[2017] FWC 1106 [Note: An appeal pursuant to s.604 (C2017/4407) was lodged against this decision - refer to Full Bench decision dated 8 May 2017 [[2017] FWCFB 2491] for result of appeal.]


Fair Work Act 2009

s.394—Unfair dismissal

Mohammed Ayub
NSW Trains



Application for unfair dismissal remedy – valid reason for dismissal found – procedural fairness afforded – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Mohammed Ayub (the applicant) has applied under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy against his former employer, NSW Trains (the respondent).

[2] The applicant filed his application on 8 February 2016. The respondent filed a jurisdictional objection alleging the application was filed out of time. Notwithstanding this objection, the matter proceeded to conciliation, but was not settled. Following the unsuccessful conciliation, the jurisdictional objection was upheld. 1 Mr Ayub successfully appealed that decision2 and his original application for unfair dismissal remedy was referred to me for arbitration on 30 November 2016.

[3] I issued directions for the filing of evidence and written submissions. The matter was heard on 23 February 2017. The applicant was represented by Mr P Livers, solicitor, and the respondent by Mr A Woods, solicitor.

[4] The applicant tendered two witness statements, dated 10 January 2017 3 and 21 February 2017.4

[5] The respondent tendered:

[6] Only the applicant and Mr Austin were cross-examined.

The facts

[7] The following is a summary of the relevant facts, based on the evidence presented during the proceedings. I should indicate at the outset that I found the applicant to be an unpersuasive witness. During his cross-examination, he was evasive 10 and argumentative.11 He was often unwilling to answer the questions put to him12 or concede even the clearest of facts.13 By contrast, I found that the only witness for the respondent who was cross-examined (Mr Austin) gave his evidence in a clear and direct manner. Accordingly, where there is a conflict in the evidence of the applicant and that of the respondent, I generally prefer the latter. This is reflected in the following summary.

[8] The applicant had been employed by NSW Trains (and its predecessors) since 31 May 1982. Immediately prior to his dismissal, he was employed as a Customer Service Team Leader at Central Station. Over the course of his employment, he had received numerous sanctions for breaches of the respondent’s code of conduct, including (seven) fines, (six) suspensions and (three) final warnings. 14 When asked about one of the final warnings (relating to a failure to follow a direction from his manager, Mr Purcell) he said that he could not recall who gave him the warning or what it was about.

[9] The applicant’s answers to questioning from the Bench were to the effect that he did not recall much about the final warning he had received because he did not take it seriously:

[10] The applicant did, however, agree that final warnings were ‘a big thing’ by 2015. 17

[11] Mr Ayub had received regular training in the respondent’s (and its predecessors’) code of conduct. 18

[12] In around August 2014, the applicant was transferred to NSW Trains from Sydney Trains as part of the restructure of CityRail. Mr Austin was his manager from this time until his dismissal.

[13] In the afternoon of 16 December 2014, in the afternoon, the applicant asked Mr Austin whether he could take leave to travel to Fiji because his father-in-law was unwell. He indicated that he wished to take leave from 17 December 2014 for an indefinite period of time. Mr Austin and the applicant went to see the rostering team. They were informed that there were no NSW Trains relief staff available to cover his shifts until Sunday 21 December 2014. 19

[14] Mr Austin told the applicant that he would call the Customer Service Manager at Sydney Trains to see if he had any spare staff to cover the applicant’s shifts. He advised the applicant that if he could not find any cover, he would need to attend work the next day. 20

[15] Mr Austin and the applicant spoke again that night. The applicant said that the airline tickets for his journey had already been bought. Mr Austin told him that he did not have approved leave because there was no cover. He was told that he could have leave from 21 December 2014. 21

[16] Early the next morning, the Platform Manager, Mr Adra, rang Mr Austin and told him that the applicant had asked to have his shift covered. Mr Austin told Mr Adra that the applicant did not have cover yet. 22

[17] At around 7:00 am, Mr Adra rang Mr Austin again and said the applicant had left work. Mr Austin tried to call the applicant but he did not answer. He sent the applicant a text message and informed him that leaving work was unacceptable and asked when he would return to work. The applicant replied to Mr Austin that he thought Mr Lattouf was relieving him and that he could leave work. Mr Austin informed the applicant that no one had given him authority to leave. 23

[18] It appears that Mr Lattouf had agreed to cover the applicant’s shift that day. However, there were three other shifts (18-20 December 2014) for which cover needed to be found. Mr Austin, as the only person with the authority to do so, 24 had not authorised the applicant to leave.25

[19] The applicant left his car in one of the parking spots at Central Station reserved for staff working that day. The applicant had asked security to look after his car. 26 He did not return to work until 5 January 2015.27

[20] The Workplace Conduct and Performance Unit subsequently conducted an investigation conducted into this incident. The investigation concluded that the applicant had absented himself without approval or authorisation by NSW Trains, failed to comply with a reasonable lawful direction and instruction given by his supervisor, and left his personal vehicle in parking reserved for use by NSW Trains personnel during working hours. 28

[21] The applicant was advised on 1 May 2015 that a preliminary decision had been made to issue him with a final warning. 29

[22] On 19 May 2015, a Platform Manager, Mr Exner, rang Mr Austin and told him there had been an incident in which the applicant had abused another Platform Manager, Mr Singh, over the phone. 30

[23] Mr Austin then spoke to Mr Singh, who was visibly upset, crying and shaking. Mr Singh told him that the applicant had made comments such as ‘You should cut your hair and throw your turban away’ and ‘Punjabis are very good people but you are disgusting’. 31

[24] The applicant was suspended from work while an investigation was conducted into this incident. 32

[25] It appears from the applicant’s evidence that he was at home on a rostered day off when Mr Singh contacted him by phone to offer him an overtime afternoon shift. He was annoyed, as he had previously advised that he was only available to work morning shifts. 33 In his written reply to the investigation, he denied that he had told Mr Singh that he was ‘disgusting’, though he conceded during cross-examination that he had said this.34

[26] When asked at the hearing whether he accepted that calling someone disgusting was offensive, the applicant replied:

[27] On 25 May 2015, the applicant sent an email to Ms Hudson attaching a letter dated 22 May 2015. In the email, the applicant said that the letter was in response to the letter he had received in early May 2015 advising him that a preliminary decision had been made to issue him with a final warning in relation to his unauthorised absence in December 2014 and January 2015. 36

[28] The letter read:

[29] Ms Hudson responded by asking Mr Wain to organise a meeting with the applicant to discuss his allegations of bullying and harassment. 38 She also took steps to remove Mr Austin from his ‘two-up’ management role in respect of the applicant while the allegations were considered.

[30] On 2 June 2015, a meeting of the Disciplinary Review Panel determined that the applicant should be given a first and final warning for his unauthorised absence in December 2014 and January 2015. He received formal advice of this outcome on 17 June 2015. 39

[31] Mr Wain and Ms Bantin (who was at that time the Lead Business Partner, People and Corporate Services) met with the applicant on 11 June 2015. They told the applicant they took the allegations he had made very seriously, but that there was insufficient information in his letter to allow an investigation. In particular, they explained to the applicant that he needed to provide specific and detailed information in writing about the timing of incidents, what had occurred and whether there were any witnesses. Mr Wain gave the applicant the contact details of Mr Golding of the Workplace Conduct Investigation Unit in the event he wanted to make a formal complaint. 40

[32] Mr Wain and Ms Bantin referred the applicant to the respondent’s Bullying Policy and advised him that if he made allegations that were found to be vexatious and/or frivolous, disciplinary action may be recommended against him. 41

[33] The applicant did not provide any further information at that time concerning his allegations of bullying and harassment. 42

[34] On 26 June 2015, Ms Hudson received an email from the applicant attaching a letter dated 25 June 2015. This letter included the following:

[35] On 24 June 2015, the Workplace Conduct and Performance Unit referred the investigation report regarding the incident involving Mr Singh to the Disciplinary Review Panel (DRP) for review. The investigation found that the applicant had engaged in unacceptable behaviour by becoming abusive and making a number of inappropriate comments to Mr Singh. He was found to have breached his requirements under the Code of Conduct, Transport Prevention and Management of Bullying and Harassment Policy, and Transport Discrimination Free Workplace Policy. 44

[36] On 29 June 2015, the DRP made a preliminary decision of two weeks’ suspension without pay and counselling in Diversity and Inclusion Awareness. 45

[37] In an apparent response to this preliminary decision, on 23 July 2015 the applicant sent a letter to Ms Hudson. The letter included the following:

[38] On 11 August 2015, the DRP made a final recommendation that the applicant be suspended for two weeks as a result of the Singh incident. The DRP specifically rejected the applicant’s claim that he was set up with the phone call being on speaker and witnesses present. It considered this to be unlikely as it was the applicant who made the phone call to Mr Singh. 47

[39] The applicant did not make any formal complaint of bullying. 48 However, the Workplace Conduct and Investigation Unit (WCIU) reviewed the letter the applicant sent to Ms Hudson on 25 June 2015 in which he made allegations of bullying and harassment by Mr. Austin and ‘his’ Platform Managers ‘to discern which of his allegations were set out with enough specificity’ to be investigated.49

[40] Mr Golding, who conducted the review, considered that there was a general lack of detail in the letter, and therefore it was difficult to determine what the applicant was alleging had taken place. He considered the main allegations to be:

[41] Mr Golding subsequently investigated Mr Austin’s history and background (including various licences he held that required thorough police background checks). His investigation found that the allegation that Mr Austin was an associate of Mr Ibrahim was baseless. 51 It was decided that the allegations made by the applicant in relation to the WCIU lacked enough detail to be properly substantiated or investigated.52

[42] On 27 August 2016, Ms Hudson met with the applicant and his union representative to deliver the formal letter advising him of the two week suspension, discuss the arrangements for the suspension and counselling and explain the appeals process. At the meeting, he applicant became increasingly upset and said words to the effect of ‘I am being set up by Rob Austin. The higher I go the more corrupt you all are, including the workplace conduct people.’ The applicant said he thought Mr Singh, Mr Austin and Ms Hudson were corrupt, among others. Ms Hudson explained that the preliminary investigation had found no evidence of corrupt conduct. Ms Hudson told the applicant that if he had further details, witnesses or evidence of corrupt conduct she would request that the WCIU appoint an investigator to look into his complaints. 53

[43] On 28 August 2015, Ms Hudson emailed Brendon Gillies from the WCIU requesting that an interview be conducted to investigate the applicant’s allegations. 54

[44] Given that the applicant’s allegations included complaints that the WCIU itself had corruptly investigated his complaints, it was more appropriate for an independent investigator to conduct an investigation. On 8 September 2015, the WCIU engaged Peter Moroney of Nemesis Consulting to investigate the applicant’s allegations of misconduct. Mr Moroney was asked to undertake a fact-finding interview with the applicant, identify any potential witnesses to claims made by the applicant and advise WCIU whether there was sufficient information to proceed with a formal investigation into the concerns raised by the applicant. 55

[45] On 11 September 2015, the Director, People and Corporate Services, John Hussey, wrote to the applicant, referring to his letters of 22 May, 25 June and 23 July 2015. He noted that in each case, the applicant had made comments and allegations against other staff members, NSW Trains management and members of the DRP that were ‘unsubstantiated, offensive, inaccurate and racially discriminative’. Excerpts from the various letters were included. Mr Hussey wrote:

[46] On 23 September 2015, the applicant phoned Ms Hudson. The applicant requested that she send him all correspondence about the allegations against him. Ms Hudson advised him that he already had copies of that correspondence. The applicant became angry and raised his voice and said words to the effect of ‘the higher I go the more corrupt you all are’. As the applicant refused to stop yelling, Ms Hudson ended the call. 57

[47] On 6 October 2015, the DRP met to consider the applicant’s conduct in sending the letters with the allegations about other staff members. The DRP made a preliminary recommendation that the applicant be dismissed. The DRP noted that the applicant had made no response to Mr Hussey’s letter of 11 September 2015. 58

[48] Ms Hudson wrote to the applicant on 16 October 2015 advising him of the DRP’s preliminary recommendation. The applicant was given 14 days to respond to the proposed outcome. 59 The applicant was subsequently granted an extension to file his response. This was at least in part to ensure that the Nemesis report was available to the DRP prior to it making its final decision.60

[49] On 13 November 2015, the WCIU referred the Nemesis report to the DRP. The report found that all the allegations made by the applicant about Mr Austin, Mr Singh and Ms Hudson were unfounded. It concluded:

[50] On 16 November 2015, the applicant’s union, the Australian Rail, Tram & Bus Industry Union, NSW Branch (RTBU), provided a response to the DRP’s preliminary decision on his behalf.

[51] This response included the following:

[52] The DRP met to consider its final recommendation concerning the applicant’s conduct in sending the May, June and July letters. The DRP took into account:

[53] The DRP noted the applicant had made his allegations repeatedly, but had never provided any evidence to back them up. Nor had he shown any remorse or demonstrated any intention to improve his behaviour in the future. Both the WCIU and Nemesis had found that the allegations were unsubstantiated. The DRP also took into account the applicant’s overall disciplinary history and the 2014 and 2015 matters in particular. The DRP made the final recommendation to dismiss the applicant. 64

[54] The RTBU sought a review of the DRP’s final decision on the applicant’s behalf. On 13 January 2016, the Transport for NSW Disciplinary Panel reviewed the decision and determined that the decision to dismiss should be affirmed. The Disciplinary Panel sent a letter to the applicant on 14 January 2016 advising him of this decision. 65


[55] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable, the Fair Work Commission (the Commission) is required to take into account the factors outlined in s.387 of the FW Act. These are:

[56] I do not consider it necessary to determine whether the applicant’s unauthorised absence in December 2014 and January 2015 or his behaviour in the Mr Singh incident were valid reasons for his dismissal. While they are relevant to demonstrate that the applicant’s disciplinary record was far from unblemished prior to the May, June and July letters, they were not ultimately the reasons the respondent relied upon to terminate his employment.

[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:

[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.

[63] The respondent is a large State-owned corporation with considerable human resource management expertise at its disposal. It followed an elaborate process before finally deciding to dismiss the applicant. I can find nothing of substance to criticise in that process. He was given very clear notice of the allegations against him and given ample opportunity to respond to those allegations, which he took. The respondent did its best to investigate the applicant’s allegations.

[64] While it is appropriate to have regard to the applicant’s long employment history with the respondent, a consideration of that history must also include his extremely poor disciplinary record. Moreover, neither prior to his dismissal nor during the proceedings themselves did the applicant indicate any contrition, or that he might be inclined to change his behaviour.

[65] As I have said previously:

[66] However, that principle assumes the ‘whistleblower’ is acting in good faith. It is not a licence for employees to act in the irresponsible manner adopted by the applicant.

[67] The applicant’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.

tle: seal - Description: Seal of the Fair Work Commission with Member's signature.



Mr P Livers of Slattery Thompson appeared for the Applicant.

Mr A Wood of Henry Davis York appeared for the Respondent.

Hearing details:



February 23.

 1   [2016] FWC 4623.

 2   [2016] FWCFB 5500.

 3   Exhibit A1.

 4   Exhibit A2.

 5   Exhibit T1.

 6   Exhibit T2.

 7   Exhibit T3.

 8   Exhibit T4.

 9   Exhibit T5.

 10   E.g. PN195-PN198, PN207, PN243, PN286.

 11   See e.g. PN162-PN174.

 12   See e.g. PN212.

 13   See e.g. PN216-PN228, PN238, PN249, PN254, PN266, PN268, PN271, PN280.

 14   Exhibit T4 pp 174-5.

 15   PN312-PN313.

 16   PN317-PN318.

 17   PN348.

 18   Exhibit T5 [13].

 19   Ibid [19].

 20   Ibid [20].

 21   Ibid [24].

 22   Ibid [26].

 23   Ibid [27].

 24   As conceded by the applicant at PN472, PN482, PN491 and PN516.

 25   Exhibit T5 [28].

 26   Ibid [29].

 27   Ibid [32].

 28   Exhibit T4 pp 4-13.

 29   Exhibit T2 [14].

 30   Exhibit T5 [35].

 31   Ibid [36].

 32   Ibid [40].

 33   PN735.

 34   PN704.

 35   PN708.

 36   Exhibit T2 [18].

 37   Exhibit T4 p 83.

 38   Exhibit T4 p 81.

 39   Exhibit T2 [24]-[27].

 40   Exhibit T3 [6]-[8].

 41   Ibid [10].

 42   PN530.

 43   Exhibit T4 pp 229-30.

 44   Ibid pp 148-56.

 45   Ibid pp 244-6.

 46   Ibid pp 248-9.

 47   Ibid p 252.

 48   Exhibit T1 [7].

 49   Ibid [9].

 50   Ibid [10].

 51   Exhibit T4 pp 261-2.

 52   Exhibit T1 [20].

 53   Exhibit T2 [50]-[52].

 54   Ibid [55].

 55   Exhibit T1 [24]-[27]; exhibit T4 p 274.

 56   Exhibit T4 pp 278-80.

 57   Exhibit T2 [58]; exhibit T4 p 283.

 58   Exhibit T2 [60]-[61]; exhibit T4 p 286.

 59   Exhibit T2 [62]; exhibit T4 pp 287-9.

 60   Ibid [63]-[66].

 61   Ibid [68]; exhibit T4 p 370.

 62   Exhibit T4 pp 326-9.

 63   Exhibit T2 [71]-[72].

 64   Ibid [73]-[76].

 65   Exhibit T4 p 340.

 66   Ibid p 390; PN618-PN661.

 67   Chrys Chrysostomou v Autohaus Classic BMW t/as Trivett Classic Pty Ltd [2007] AIRC 869.

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