Application for relief from unfair dismissal – breaches of safety policies and procedures - substantive application dismissed – application for costs – whether costs incurred because of an unreasonable act or omission – whether application had no reasonable prospects of success – indemnity costs refused – unreasonable act established – costs ordered from that date – party to party costs – further quantification adjourned until appeal outcome known.

[1] On 21 June 2019, I published a decision in Singh v Sydney Trains [2019] FWC 182 (the ‘Decision’). Briefly stated, I determined that Mr Singh’s dismissal by Sydney Trains as a Team Leader on 30 November 2016 was neither ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Fair Work Act 2009 (the ‘Act’) and dismissed his application for orders for reinstatement, continuity of employment and lost remuneration. I note that the Decision is subject to an appeal lodged by Mr Singh, which is listed before the Full Bench of the Commission in November 2019.

[2] On 4 July 2019, through its lawyers, Bartier Perry Lawyers, Sydney Trains filed an application for costs against Mr Singh, pursuant to ss 400A and 611 of the Act. This decision will determine that application (the ‘costs application’). On 16 July 2019, I listed the costs application for a directions hearing and conference. Both parties retained their legal representation for which permission was granted in the substantive proceedings, pursuant to s 596 of the Act. To the extent necessary, I continue the permission granted in 2017 for both parties to be represented by lawyers. Ms Amber Sharp, Solicitor with Ms Rachel Miller appeared for Sydney Trains and Mr Oshie Fagir, of Counsel, appeared for Mr Singh. For present purposes, I shall adopt the parties’ preferred approach to continue to refer to Sydney Trains as the respondent and Mr Singh as the applicant. Directions (subsequently amended) were issued and the parties agreed that the Commission should determine the costs application ‘on the papers’.

SUBMISSIONS

For the respondent

[3] An order for costs against the applicant in these proceedings, is sought on the following alternative bases:

(a) the applicant caused the respondent to incur costs because of an unreasonable act or omission in connection with the conduct or continuation of the matter: s 400A of the Act; and

(b) further, or in the alternative, it should have been reasonably apparent to the applicant that the application had no reasonable prospects of success: s 611(2)(b) of the Act.

[4] It was submitted that at all times following the filing of the original application, and in the two year period since, the respondent had made repeated, genuine and concerted efforts to resolve the proceedings. Reliance was had on an affidavit of Ms Amber Sharp, to which was annexed various, without…

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 Subeg Singh v Sydney Trains

Details

AGLC: Subeg Singh v Sydney Trains [2019] FWC 6620
Case: [2019] FWC 6620
Decision Date: 30 SEPTEMBER 2019

CaseChat Overview and Summary

Subeg Singh, a former employee of Sydney Trains, filed an application for relief from unfair dismissal, challenging his termination on the grounds that it was unjust. The dispute centred on allegations that Singh had violated safety policies and procedures, leading to his dismissal. The case was heard in the Fair Work Commission, the appropriate tribunal for employment-related disputes in Australia.

The legal issues before the court were whether Singh's dismissal was unfair, and if so, whether the employer should provide him with relief. Additionally, the court had to consider Singh's application for costs, assessing whether the employer's actions were unreasonable and whether the application had reasonable prospects of success. The court examined the evidence and arguments presented by both parties regarding the safety breaches and the fairness of the dismissal process.

In its decision, the court found that although Singh had indeed breached safety policies, his dismissal was not unfair. The employer had followed proper procedures, and the evidence did not support a claim of unfairness. Regarding the application for costs, the court determined that the employer had acted unreasonably, which justified awarding costs from a specific date. However, the court refused indemnity costs, deeming the application for relief from unfair dismissal as lacking reasonable prospects of success. The court ordered party-to-party costs and adjourned the further quantification of costs until the outcome of any appeal was known.

The Fair Work Commission dismissed the substantive application for relief from unfair dismissal. It ordered costs from the date of the unreasonable act and refused indemnity costs. The quantification of costs was deferred pending the resolution of any appeal.

Orders