NSW Trains v Mohammed Ayub  FWCFB 4801, (C2017/1585). VICE PRESIDENT CATANZARITI, VP, HAMILTON, DP, COMMISSIONER RIORDAN, C. 14 SEPTEMBER 2017.
Mr Ayub filed an appeal against a decision of Senior Deputy President Hamberger which dismissed an application by Mr Mohammed Ayub for an unfair dismissal remedy. The appeal also lost as Mr Ayub failed to show that it would be in the public interest to grant permission to appeal.
NSW Trains then lodged an application for costs, claiming that:
- Mr Ayub’s appeal application was made vexatiously.
- Mr Ayub’s appeal application was made without reasonable cause or without reasonable prospects of success.
- Mr Ayub unreasonably continued the matter.
- SDP Hamberger found that there was a valid reason for termination of employment.
- Mr Ayub has shown a tendency to pursue vexatious claims in the past and that Mr Ayub’s continued to press allegations and claims against NSW Trains which were previously identified as vexatious and unsubstantiated.
- 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 the Act.
- 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 conclude that there were no reasonable prospects of success.
NSW Trains attached a detailed itemised schedule of costs to the costs application, which shows that the total costs and disbursements claimed by NSW Trains is $3,384.00.
Mr Ayub’s response:
The FB noting that the two emails making up his submissions in response to the costs application did not address the grounds put forward in NSW Trains’ costs application. The submissions largely address the merits of the matter:
- Claims made against Mr Ayub were unsubstantiated, and NSW Trains never undertook a proper investigation of the allegations.
- NSW Trains did not follow a due process before dismissing Mr Ayub.
- Mr Ayub did nothing wrong.
- Due to lack of work and the difficulty in finding work at his age, Mr Ayub submitted that he does not have the ability to pay any costs.
The FB considered Nilsen v Loyal Orange Trust, in which North J said in relation to earlier provisions which enabled costs to be order if an application was ‘vexatious’…:
“The next question is whether the proceeding was instituted vexatiously. This looks to the motive of the applicant in instituting the proceeding. It is an alternative ground to the ground based on a lack of reasonable cause. It therefore may apply where there is a reasonable basis for instituting the proceeding. This context requires the concept to be narrowly construed. A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage: see Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.”
It is not enough to satisfy the requirement in s.611(2)(b) that an application be made without reasonable cause or without reasonable prospects for success that allows Mr Ayub’s case to be rejected: General Steel Industries Inc v Commissioner for Railways. As a Full Bench of the Commission said in A Baker v Salva Resources Pty Ltd:
“The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
- ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
- a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”
To gain permission to appeal, he needed to demonstrate some public interest such that permission to appeal should be granted which related to or arose out of his appeal grounds. The appeal grounds and his submissions claimed error in the evidentiary findings without providing any demonstration of error, let alone error which raised issues of public interest.
After the hearing, Mr Ayub sent correspondence to the Commission, in which he stated that the “only people who are in breach of conduct are the officials who backed each other in the cover up”. Mr Ayub sent further correspondence, whereby he alleged that it was an “underworld figure” that “plotted” his dismissal.
The FB finding:
- In exercising the discretion to order costs, the Commission must exercise its powers in a manner which is ‘fair and just’ and considers ‘equity, good conscience and the merits of the matter.’
- Decided not to award full costs, given the deliberate choice of NSW Trains to incur costs when it was aware that it was not necessary to put submissions, nor to appear. We also consider that it would be inappropriate to order no costs at all. We have decided to award 15% of the costs incurred by NSW Trains.
- Given the difficult financial position that Mr Ayub claims to be in, we are prepared to provide for these costs to be payable in instalments of 3 equal monthly payments.
$3,384.00 seems like a piddling amount to chase an ex-employee for. And maybe this is the real reason the FB only awarded 15%. That is, the FB had made its decision. The matter was concluded. So was it worth the time and expense for NSW Railways (a very large employer) for an outcome of three monthly payments of $169.20?
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