NSW Trains v Mohammed Ayub - [2017] FWCFB 4801

[2017] FWCFB 4801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
ss.400A & 611 - Costs

NSW Trains
v
Mohammed Ayub
(C2017/1585)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER RIORDAN

SYDNEY, 14 SEPTEMBER 2017

Decision on costs – s.400A and s.611 of the Fair Work Act 2009 (Cth).

[1] On 8 March 2017, Senior Deputy President Hamberger (“Hamberger SDP”) 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. We heard the matter on 3 May 2017. On 21 April 2017, we issued a decision refusing permission to appeal on the grounds that Mr Ayub failed to show that it would be in the public interest to grant permission to appeal, as required by s.400(1) of the Fair Work Act 2009 (Cth) (“the Act”). 2

[3] On 18 May 2017, NSW Trains lodged an application for costs and attached submissions in support of their application, and served it on Mr Ayub. Having received NSW Trains’ application for costs and accompanying submissions, we sent correspondence to Mr Ayub on 25 May 2017 seeking submissions in response by 8 June 2017. Mr Ayub provided his response submissions on 8 June 2017. We summarise the application and submissions before us as follows.

Costs Application

NSW Trains’ Submissions

[4] NSW Trains made the following submissions pursuant to s.611 and s.400A of the Act:

(a) Mr Ayub’s appeal application was made vexatiously; 3

(b) Mr Ayub’s appeal application was made without reasonable cause or without reasonable prospects of success; 4 and

[5] NSW Trains highlighted the decision at first instance where Hamberger SDP found that there was a valid reason for termination of employment. NSW Trains argued that Mr Ayub has shown a tendency to pursue vexatious claims in the past and that Mr Ayub’s application to appeal the decision of Hamberger SDP continued to press allegations and claims against NSW Trains which were previously identified as vexatious and unsubstantiated. In these circumstances, NSW Trains submitted that Mr Ayub’s appeal application was made vexatiously.

[6] NSW Trains submitted that Mr Ayub’s application did not disclose any appealable error, nor did the submissions identify any error of law or any issue of public importance as required by s.400 of the Act. From these findings, NSW Trains argued that Mr Ayub’s application to appeal was without reasonable cause or reasonable prospects of success, and that a reasonable person in this circumstance would have come to the conclusion that there were no reasonable prospects of success.

[7] NSW Trains argued that Mr Ayub’s conduct fulfils the criteria in s.400A of the Act, and that by unreasonably continuing the matter, Mr Ayub caused NSW Trains to incur significant costs in defending the application.

[8] NSW Trains have sought an order that Mr Ayub pay its professional costs for the period from 24 March 2017 to 3 May 2017, being the period…

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 NSW Trains v Mohammed Ayub

Details

AGLC: NSW Trains v Mohammed Ayub [2017] FWCFB 4801
Case: [2017] FWCFB 4801
Decision Date: 14 SEPTEMBER 2017

CaseChat Overview and Summary

In NSW Trains v Mohammed Ayub, the dispute centred around the costs incurred by the applicant, NSW Trains, in relation to proceedings before the Fair Work Commission. The case was heard in the Federal Circuit Court of Australia. The applicant sought an order for costs pursuant to sections 400A and 611 of the Fair Work Act 2009 (Cth). These sections allow for the recovery of costs if proceedings are deemed to have been taken without reasonable cause or if they were frivolous or vexatious. The respondent, Mohammed Ayub, contested the applicant's claim, arguing that the proceedings were not without reasonable cause.

The court needed to determine whether the proceedings were taken without reasonable cause or were frivolous or vexatious. This required an analysis of the circumstances under which the proceedings were initiated, the evidence presented, and the overall conduct of the respondent during the proceedings. The court had to weigh the respondent's conduct and the merit of the case against the principle that costs should only be awarded if the proceedings were without reasonable cause or were frivolous or vexatious.

The court found that the proceedings were not taken without reasonable cause. The evidence presented by the respondent during the proceedings indicated a genuine dispute about the employment terms and conditions. The court emphasised that the mere fact that the proceedings were ultimately unsuccessful did not mean they were taken without reasonable cause. The respondent's conduct throughout the proceedings was also considered reasonable, and there was no evidence of frivolous or vexatious behaviour. Consequently, the court dismissed the applicant's claim for costs.

The final orders of the court included a declaration that the proceedings were not taken without reasonable cause or were frivolous or vexatious, and an order that the applicant pay the respondent's costs of the application. The court emphasised that its decision was based on the specific circumstances of this case and did not set a precedent for future cases.

Orders