REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harpreet Dhillon
v
Sydney Trains
(U2016/11589)

COMMISSIONER MCKENNA

SYDNEY, 19 JUNE 2017

Application for relief from unfair dismissal – Application for costs – Costs application dismissed

[1] On 16 February 2017, I dismissed an application made by Harpreet Dillon pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he had sought an unfair dismissal remedy. The relevant decision (Dhillon v Sydney Trains[2017] FWC 553) describes matters including my findings relevant to Mr Dhillon’s application. It is unnecessary to summarise the matters described in the earlier decision, albeit I will touch upon some aspects.

[2] Mr Dhillon’s former employer and the respondent to the substantive application for an unfair dismissal remedy, Sydney Trains, subsequently made an application with respect to an order for costs in its favour.

[3] On 6 June 2017, the day of the hearing of the costs application, I announced the costs application was dismissed. I also said would publish reasons - which now follow.

Summary of submissions advanced by Sydney Trains concerning its costs application

[4] Sydney Trains sought costs on the following bases:

(a) Mr Dhillon caused Sydney Trains to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter within the meaning of s.400A of the Act;

(b) further, or in the alternative, within the meaning of s.611(2)(a) of the Act, the application was made vexatiously or without reasonable cause;

(c) further, or in the alternative, it should have been reasonably apparent to Mr Dhillon that the application had, within the meaning of s.611(2)(b) of the Act, no reasonable prospect of success.

[5] In so submitting, through its solicitors, Sydney Trains relied on matters set-out in certain affidavit material, which described matters such as to chronology; relevant materials; and settlement-related matters (including foreshadowing by Sydney Trains of a costs-related application). The submissions for Sydney Trains referred, among other matters, to certain aspects of the earlier decision, including at paragraphs [29], [30], [31], [33] and [40].

[6] In advancing its application for an order for costs, Sydney Trains also referred to matters including extracts from the Explanatory Memorandum in relation to what became s.400A of the Act and the consideration by the Commission in a costs application in Rainshield Roofing Pty Ltd v Just Relations – Consultants & Paerau[2014] FWC 3777 (“Rainshield”) at [33], [34] and [47] – a case submitted to have, essentially, some relevant parallels as to considerations in relation to costs. Here, Sydney Trains noted, I made a finding Mr Dhillon had “dissembled”. Sydney Trains submitted that in circumstances where the reason for dismissal was theft, and the Commission found the conduct occurred, it must follow that the application was made without reasonable cause, and that filing the application was an unreasonable act in connection with the matter and refusing to settle was an unreasonable act in connection with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 3106
Decision Date: 19 JUNE 2017

CaseChat Overview and Summary

Harpreet Dhillon, an employee, brought an application against Sydney Trains, her former employer, seeking relief from an unfair dismissal. The matter was heard in the Fair Work Commission (FWC). Dhillon alleged that her dismissal was harsh, unjust, or unreasonable, and sought reinstatement and compensation. Sydney Trains opposed the application, asserting that the dismissal was justified and in accordance with the relevant employment laws.

The legal issues before the FWC encompassed whether Dhillon's dismissal was indeed harsh, unjust, or unreasonable, and if Sydney Trains was entitled to a costs order against Dhillon for the unsuccessful application. The FWC needed to assess the evidence and arguments presented by both parties to determine the fairness of the dismissal and whether Dhillon's application was frivolous or vexatious.

After evaluating the evidence, the FWC found that Dhillon's dismissal was not harsh, unjust, or unreasonable. Consequently, the FWC dismissed her application for relief from unfair dismissal. Additionally, the FWC considered the costs application, concluding that Dhillon's application was not frivolous or vexatious, and thus, declined to grant Sydney Trains the costs order.

Orders