'”. She also dragged out proceedings by saying things “were not in clear easy to understand language.”

By the time she was sacked, Ms Baker had not attended work since 9 June 2017. She claimed this was due to ongoing health issues. During this period, Gadens Lawyers sought to confirm her fitness for work through a series of independent medical assessments. In early 2018, Gadens contacted Ms Baker to follow up on her health condition multiple times. The company had asked for details of her treating medical specialist. Ms Baker did not respond to these requests.

Gadens then scheduled several independent medical examinations, beginning in June 2018. Despite repeated requests, she failed to attend these. Gadens then issued Ms Baker with several warnings about the potential consequences of failing to attend, including disciplinary action.

On 14 August 2018, Gadens issued Ms Baker with a show cause letter. Asking her to explain why she had not complied with their lawful and reasonable direction. Ms Baker responded to the letter on 29 August 2018. Nevertheless, after her failure to attend another assessment, her employment was terminated.

FWC ruling on vengeful unfair dismissal applications

Ms Baker argued to the Fair Work Commission that her sacking was unjust and unreasonable. She contended that requests to attend an independent medical examination were unlawful and unreasonable.

However, the Fair Work Commission found that there was a valid reason for Ms Baker’s dismissal. It stated that Ms Baker’s failure to attend multiple medical examinations amounted to a failure to follow a lawful and reasonable direction. The commission deemed the requests to attend medical examinations a “reasonable direction.”

The Fair Work Commission ultimately ruled in favour of Gadens. Finding that the firm had acted reasonably and lawfully in firing Ms Baker. To pursue the claim any further would be vexatious and to take revenge against her employer.

Worker who claimed he was sacked for anti-feminist stance incurs £20K in costs

Let’s turn to the UK, where an employee made headlines for copping a £20,000 (~AU$37,0000) bill for pursuing an unfair dismissal claim for the wrong reasons. Kevin Legge had worked for the UK government’s Environment Agency for over 15 years. In his claim, he argued that his April 2021 sacking by the agency was motivated by his stance on feminism.

Mr Legge, who’s aged in his 50s, claimed that he was fired for refusing to follow the “feminist agenda” promoted by his employer. In addition to his unfair dismissal claim, he also lodged a discrimination claim.

Refused to “positively discriminate”

Mr Legge argued to the UK Employment Tribunal that his termination was the result of taking a stand against his supervisor. A person who was head of the agency’s National Enforcement Service. He argued that she attempted to alter the gender balance within the department by promoting women to senior roles.

Mr Legge claimed that his refusal to “positively discriminate” in favour of female candidates led to his sacking. He cited several incidents. Including one where he allegedly rejected a female candidate based on merit but was challenged by his supervisor. Another incident involved what Mr Legge described as a biased interview process that he claimed favoured female candidates. Additionally, he stated that in early 2020, he was prevented from appointing a male candidate who he believed was the best candidate for a senior position.

Agency claimed worker was sacked for “moonlighting” 

However, the Environment Agency refuted these claims. Arguing that Mr Legge was dismissed for reasons unrelated to his beliefs about feminism. The agency claimed that he had been moonlighting as a counsellor during office hours. This was a breach of his contract as a full-time employee.

The tribunal heard that Mr Legge had engaged in private psychotherapy sessions during work hours, leading to his sacking on grounds of dishonesty and fraud. The Environment Agency asserted that Mr Legge had failed to disclose his outside work. The agency also alleged he had committed fraud by claiming a full-time salary while working reduced hours due to his counselling practice.

The agency stated that this activity had an “adverse effect on his duties,” prompting an investigation that uncovered his counselling activities. During the investigation, an inquiry agent had even booked a psychotherapy appointment with Mr Legge during hours when he was supposed to be engaged in his duties at the agency. The disciplinary process that followed found that he had violated the agency’s code of conduct.

“Vexatious” and “unreasonable”: Tribunal slams worker

The tribunal rejected Mr Legge’s claims of discrimination, victimisation and unfair dismissal. It ruled that his sacking was due to his outside work as a counsellor and not because of any discriminatory practices within the Environment Agency. His intentions was more likely too take revenge against his employer.

The tribunal judge stated that Mr Legge’s case had “no reasonable prospect of success” from the outset. One of the key points in the tribunal’s ruling was that Mr Legge’s philosophical belief in opposition to feminism was not protected under the Equality Act 2010. The tribunal found that his beliefs were “not worthy of respect, or compatible with human dignity” and were “in conflict with the rights of others.”

“As to the discrimination claims…there was no substantial connection to the protected characteristic, the tribunal believe that they and [Mr Legge’s] motives were brought unreasonably and vexatiously,” the judge said. The tribunal also found there was no evidence to support Mr Legge’s claims of sex discrimination or victimisation based on his status as a non-feminist.

Worker slapped with massive legal costs after taking revenge on employer

As a result of his unsuccessful claims, Mr Legge was ordered to pay £20,000 towards the Environment Agency’s legal costs, which totalled £106,000. The tribunal described the amount as “a very small contribution” towards the agency’s total legal fees.

The decision to award costs was made in light of the tribunal’s finding that Mr Legge had acted unreasonably by withdrawing his unfair dismissal claim on the final day of proceedings. The tribunal also noted that his claim had no realistic chance of success from the outset.

This highlights one of the dangers of taking revenge against your employer. If the claim is seen to be vexatious or clearing to waste one or more parties lives then costs can be awarded. Even at the Fair Work Commission which is usually a ‘no costs’ jurisdiction. Keeping in mind that years of legal proceedings will likely result tens of thousands of dollars.

Office manager’s plan to “inflict as much damage as possible” on employer backfires

Another example of an unfair dismissal claim pursued for the wrong reasons is the Fair Work Commission case Charles Parletta Real Estate Pty Ltd v Ms Maria D’Ortenzio and Mr Nicola Minicozzi [2018]. The case centred around the sacking of Ms Maria D’Ortenzio, an office manager at Charles Parletta Real Estate.

The sacking occurred following a series of incidents that the employer alleged demonstrated serious misconduct. The breakdown in the employee-employer relationship became evident after Ms D’Ortenzio began a romantic relationship with the firm’s solicitor, who was representing her in the dismissal proceedings.

Working relationship “poisoned” by employee

Charles Parletta Real Estate presented multiple allegations against Ms D’Ortenzio. This included unilaterally increasing her salary without authorisation and reducing another employee’s pay as a form of punishment. She had also instructed her solicitor to contact financial institutions and a potential buyer of the business in a manner that was deemed inappropriate.

By the time she was fired, the relationship between Ms D’Ortenzio and her employer had deteriorated to the point where it was “poisoned” and “totally dysfunctional,” the Fair Work Commission said.

Worker wanted revenge to “inflict as much damage as possible”

In her unfair dismissal application, Ms D’Ortenzio argued to the Fair Work Commission there was no valid reason for her termination. However, Charles Parletta Real Estate contended that her conduct justified the dismissal. The company also sought to have costs awarded against her.

CPRE applied for indemnity costs, alleging that Ms D’Ortenzio’s claim was vexatious, without reasonable cause and lacked any reasonable prospect of success. The company argued that the proceedings had unnecessarily incurred legal costs and sought costs from both Ms D’Ortenzio and her solicitor.

Fair Work slams employee for revenge claim against employer

In its decision, the Fair Work Commission initially expressed caution regarding the awarding of indemnity costs. It noted that indemnity costs are rarely granted, and when they are, only in cases involving “some relevant delinquency on the part of the unsuccessful party.”

Nevertheless, the commission determined that Ms D’Ortenzio’s conduct had met that threshold, particularly in the later stages of the proceedings. It was noted that her claim may not have been vexatious from the outset. However, the futility of it became apparent after Ms D’Ortenzio reviewed her employer’s submissions to the Fair Work Commission.

Ms D’Ortenzio had been “invited to consider her position in light of the evidence,” yet she chose to proceed. The Fair Work Commission was particularly critical of the fact that Ms D’Ortenzio had persisted with the case despite evidence clearly demonstrating her sacking was justified. Even if not her original plan, her vengeful ideology against her employer works against the Fair Work’s goal of mediation.

The commission found that her dismissal letter “clearly outlined the grounds” for her termination. Therefore, it should have been “evident” to her that the claim had no reasonable basis. 

Costs awarded

The Fair Work Commission ultimately ruled in favour of Charles Parletta Real Estate’s application for costs. Ms D’Ortenzio was ordered to pay costs on a party-party basis from the day after she lodged her unfair dismissal application. She was also ordered to pay costs on an indemnity basis from the conclusion of her evidence.

The commission justified the decision by stating that her actions in continuing the case amounted to delinquent conduct.

Conclusion to: When taking revenge against your employer backfires

When adversely affected or unfairly dismissed most employees are justified in their pursuit of justice at the Fair Work Commission. However, for employees who pursue claims solely to take revenge on their employer there are clear warnings.

Employees risk damaging their own reputation, rather than their employers. Employees can have costs granted against them which has the opportunity to result in debt or even bankruptcy. Additionally, the employees pursuit will result in tunnel vision and prevent the employee from finding further work or being able to move on emotionally.

Need help with your unfair dismissal claim? 

Lodging a claim with the Fair Work Commission can be a difficult process and must be done within 21 days of your termination. Our team at A Whole New Approach are Australia’s leading workplace representatives. (AWNA are not lawyers). We can simplify the claim process for you, explain your rights, and ensure you put your best foot forward at the Fair Work Commission.

We assist workers in every state and territory and offer a no-win, no fee service. Call us today on 1800 333 666 for a free and confidential discussion.

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