DECISION

Fair Work Act 2009
s 789FC - Application for an order to stop bullying

Mr Joseph Salama
v
Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting
(AB2017/280)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 APRIL 2018

Application for an order to stop bullying – various other related proceedings – disciplinary action – dismissal of applicant – Federal Court proceedings – application to adjourn or stay proceedings until outcome of Federal Court matter – costs potentially ‘thrown away’ – prejudice to applicant – whether risk of further bullying when applicant no longer at work – no prejudice to applicant if he is reinstated in the future – prejudice lies with the four named individual respondents – lengthy and indeterminate delay – costs not properly quantified – no guarantee of a costs order – no risk of further bullying – no reasonable prospects of success – application dismissed.

BACKGROUND

[1] On 21 May 2017, Mr Joseph Salama (‘Mr Salama’ or the ‘applicant’), a Transport Officer employed by Sydney Trains (‘Sydney Trains’ or the ‘respondent’), filed an application which sought orders from the Fair Work Commission (the ‘Commission’) to stop bullying, pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’). The application named four management persons, who the applicant alleged had harassed and bullied him while he was carrying out his duties as a Union delegate and Health and Safety Representative. It was said that this harassment included threats of disciplinary action in relation to alleged false allegations made against him.

[2] In accordance with the Commission’s usual protocols, I convened a conference of the parties on 15 July 2017. At the conference, the applicant appeared with Mr Skundric, a fellow Union delegate and Ms A Sharp, Solicitor, Bartier Perry, was granted permission to appear for Sydney Trains and the named respondents, pursuant to s 596 of the Act. No agreement was reached during the conference as to the substance of the bullying claims and the relief sought by Mr Salama. On 21 June 2017, the Commission issued directions for a three day hearing of the substantive application from 25 to 27 September 2017. However, by application (the ‘strike out application’), dated 5 July 2017, Sydney Trains, sought orders dismissing the substantive application, pursuant to s 587 of the Act and consequent orders for costs, pursuant to s 611 of the Act. As a result, I suspended my earlier directions and issued further directions for the determination of the ‘strike out’ application and deferred any costs application until the primary application had been determined.

[3] However, the disciplinary processes referred to above continued. On 24 July 2017, the applicant was issued with a ‘show cause’ letter giving notice that Sydney Trains was considering terminating his employment due to his failure to improve his behaviour and conduct. On 1 August 2017, the applicant filed a s 372 General Protections application in relation to the ‘show cause’ letter (Matter…

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: [2018] FWC 1845
Decision Date: 11 APRIL 2018

CaseChat Overview and Summary

The applicant, Mr Joseph Salama, filed an application in the Local Court to stop bullying against him by his employer, Sydney Trains. The matter has a complicated history, involving various related proceedings, including disciplinary action and the applicant's dismissal. Mr Salama subsequently initiated Federal Court proceedings against Sydney Trains. He sought an adjournment or stay of the Local Court proceedings until the conclusion of the Federal Court matter, arguing that his costs in the Local Court would be potentially "thrown away" if he were to lose in the Federal Court, and that he would be prejudiced by not having the Local Court proceedings resolved in the interim. Mr Salama also expressed concern about the risk of further bullying when he was no longer employed by Sydney Trains.

The court had to decide whether there was a risk of prejudice to the applicant if the proceedings were not stayed, and whether the applicant had reasonable prospects of success in the Federal Court proceedings. The court noted that the prejudice to the applicant would only arise if he were reinstated in the future, and that any prejudice lay with the four named individual respondents. The court also considered the lengthy and indeterminate delay that would result from staying the proceedings, the lack of proper quantification of the costs potentially "thrown away", and the absence of a guarantee of a costs order in the Federal Court. The court found that there was no risk of further bullying to the applicant and that he did not have reasonable prospects of success in the Federal Court proceedings.

The court dismissed the application to stay the proceedings, finding that there was no risk of prejudice to the applicant and no reasonable prospects of success in the Federal Court proceedings. The court emphasised that the prejudice to the applicant would only arise if he were reinstated in the future, and that any prejudice lay with the four named individual respondents. The court also noted that the application to stay the proceedings would result in a lengthy and indeterminate delay, that the costs potentially "thrown away" were not properly quantified, and that there was no guarantee of a costs order in the Federal Court.

No orders were made in relation to the application to adjourn or stay the proceedings.

Orders