Sacked, he kept his bullying case going and was ordered to pay costs

Joseph Salama was a transport officer with Sydney Trains from 28 August 2013, and a union delegate and health and safety representative. In May 2017 he applied for a stop-bullying order naming four managers. He alleged they had harassed and bullied him, including by threatening disciplinary action over what they said were false allegations he had made.

On 14 August 2017 Sydney Trains dismissed him. The Commission noted that the dismissal related, among other things, to the employer’s finding that he had made false bullying allegations against those managers. Mr Salama went to the Federal Court with a separate general protections claim, alleging he had been dismissed because he made the bullying application.

Nine days after the dismissal, the respondents’ lawyers wrote to his lawyer. With his job gone, they said, there could be no continuing risk of bullying at work, so the Commission had no power to make an order; if he did not withdraw, they would rely on the letter to seek their costs. There was no reply. Instead he asked the Commission to put the bullying case on hold until the Federal Court case was decided. In April 2018 the Commission refused, and dismissed his application as having no reasonable prospects of success.

In the Commission each side usually pays its own costs. But Deputy President Sams found that an earlier decision was “on all fours” with Mr Salama’s case, so it “should have been reasonably apparent to him, and his legal advisors” that keeping the application alive could not succeed. He ordered Mr Salama to pay the respondents’ costs from 19 December 2017 on the ordinary party–party basis, refusing the higher indemnity costs they asked for. The Commission never made a finding on whether Mr Salama had been bullied.