Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2025] FWC 2335 of Deputy President Masson at Melbourne on 13 August 2025 in matter number U2025/3948 - permission to appeal refused

[1] Firas Raghib has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Masson issued on 13 August 2025 ( [2025] FWC 2335) which dismissed Mr Raghib's application for an unfair dismissal remedy. The matter was listed for permission to appeal only. The parties consented to the Full Bench determining the matter without holding a hearing, and we are satisfied that it can be adequately determined without the parties making oral submissions (see s 607(1) of the Act).

[2] In order for a person to have been unfairly dismissed, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable. Section 387 requires the Commission, in considering whether it is so satisfied, to take into account the matters in ss 387(a) to (h). The Deputy President found that the respondent, Stantec Australia Pty Ltd, had two valid reasons to dismiss Mr Raghib (s 387(a)). First, the Deputy President found that Mr Raghib inappropriately sought to contact a female coworker who had made a complaint of sexual harassment against him. Secondly, the Deputy President found that Mr Raghib had cynically fabricated a text message from the complainant to himself for the purpose of discrediting her. The Deputy President made credit findings against Mr Raghib, stating that he regarded Mr Raghib as dishonest and untrustworthy. The Deputy President further found that Mr Raghib's conduct amounted to serious misconduct, and that the valid reasons for dismissal weighed in favour of a finding that the dismissal was not unfair.

[3] In respect of the other mandatory considerations in s 387, the Deputy President found that Mr Raghib had not been notified of the valid reasons for his dismissal (s 387(b)) or given an opportunity to respond to them (s 387(c)), and that these matters weighed in favour of a conclusion that the dismissal was unfair. The Deputy President found that there had been no refusal by the employer to allow a support person to be present at discussions relating to dismissal (s 387(d)), which favoured a conclusion that the dismissal was not unfair. He found that the consideration in s 387(e), which relates to warnings for poor performance, was not relevant, and that the matters in ss 387(f) and (g), which concern the size of the respondent's enterprise and the availability of human resources specialists, were neutral factors. The Deputy President made findings about various matters said by Mr Raghib to be other relevant considerations under s 387(h), including that Mr Raghib's claims of bullying and misconduct by senior staff were no more than unsupported allegations, and concluded that none of the matters raised by Mr Raghib weighed in favour of a conclusion that the dismissal was unfair. The Deputy President concluded that the procedural deficiencies in the disciplinary process were comfortably outweighed by the gravity of Mr Raghib's misconduct, and that the dismissal was not harsh, unjust or unreasonable, and was therefore not unfair.

[4] An appeal may only be brought with the permission of the Commission under s 604(1). Section 400 of the Act applies to this appeal, because the Commissioner's decision was made under Part 3-2 of the Act. Section 400(1) states that the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) states that an appeal on a question of fact can only be made on the ground that there was a significant error of fact. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 (Makin) at [27]).

[5] In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.

Grounds of appeal and public interest contentions

[6] Mr Raghib's notice of appeal advanced 7 grounds. The first submitted that the Deputy President had erred in finding that he had fabricated the text message based only on inference rather than physical evidence, and that the error was material because dishonesty was the central basis of the Deputy President's conclusion. The second ground of appeal was that despite the seriousness of the allegations against him the Deputy President failed to apply the standard in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and instead based his evidentiary conclusions on uncorroborated assertions. We find neither of these grounds to be arguable. First, factual findings made by a member at first instance should generally stand on appeal unless they are shown to be wrong by incontrovertible facts or are glaringly improbable (see Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 (AUE) at [37] - [39]). There is no arguable case to this effect here. On the contrary, the Deputy President's factual findings are carefully reasoned and in our view were plainly open to him on the evidence. We note that despite the reasoned articulation of his credit findings against Mr Raghib, the Deputy President found a third allegation against Mr Raghib - that he had engaged in coercive control and predatory sexual behaviour towards multiple young women - to be unsubstantiated. We consider the Deputy President's decision displays an orthodox application of the Briginshaw principles. We find no apparent merit in the first and second appeal grounds.

[7] The third ground of appeal contended that the Deputy President failed to give weight to unchallenged medical certificates confirming Mr Raghib's incapacity at the time of his dismissal, and that this led to an erroneous finding that it was permissible to dismiss him during his medical leave. But contrary to Mr Raghib's apparent assumption, there is no reason why a person cannot be dismissed for serious misconduct during a period of medical leave. We fail to see how the question of Mr Raghib's capacity could have affected the outcome. We see no merit in this appeal ground.

[8] Mr Raghib's fourth appeal ground submitted that the termination letter, and evidence that his replacement had been appointed prior to the conclusion of the show cause process, demonstrated that the respondent had predetermined his dismissal, and that the Deputy President erred by failing to treat this as a denial of procedural fairness in connection with ss 387(b) and (c). But the Deputy President concluded, favourably to Mr Raghib, that the respondent had not complied with these provisions, and that the procedural deficiencies were comfortably outweighed by his serious misconduct. It appears to us that Mr Raghib simply seeks to characterise the procedural flaws identified by the Deputy President in an additional way. In any event, we do not consider that any alleged error of fact in this regard could be characterised as a significant one. Nor is it arguable that this matter could have altered the result, given the Deputy President's conclusions about Mr Raghib's serious misconduct.

[9] The fifth appeal ground contends that the Deputy President erred by stating that the outcome of the disciplinary process would have been the same even if Mr Raghib had been notified of the valid reasons for dismissal and afforded an opportunity to respond to them. Mr Raghib said that this was 'legally erroneous' because an unfair dismissal process cannot be validated by 'hindsight speculation'. He cited the decision in Crozier v Palazzo Corporation Pty Ltd 98 IR 137 (Crozier). Mr Raghib misunderstands the significance of this case. The Deputy President did not 'validate' procedural unfairness. He concluded that despite the procedural deficiencies, the dismissal was not unfair, just as the Full Bench did in Crozier.

[10] The sixth ground of appeal contended that the Deputy President engaged in an ex parte discussion with the respondent's representative regarding the evidence, which created an apprehension of bias. This was not explained in the notice of appeal. In correspondence to the Commission concerning the appeal book, Mr Raghib stated that during the hearing on 4 August 2025, the Deputy President convened a meeting in chambers with the respondent about the evidence, from which he was excluded, and that the transcript would provide evidence of this. But the audio recording of the hearing reveals nothing of the kind. This ground of appeal is an unsubstantiated assertion and presents no arguable case of error.

[11] The seventh appeal ground stated that the Deputy President relied on the investigation conducted by Carter Newell Lawyers, who also acted for the respondent in the proceedings, and that this 'dual role' involved a conflict of interest in the investigation and gave rise to an apprehension of bias. This does not make sense. First, the Deputy President made his own factual findings about what occurred. He did not simply rely on the conclusions of others. Secondly, there is no conflict of interest, or bias, associated with a firm conducting a factual inquiry for a client and then representing that client before the Commission.

[12] Mr Raghib submitted that his appeal grounds raised important public interest issues and matters of general application. We disagree. The matter involves the particular circumstances of a single employee who was found to have committed two counts of serious misconduct, based on clearly reasoned factual findings, and who was the subject of adverse credit findings. The decision does not manifest an injustice. We do not consider that the appeal raises matters that engage the public interest, whether of the kind referred to in Makin or otherwise.

[13] The grounds of appeal do not disclose an arguable case of error, and we do not consider, for the purposes of s 400(1), that it is in the public interest to grant permission to appeal. Permission to appeal is therefore refused.

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