Rafi Najib v MSS Security Pty Limited - [2025] FWC 1893

[2025] FWC 1893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rafi Najib
v

MSS Security Pty Limited

(U2025/4701)

COMMISSIONER MCKINNON

SYDNEY, 2 JULY 2025

Application for an unfair dismissal remedy – application filed prematurely – whether to waive irregularity – whether dismissed

On 16 April 2025, Mr Najib applied for an unfair dismissal remedy under section 394 of the Fair Work Act (Cth) (the Act) in relation to his employment with MSS Security Pty Limited (MSS Security). Under s.394, “a person who has been dismissed” may apply to the Commission for an unfair dismissal remedy. The dismissal must have taken effect by the time the application is made, which must be within 21 days “after” the dismissal took effect, or within such further period as the Commission allows.

There is a dispute in this case about whether Mr Najib had been dismissed at the time that he applied to the Commission. Mr Najib relies on s.386(1)(b) of the Act to submit that he was forced to resign on 16 April 2025 because of MSS Security’s conduct toward him. MSS Security denies that Mr Najib was forced to resign and submits that the dismissal took effect immediately when the outcome of a disciplinary process was notified to Mr Najib on 28 April 2025.

The question is whether the application was made prematurely and not in accordance with the Act. There is a separate question as to whether the application should be dismissed, or whether the irregularity of an application filed prematurely should be waived under s.586.

I find that Mr Najib had not been dismissed at the time he applied to the Commission for an unfair dismissal remedy. The application is not made in accordance with the Act. In the circumstances, I have decided not to waive the irregularity, and the application will be dismissed. These are my reasons.

Relevant facts

On 28 March 2025, MSS Security commenced a disciplinary process by making six allegations against Mr Najib about unexplained absence from work on 24, 27 and 28 March. Mr Najib was stood down with pay and directed to attend a meeting on 1 April 2025. Mr Najib did not attend the meeting as directed on 1 April 2025.

At 3.28pm on 3 April 2025, Mr Najib wrote to MSS Security. Although he did not respond in substance to the allegations, he concluded his email with:

“Given these ongoing issues and the impact they have had on my ability to perform my role effectively, I see two viable options moving forward:

1. Transfer me to a different department where I am not required to work under the current management.
2. Accept this as my official resignation.
Please confirm how you wish to proceed.”

At 4.16pm on 4 April 2025, MSS Security replied by email to Mr Najib. It advised that it had “lost confidence and trust” in his performance, determined this to be “irreparable” and so declined to consider his transfer to a different department. The email advised…

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.

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Details

Case: [2025] FWC 1893
Decision Date: 2 JULY 2025

CaseChat Overview and Summary

Rafi Najib applied to the Fair Work Commission for an unfair dismissal remedy in relation to his employment with MSS Security Pty Limited. Mr Najib claimed that he was constructively dismissed on 16 April 2025, while MSS Security submitted that the dismissal took effect on 28 April 2025 when the outcome of a disciplinary process was notified to Mr Najib. The court was required to determine whether the application was made prematurely and in accordance with the Fair Work Act 2009 and whether the irregularity of an application filed prematurely should be waived under s.586. The court found that Mr Najib had not been dismissed at the time he applied to the Commission for an unfair dismissal remedy, and the application was not made in accordance with the Act. The court decided not to waive the irregularity, and the application will be dismissed. The court found that Mr Najib had not been dismissed at the time he applied to the Commission for an unfair dismissal remedy. The court concluded that the application was made prematurely and not in accordance with the Act. The court found that it was not in the interests of justice to waive the irregularity of an application filed prematurely. The court dismissed the application under s.587(1)(a).

Mr Najib on his own behalf.Ms K Black for MSS Security Pty Limited.Sydney (via Microsoft Teams)July 1.

Orders