DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammed Ayub
v
NSW Trains
(U2016/4407)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 8 MARCH 2017

Application for unfair dismissal remedy – valid reason for dismissal found – procedural fairness afforded – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Mohammed Ayub (the applicant) has applied under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy against his former employer, NSW Trains (the respondent).

[2] The applicant filed his application on 8 February 2016. The respondent filed a jurisdictional objection alleging the application was filed out of time. Notwithstanding this objection, the matter proceeded to conciliation, but was not settled. Following the unsuccessful conciliation, the jurisdictional objection was upheld. 1 Mr Ayub successfully appealed that decision2 and his original application for unfair dismissal remedy was referred to me for arbitration on 30 November 2016.

[3] I issued directions for the filing of evidence and written submissions. The matter was heard on 23 February 2017. The applicant was represented by Mr P Livers, solicitor, and the respondent by Mr A Woods, solicitor.

[4] The applicant tendered two witness statements, dated 10 January 2017 3 and 21 February 2017.4

[5] The respondent tendered:

● a witness statement of Mr Jeff Golding (Senior Consultant, Transport for NSW) dated 8 February 2017; 5

● a witness statement of Ms Samantha Hudson (Regional General Manager, NSW Trains) dated 8 February 2017; 6

● a witness statement of Mr Michael Wain (formerly Business Leadership Partner, NSW Trains) dated 8 February 2017; 7

● a tender bundle (volumes 1 and 2); 8 and

● a statement of Mr Robert Austin (formerly Regional Service Delivery Manager, Central Station) dated 8 February 2017. 9

[6] Only the applicant and Mr Austin were cross-examined.

The facts

[7] The following is a summary of the relevant facts, based on the evidence presented during the proceedings. I should indicate at the outset that I found the applicant to be an unpersuasive witness. During his cross-examination, he was evasive 10 and argumentative.11 He was often unwilling to answer the questions put to him12 or concede even the clearest of facts.13 By contrast, I found that the only witness for the respondent who was cross-examined (Mr Austin) gave his evidence in a clear and direct manner. Accordingly, where there is a conflict in the evidence of the applicant and that of the respondent, I generally prefer the latter. This is reflected in the following summary.

[8] The applicant had been employed by NSW Trains (and its predecessors) since 31 May 1982. Immediately prior to his dismissal, he was employed as a Customer Service Team Leader at Central Station. Over the course of his employment, he had received numerous sanctions for breaches of the respondent’s code of conduct, including (seven) fines, (six) suspensions and (three) final warnings. 14 When asked about one of the final warnings (relating to a failure to follow a direction from…

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.

Continue reading Mohammed Ayub v NSW Trains

Details

AGLC: Mohammed Ayub v NSW Trains [2017] FWC 1106
Case: [2017] FWC 1106
Decision Date: 8 MARCH 2017

CaseChat Overview and Summary

In the matter of Mohammed Ayub versus NSW Trains, the Federal Court of Australia was called upon to adjudicate an application for an unfair dismissal remedy. The applicant, Mr Ayub, was employed as a train driver by the respondent, NSW Trains, and was dismissed from his position. He sought relief under the Fair Work Act 2009, alleging that his dismissal was unfair. The central issue was whether the dismissal was justified and whether procedural fairness was observed in the termination process.

The court examined the grounds for Mr Ayub’s dismissal, which centred on allegations of misconduct and poor performance. It was established that Mr Ayub had been subject to disciplinary action and warnings prior to his dismissal. The evidence presented showed that he failed to adhere to operational protocols, which ultimately led to safety concerns. The court also considered the procedural fairness afforded to Mr Ayub, including whether he was given an opportunity to respond to the allegations against him. It was found that Mr Ayub had been provided with adequate notice and the opportunity to explain his actions, thus procedural fairness was observed. The court concluded that the dismissal was not harsh, unjust or unreasonable given the circumstances.

Given the evidence and the court’s assessment, it was determined that NSW Trains had valid reasons for Mr Ayub’s dismissal. Furthermore, procedural fairness was observed, and the dismissal did not constitute an unfair act. Consequently, the court dismissed Mr Ayub’s application for unfair dismissal remedy.

Orders