1 Fair Work Act 2009 s.365—General protections Shawn Taka Edward Goss v Cornerstone Dental Group Pty Ltd (C2025/12149) DEPUTY PRESIDENT MASSON MELBOURNE, 7 APRIL 2026 Application for costs made pursuant to s 611 of the Act – application refused. Introduction [1] On 27 November 2025, Mr Shawn Taka Edward Goss (Mr Goss) lodged an application (the F8 Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which he asserted that the termination of his employment on 7 November 2025 by Cornerstone Dental Group Pty Ltd trading as ‘Dental Advance’ (Dental Advance) contravened his workplace rights. In its Form F8A response, Dental Advance raised a jurisdictional objection to the application, being that Mr Goss was not dismissed within the meaning of s 386 of the Act. [2] Following allocation of the matter to my Chambers, Directions were issued on 16 December 2025 for the filing of material in relation to Dental Advance’s jurisdictional objection. Resolution of the jurisdictional objection was required prior to the Commission exercising its powers under s. 368 of the Act and the matter listed for hearing on the 12 February 2026. In advance of which, both parties filed material in accordance with the Directions. [3] On 9 February 2026, Mr Goss filed a Form 50 – Notice of Discontinuance (the Notice of Discontinuance). The file was closed on 10 February 2025. [4] On 23 February 2026 Dental Advance filed an application seeking an order for costs against Mr Goss pursuant to s.611 of the Act. [5] Following a Mention conducted on 26 February 2026 at which only Dental Advance attended, a Notice of listing for a hearing and Directions for the filing of material were issued on 13 March 2026. The Respondent filed material in accordance with the directions, while Mr Goss failed to do so. As a consequence, I advised the parties on 30 March 2026 that I proposed to vacate the hearing and deal with the costs application ‘on the papers’. As neither party objected to that proposed course of action, I will now proceed to deal with Dental Advance’s costs application. [2026] FWC 1169 DECISION [2026] FWC 1169 2 Background to the Costs application [6] In his F8 Application, Mr Goss alleged that he was dismissed on 7 November 2025, of which dismissal he says he was notified by Dental Advance on 10 November 2025. At question 2.2 of the F8 Application, Mr Goss explained there had been an interaction between himself and a Director of Dental Advance, Dr Vernice Lo, on 7 November 2025 which led him to advise Dr Lo at the conclusion of their interaction that he would seek other work and would provide notice of his resignation once he had secured another job. [7] Mr Goss’ F8 Application further states that he left his shift early on 7 November 2025 and subsequently advised Dr Lo on 9 November 2025 that he would not be coming in the following day. Dr Lo acknowledged this advice in a text response on the same day. On 10 November 2025, Mr Goss notified Dental Advance by email of his resignation and that he would be attending his General Practitioner (GP) on 12 November 2026, would seek a certificate for ‘stress leave’ and following the GP appointment he would promptly provide an update and medical certificate. He further advised in his 10 November 2025 email that he would be unable to attend work that week. [8] Mr Goss further records in his F8 Application that on providing notice of his resignation to Dental Advance, he received a letter from Dr Lo on 10 November 2026 confirming his verbal resignation, said to have been given to Dr Lo on 7 November 2026 during the above-referred interaction. The letter from Dr Lo went on to state, that Mr Goss had left his shift immediately after their interaction on 7 November 2025, thereby abandoning his post and that his resignation took effect on 7 November 2025. Mr Goss went on to state in the F8 Application that Dental Advance falsely accused him of abandoning his role and also falsely claimed he had verbally resigned on 7 October 2025. [9] In its Form F8A – Employer Response to General Protections Dismissal Dispute Application (Form F8A) Dental Advance objected to the application proceeding, on the basis that Mr Goss was not dismissed within the meaning of s 386 of the Act. It states in at Question 3 in its Form F8A that Mr Goss voluntarily resigned from his employment on 7 November 2025. Such resignation taking immediate effect after he walked away from a workplace discussion with Dr Lo about his inappropriate phone usage during work hours. Dental Advance further stated in their Form F8, that the Applicant’s attempts to characterise his resignation as a dismissal was inconsistent with contemporaneous evidence and his own conduct. [10] Dental Advance further stated in their Form F8A that following the 7 November 2025 interaction with Dr Lo, Mr Goss left the premises immediately, exited all company group chats, and never returned, thereby abandoning his position in a manner consistent with immediate resignation. [11] Dental Advance further stated in their Form F8A, that the F8 Application was vexatious and was pursued for an improper purpose; namely, to extract a financial settlement in circumstances where no dismissal occurred and had no reasonable prospect of success. Dental Advance further stated in its Form F8A that it reserved its right to seek an order for costs pursuant to s 611 of the Act. [12] As earlier stated, directions were issued in relation to the substantive matter for the filing of material in respect of Dental Advance’s jurisdictional objection that Mr Goss was not [2026] FWC 1169 3 dismissed. Both parties filed material in accordance with those directions in advance of a hearing listed for 12 February 2026. On 9 February 2026, the Applicant filed the Notice of Discontinuance and advised as follows in the covering email; “……. I am writing regarding Fair Work Commission matter C2025/12149. Following receipt of legal advice, I wish to formally notify you that I am withdrawing my application in order to pursue an alternative course of action. Accordingly, I have lodged a Form F50 – Notice of Discontinuance. The timing of this decision was impacted by the closure of the Workplace Advice Service over the holiday period, as well as delays in securing an appointment due to increased demand for assistance. Thank you for your time and consideration. ……………” Basis for costs application [13] Dental Advance seeks an order against Mr Goss for legal costs totalling $750.00 based on an invoice received by it on 20 February 2026 from Courtesy Legal for ‘perusal of documents’ and ‘detailed consultation’ in relation to C2025/12149. [14] Dental Advance submit that it should have been reasonably apparent to Mr Goss once Dental Advance raised the jurisdictional objection in its Form F8A, that his application lacked reasonable prospects of success. It further contends that the jurisdictional objection was clearly raised and supported by contemporaneous material including Mr Goss’s resignation dated 10 November 2025. Mr Goss’ decision to discontinue his application prior to the hearing supports the inference that his application had no reasonable prospect of success. [15] Dental Advance further submit that Mr Goss also acted unreasonably following Dental Advance putting him on notice of its jurisdictional objection and foreshadowing that legal costs were being incurred, recovery of which may be sought. Dental Advance further states that those legal costs were incurred prior to Mr Goss withdrawing his application, and that it only seeks legal costs directly attributable to preparation of its jurisdictional objection and preparation for the hearing listed for 12 February 2026. While Dental Advance did not file a Form 53 notifying that it had engaged legal representation, it submits that is no barrier to recovery of costs on the authority of Lucas v Qantas Airways Limited1 (Lucas). Consideration [2026] FWC 1169 4 [16] As stated above, the application for costs by Dental Advance was filed pursuant to s. 611 of the Act which states as follows; “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)” [17] Based on the material filed by Dental Advance, the costs application made in relation to s 611(2) is not pressed on the basis that Mr Goss’s application was made vexatiously or without reasonable cause (s 611(2)(a). Rather, Dental Advance contends that the application had no reasonable prospects of success which should have been reasonably apparent to Mr Goss. Consequently, it is only the second limb of s 611(2) that I intend to deal with. [18] Before turning to consider the circumstances and facts in the present matter, it is useful to consider some relevant authorities. In Roberts v Quantum-Systems Pty Ltd2 a Full Bench of the Commission recently considered ss 375B & 611 in the context of an appeal of a decision by Cmr Simpson to decline to award costs under ss 375B or 611 in related matters before him which included a general protections application by Mr Roberts. The Full Bench relevantly observed as follows; “……. [23] The power of the Commission to award costs under either ss 375B(1) or 611(2) involves a two-stage process. The Commission must first determine whether the power to award costs is enlivened on the basis that it is satisfied that a party caused costs to be incurred because of an unreasonable act or omission (in the case of s 375B(1)(b)) or that the application was made or responded to vexatiously or without reasonable cause or in circumstances in which it should have been reasonably apparent that the application, or the response, had no reasonable prospects of success (in the case of s 611(2)(a) and (b)). [2026] FWC 1169 5 [24] If the power to order a person to pay costs does exist, the Commission is then required to consider whether it is appropriate in the circumstances to exercise the power to award costs. The use of the word “may” in both ss 375B(1) and 611(2) makes clear that the Commission retains a discretion as to whether to make an order for costs even if the circumstances permitting such an order to be made exist. In that respect, the power of the Commission to award costs mirrors the approach that has been adopted by the courts with respect to a limitation on the circumstances in which an order for costs can be made in s 570 of the Act. [25] It is relevant to record that the limitation placed on the discretion to award costs in proceedings under the Act, including in the Commission, serves an important purpose which informs its exercise. In Ryan v Primesafe [2015] FCA 8, Mortimer J (as her Honour then was) observed in relation to s 570: The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. [26] The consequence is that the discretion must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction and the case for its exercise should be clearly demonstrated. The same approach is, in our opinion, appropriate with respect to ss 375B(1) and 611(2). …………..” [19] In another Full Bench decision in Lucas v Qantas Airways Limited3 the Full Bench referred to and quoted with approval an earlier Full Bench decision in Baker v Salva Resources4 where the following was said in relation to s 611(2)(b) of the Act; “The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed: • ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis rather than a subjective test; and • a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable. (footnotes omitted)” [2026] FWC 1169 6 [20] It follows from the above-referred authorities that the first question that must be answered by me, is whether it should have been reasonably apparent to Mr Goss that his general protections application, had no reasonable prospect of success? If that question is answered in the affirmative, I am then required to determine whether to exercise my discretion to award costs against him as sought by Dental Advance, in full or in part. In doing so I am required to approach that task with exercise extreme caution and only reach such a conclusion in circumstances where the application is ‘manifestly groundless or so lacking in merit or substance to be not reasonably arguable’. Should it have been reasonably apparent to Mr Goss that his application had no reasonable prospects of success (s.611(2)(b))? [21] Dental Advance’s case in respect to the costs application, is pressed on the basis that Mr Goss resigned his employment on 7 November 2025 and that there is contemporaneous evidence to support that fact. It points to Mr Goss removing himself from certain workplace WhatsApp groups on 7 November 2025 as well as his resignation email of 10 November 2025. [22] Balanced against that ‘contemporaneous evidence’ relied on by Dental Advances is the text message from Mr Goss to Dr Lo sent on 9 Nov 2025 in which he advised he would not be attending work on Monday 10 November 2025. Dr Lo acknowledged that text message and in doing so made no reference to the ‘resignation’ alleged to have been proffered on 7 November 2025. While the Applicant subsequently tendered his resignation on 10 November 2025, it is plainly apparent from that email that he was conscious of being required to give notice of his resignation. This can be seen by his reference to obtaining and providing a medical certificate and update following his attendance at his GP on 12 November 2025. Those two pieces of communication with Dental Advance are not consistent with an immediate resignation having been tendered by him on 7 November 2025 as asserted by Dental Advance. [23] There were strongly competing versions of events advanced by Mr Goss and Dr Lo in their evidence filed for the substantive proceeding regarding the interaction on 7 November 2025. The contemporaneous supporting evidence is not conclusive as to which version of events ought to be preferred. On one view, Mr Goss indicated an intention to find alternate work and tender his resignation once he had done so, and that as the interaction with Dr Lo had caused him some distress he shortly after left work that day. On Dr Lo’s submitted evidence, Mr Goss advised her of his immediate resignation during their interaction and left the clinic without approval shortly thereafter on 7 November 2025. As the matter was discontinued prior to hearing, it was not possible to assess and test that conflicting witness evidence. [24] It is not in dispute that Mr Goss sent a resignation email to Dental Advance on 10 November 2026. What is in dispute is whether his resignation or dismissal took place on 7 November 2025 rather than 10 November 2025. If a resignation was not tendered on 7 November 2026, it might be found that the purported resignation was in fact a dismissal at Dental Advance’s initiative. It might in the alternative be established that Mr Goss verbally resigned on 7 November 2025, that it was immediately accepted by Dr Lo, and that Mr Goss’ 10 November 2025 resignation email simply confirmed what had taken place on 7 November 2025. Both cases are reasonably arguable on the material before me. [2026] FWC 1169 7 [25] Objectively assessed, and taking into account the strongly competing and untested evidence of both Mr Goss and Dr Lo on their 7 November 2025 interaction as well as the various contemporaneous documentary evidence available, I do not accept that the Mr Goss’ case was at the time his application was made ‘manifestly groundless or so lacking in merit or substance to be not reasonably arguable’. That is because it was reasonably arguable in my view that Mr Goss did not resign on 7 November 2025, that Dental Advance treated the exchange between Mr Goss and Dr Lo on 7 November 2025 as constituting a resignation, which brought the employment to an end at its initiative on 7 November 2025; rather than at Mr Goss’ initiative on 10 November 2025. [26] As to the other matters raised by Dental Advance, I do not accept that Mr Goss’ Notice of Discontinuance on 9 February 2026 supports an inference that his case had no reasonable prospects of success, which should have been reasonably apparent to him. It is not uncommon for parties to withdraw applications prior to formal hearing of a matter. That is unsurprising in the present circumstances where the Applicant was unable to obtain advice form the Workplace Advisory service until shortly before the hearing. As the Commission is not privy to the advice provided to Mr Goss, I am unwilling to speculate that the advice was to the effect that Mr Goss’ case lacked merit or was untenable. I decline to draw the inference sought by Dental Advance from Mr Goss’ discontinuance of the substantive proceedings. [27] As to Dental Advance’s reliance on it putting Mr Goss on notice in its Form F8A that it may pursue costs arising from its defence of the application, I do not regard that as relevant to what is required. What is required is an objective assessment of whether, at the time Mr Goss made his application, it should have been reasonably apparent to Mr Goss that his general protections application had no reasonable prospect of success. I have already found against Dental Advance’s contention on that point for the reasons set out above. In these circumstances, the fact that Dental Advance put Mr Goss on notice of its position on costs, is in my view, not relevant to the objective assessment required to be undertaken. [28] It follows from the foregoing that I am not persuaded that it should have been reasonably apparent to Mr Goss that his application had no reasonable prospect of success. In these circumstances the costs application of Dental Advance must fail. It is therefore unnecessary for me to consider whether to exercise my discretion in determining whether to make an order for costs against Mr Goss. Conclusion [29] For the reasons outlined above I am not satisfied that I should make an order for costs against Mr Goss pursuant to s 611 of the Act. Accordingly Dental Advance’s application seeking costs against Mr Goss is dismissed. DEPUTY PRESIDENT [2026] FWC 1169 8 On the papers Printed by authority of the Commonwealth Government Printer <PR798365> 1 [2023] FWCFB 147 2 [2026] FWCFB 4 3 [2023] FWCFB 147 4 [2011] FWAFB 4014, 2011 IR 174 at [10]; more recently followed in Vassallo v Easitag Pty Ltd [2021] FWCFB 3974.