Mr Mohammed Ayub v NSW Trains - [2017] FWCFB 2491

[2017] FWCFB 2491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Mohammed Ayub
v
NSW Trains
(C2017/1585)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER RIORDAN

SYDNEY, 8 MAY 2017

Appeal against decision [2017] FWC 1106 of Senior Deputy President Hamberger at Sydney on 8 March 2017 in matter number U2016/4407.

[1] On 8 March 2017 Senior Deputy President Hamberger handed down a decision 1 dismissing an application by Mr Mohammed Ayub for an unfair dismissal remedy.

[2] On 24 March 2017 Mr.Ayub filed an appeal against this decision. Mr.Ayub alleged that the Commission erred in finding that there was a valid reason for termination of employment, that the disciplinary process was procedurally fair, and other reasons.

Decision under appeal

[3] In the decision under appeal the Commission found that there was a valid reason for termination of employment which included findings that Mr.Ayub made baseless allegations as a response to complaints against him:

“[57] The applicant was dismissed because of the various unsubstantiated allegations the applicant made against a number of his colleagues in his letters of 22 May, 25 June and 23 July 2015. These allegations included that Mr Austin could not be trusted because he had underworld associations, that Mr Austin had gained his position because of the corruption of other managers, that Mr Singh was corrupt, that the WCIU was corrupt, that the DRP was also corrupt and that Mr Austin and the WCIU had bullied, victimised and harassed the applicant.

[58] There is no doubt that these are extremely serious allegations. Despite this, at no time either before the Commission proceedings, or during them, did Mr Ayub proffer the least shred of evidence to back them up. There is absolutely no evidence before me that any of the accused persons are corrupt in any way, nor is there any evidence that any of them bullied, harassed or victimised the applicant.

[59] Mr Ayub submitted that he was only replying to the allegations made against him during the disciplinary process. His attitude seemed to be that if someone made an allegation against him he was entitled to respond with his own allegations – however baseless:

‘If you are going to make a complaint against me, I will make a complaint against you.’

[60] That is nonsense. It is reasonable to infer that Mr Ayub made the allegations vexatiously, not because he had some rational basis for believing them to be true, but in order to divert attention away from his own misconduct.

[61] No employer should be expected to tolerate this sort of behaviour. It was potentially extremely damaging to the well-being and morale of a number of Mr Ayub’s colleagues. It also meant that the respondent had to waste significant resources on a wild goose chase trying to investigate a number of baseless allegations.

[62] I am satisfied that the respondent had a valid reason to dismiss the applicant.” (references omitted)

[4] The Commission also made findings with respect to…

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] FWCFB 2491
Decision Date: 8 MAY 2017

CaseChat Overview and Summary

Mr Mohammed Ayub has appealed against a decision made by Senior Deputy President Hamberger at Sydney on 8 March 2017 in matter number U2016/4407. The respondent to the appeal is NSW Trains. The dispute arose when Mr Ayub alleged that NSW Trains had unfairly dismissed him. This appeal pertains to the decision of the Fair Work Commission to dismiss Mr Ayub’s application for unfair dismissal remedies.

The primary legal issue before the court was whether the Fair Work Commission had erred in law in dismissing Mr Ayub’s unfair dismissal claim. Specifically, the court had to determine if the Commission had appropriately applied the principles of fairness as set out in the Fair Work Act 2009. Mr Ayub contended that the dismissal was unfair because he had not received the requisite procedural fairness, and that the decision to dismiss him was not supported by a valid reason.

In evaluating the appeal, the court examined the process and reasoning employed by the Commission in dismissing Mr Ayub’s claim. The court found that the Commission had not erred in its application of the law. It held that the procedural steps taken by NSW Trains were adequate and that the reasons provided for the dismissal were both valid and reasonable. The Commission's decision was upheld as it correctly balanced the principles of fairness against the employer's right to manage its workforce.

As a result of this determination, the appeal was dismissed, and the original decision of the Fair Work Commission was affirmed. The court’s decision brings finality to the dispute, confirming that NSW Trains acted within its rights in dismissing Mr Ayub.

Orders