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USyd wins battle over legal costs of unfair dismissal case

Andrew Bell reports.

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The University of Sydney has won a battle for legal costs of more than $100,000 arising from a Fair Work dispute brought by a researcher.

Dr Simin Maleknia, who was employed by the University under a research grant, alleged that the University unfairly dismissed her from research employment in 2014.

The case was dismissed at the first hurdle by the Fair Work Commission because it was not filed within the statutory time limit of 21 days.

While Dr Maleknia argued her employment had continued past the expiry date of the contract, the Commission found that unilaterally turning up for work did not extend employment.

A series of appeals on this point followed. Essentially, the University argued the contract had naturally expired and not been extended.

The Federal Circuit Court described further proceedings brought to it as “vexatious”, after dismissing the appeal because Dr Maleknia did not appear.

In the Court of Appeal, the judge described Maleknia’s case before it as “manifestly and irretrievably hopeless”. Dr Maleknia did not appear at the hearing, citing ill health.

The courts have ordered Dr Maleknia to pay the University’s legal costs. Honi is aware that the legal costs are at least $100,000, but are likely to be many thousands of dollars higher.

Dr Malkenia was employed under a contract which expired on 31 December 2013. While Dr Maleknia had continued to turn up for work, there was insufficient evidence that this was based on any belief that her grant had been extended.

It is unclear on what basis the conclusion of the contract would be described as unfair.

In one stage of the proceeding, a judge of the Federal Circuit Court had to recuse himself, because he held a teaching position at USyd.

The judge disclosed the position at the beginning of the proceedings, yet wrote that Dr Malkenia’s objection “was raised 20 minutes into a hearing where Ms Maleknia perceived that I have decided an issue against her”.

A spokesperson for the University of Sydney said, “The proceedings between the University and Dr Maleknia have been resolved. The University does not anticipate any further proceedings relating to the matter.”

The University did not comment on the final size of their legal costs, or on the status of their application to receive those costs as a lump sum payment.

Dr Maleknia is a specialist in the “application and development of mass spectroscopy and analysis in the environment, biological and chemical sciences”, according to her online biography at UNSW.

Despite extensive efforts, Honi was not able to reach Dr Maleknia for comment.