Roy Sabag v D&T Hydraulics and Engineering Pty Ltd - [2025] FWCFB 28

[2025] FWCFB 28

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Roy Sabag
v

D&T Hydraulics and Engineering Pty Ltd

(C2024/9265)

DEPUTY PRESIDENT MILLHOUSE

DEPUTY PRESIDENT O’NEILL
COMMISSIONER CONNOLLY

MELBOURNE, 7 FEBRUARY 2025

Appeal against decision [2024] FWC 3336 of Deputy President Lake at Brisbane on 3 December 2024 in matter number U2024/7256 – permission to appeal refused.

Mr Roy Sabag has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] of Deputy President Lake issued on 3 December 2024. In the decision, the Deputy President determined that the respondent to the appeal, D&T Hydraulics and Engineering Pty Ltd, had a valid reason to dismiss Mr Sabag for not following lawful and reasonable instructions and demonstrating a pattern of obstinate behaviour. However, the Deputy President concluded that Mr Sabag’s dismissal was harsh and unjust, and therefore unfair. The respondent was ordered to pay Mr Sabag an amount of compensation equal to $20,000 gross, plus superannuation as a remedy.

Notwithstanding this outcome, Mr Sabag filed a notice of appeal. The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

Decision under appeal

Mr Sabag was employed by the respondent as a mechanical engineer. He was dismissed from his employment with effect on 3 June 2024. The respondent advanced two reasons for the dismissal: broadly, that Mr Sabag created a serious and imminent risk to the health and safety of his colleagues and further, refused to carry out a lawful and reasonable instruction to move office space.[2]

In the decision, the Deputy President rejected the first reason advanced by the respondent.[3] However, the Deputy President relevantly concluded that the instruction that Mr Sabag move his desk to sit with his team was a lawful and reasonable instruction with which Mr Sabag refused to comply.[4] The Deputy President concluded that there was a valid reason for the dismissal (s 387(a)), noting as follows:[5]

“Considering the entire factual matrix of the Applicant’s conduct during the previous few days, including his refusal to move his desk, refusal to teach others the Roy Method and the questions that management had about whether his work was achieving the engineering department’s objectives, there was a valid reason for dismissal.”

As to the balance of matters to be considered under s 387 of the Act, the Deputy President relevantly found that Mr Sabag was not informed of the reason, nor given an opportunity to respond, prior to his dismissal and was terminated ‘on the spot.’[6] Accordingly, the Deputy President concluded that the dismissal was harsh and unjust, but not unreasonable having regard to Mr Sabag’s “belligerent attitude.”[7]

Finding that reinstatement was an inappropriate remedy (nor was it sought), the Deputy President considered an award of compensation to be appropriate. Adopting the approach to assessing compensation in Sprigg v Paul Licensed Festival Supermarket (Sprigg),[8] and by reference to s 392 of…

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] FWCFB 28
Decision Date: 7 FEBRUARY 2025

CaseChat Overview and Summary

In the matter of Roy Sabag v D&T Hydraulics and Engineering Pty Ltd, the Fair Work Commission was tasked with deciding whether to grant permission for an appeal against a decision issued by Deputy President Lake. Mr Sabag, the appellant, sought to challenge the Deputy President's determination that he was fairly dismissed for not following lawful and reasonable instructions and displaying obstinate behaviour, and that the remedy awarded to him was appropriate. The respondent, D&T Hydraulics and Engineering Pty Ltd, opposed the appeal, arguing that it should not be granted as it did not meet the stringent public interest test required under section 400 of the Fair Work Act 2009.

The key legal issues before the Commission were whether the grant of permission to appeal was in the public interest, and whether the appeal raised an arguable case of appealable error. The Commission considered the Deputy President's reasoning in concluding that there was a valid reason for Mr Sabag's dismissal, that the dismissal was unfair due to procedural deficiencies, and that the compensation awarded was appropriate. The Commission found that the Deputy President's conclusion that there was a valid reason for the dismissal was reasonably available on the evidence, and that the Deputy President had correctly calculated the compensation by taking into account the misconduct and other factors.

The Commission concluded that the appeal did not raise an arguable case of appealable error, and that the grant of permission to appeal would not be in the public interest. The appeal was focused on Mr Sabag's contention that he did not engage in misconduct, but the Commission found that the Deputy President's finding was reasonably available on the evidence. The appeal also challenged the compensation calculation, but the Commission found that the Deputy President's approach was consistent with Full Bench authority and that the compensation order was appropriate. The appeal did not raise any issue of law or principle that might have a wider application.

Permission to appeal is refused.

Orders