Roy Sabag v D&T Hydraulics and Engineering Pty Ltd
[2025] FWCFB 28
•7 FEBRUARY 2025
| [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 | 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 the Act, the Deputy President concluded that Mr Sabag would likely have continued working with the respondent – his employer of approximately one year – for a further 12-week period.[9] Mr Sabag’s earnings in this period were discounted, having regard to the finding that Mr Sabag had engaged in misconduct and demonstrated a pattern of obstinate behaviour.[10] The Deputy President therefore ordered the respondent to pay to Mr Sabag the sum of $20,000 gross, plus superannuation.[11]
Grounds of appeal
In the section of the notice of appeal which seeks a description of the decision under appeal, Mr Sabag provides as follows (unedited from original):
I did not perform the misconduct of refusing to teach others. The respondent has failed to prove that he requests me to teach, the details of this request, timeframes, who should be taught and what, a prove that I refused, a prove of his actions after I refused etc. There is no need to rely on witnesses or what someone is saying in a case like that. The respondent has also failed to provide an email requesting me to teach others or an email that express dissatisfaction of me “refusing to teach”. The responded has fail to provide any such evidence. [Explained more in 2, Grounds for appeal]
I did not perform the misconduct of refusing to move my desk to the war-room. [Explained more in 2, Grounds for appeal]
Since there was no misconduct the remedy amount should not be reduced on those grounds. [Explained more in 2, Grounds for appeal]
The Respondent was not “likely to fire me within three months”. On the contrary I was due to being promoted. The remedy should not be limited to 12 weeks on that assumption. The max compensation of 26 weeks is appropriate. In Kurt’s words: “For a 1 year period I beleive there is plenty Roy will be successful at and he will add extremely high value work…” [Explained more in 2, Grounds for appeal]
There should not be reduction in remedy for contingencies on the basis of the “possibility of the Applicant engaging in future misconduct.” [Explained more in 2].
There should not be reduction in remedy for the “possibility that the Applicant would resign or be terminated if he elected to travel to Israel again” [Explained more in 2].
My salary was expected to increase by a factor of 60/38 for 3 months. For those 3 months The compensation should be calculated from a weekly salary of 60/38*2500=3947.368 AUD plus super. 13*3947.368+13*2500=83815.784 AUD plus super.
Since the respondent was found to be lying and exaggerating in his other claims, they should be penalized or at least discredit for their other claims.
The respondent witnesses Kurt and Stiann have been colluding with each other and should be disqualified. They have used the same template with the same few first paragraphs. They have even used the same rare phrasing such as “Roy prompt himself on the window ledge”.
Kurt is not an independent witness; he is the main plaintiff. He the one making the claims. He needs others to support him and should not be used as support for his own claims. It creates a situation scenario of “Kurt is right because Kurt says that he is right”
Stiann should be disqualified or discredit as a witness. Stiann is the main beneficiary of me being fired. He becomes the most experienced drafter in D&T. Stiann visa depends on the respondent business and therefore need to please them. Kurt is Stiann boss and has great influence on Stainn’s day to day and salary. Stainn’s and his family life depends on Kurt and the respondent’s business. Therefore, Stiann is not an impartial witness. Stiann is Merly echoing what his boss Kurt tell him and what the HR manager expect him to say.
Note that the respondent did not like the fact that I work from home. Also note that caring for family is a protected reason under the Fair Work Act. Working from home while caring for my family, cannot be used a reason to fire me or that I would have been fired.”
Mr Sabag elaborates on these matters in the section of the notice of appeal which asks, “What are the grounds for your appeal?” In summary, Mr Sabag sets out a timeline of events, background information into his role and the “team,” his working from home period, his interactions with the respondent at the 29 May 2024 meeting, submissions rejecting the respondent’s contention that he refused to teach his working method to others or refused to move his work into the “war room”, the matters discussed at the termination meeting on 3 June 2024, a response to the respondent’s alleged “underlying concerns” about Mr Sabag’s performance, and submissions challenging the “lies and exaggerations” of the respondent. Further, this section:
(a)rejects the finding in the decision that Mr Sabag engaged in any misconduct; and
(b)challenges the Deputy President’s conclusions with respect to the calculation of compensation on the basis that:
(i)Mr Sabag “would have” accepted a new offer of employment that increased his salary and did not decline it’;
(ii)it is not likely that Mr Sabag’s employment would have ended within 12 weeks; and
(iii)having disputed that he engaged in misconduct, the Deputy President should not have made a deduction from his compensation sum based on misconduct.
Mr Sabag submits that it is in the public interest to grant permission to appeal including because the decision involves ambiguous or unclear interpretation of the unfair dismissal laws, and the public interest is served by ensuring fairness in the treatment of employees, including in the assessment of compensation. Mr Sabag says that the decision may be precedent setting, including because of its implications for vulnerable workers, and the establishment of a clear legal framework promotes certainty and consistency. Further, Mr Sabag clarified at the hearing before us that the matters supporting his request for a “stay” of the decision under appeal in fact comprise grounds of appeal which Mr Sabag requests the Full Bench to consider.
Permission to appeal – principles
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is “a stringent one.”[12]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error or a preference for a different result.[14] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[15] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[16] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We do not consider that the grant of permission to appeal would be in the public interest. Of significance in this matter, Mr Sabag was successful in his application for an unfair dismissal remedy. The Deputy President determined that Mr Sabag’s dismissal was harsh and unjust, and therefore unfair. Mr Sabag has not challenged this finding in the appeal.
Having regard to Mr Sabag’s written and oral submissions, we apprehend that at the heart of Mr Sabag’s appeal is his contention that he did not engage in misconduct by refusing to follow a lawful and reasonable instruction of the respondent, nor did he demonstrate a pattern of “obstinate behaviour.” Mr Sabag objects to the Deputy President’s finding that this gave rise to a valid reason for his dismissal, including because of the damage such finding may occasion to Mr Sabag’s reputation. Mr Sabag further contends that the Deputy President should not have made a deduction for this misconduct in his assessment of the amount of compensation to be awarded as a remedy.
The Deputy President was required to consider whether there was a valid reason for Mr Sabag’s dismissal. The reason need not be the reason advanced or given by the respondent at the time of the dismissal.[17] The decision records the Deputy President’s valid reason conclusions and, having regard to the material that was before the Commission during the proceedings at first instance, we consider that such a finding was reasonably available to the Deputy President on the evidence and in the exercise of his discretion.
Notwithstanding there being a valid reason, the Deputy President concluded that the dismissal was unfair in light of the identified procedural deficiencies in the process adopted by the respondent. The Deputy President ordered compensation as a remedy. The appeal does not challenge the decision to award compensation. Rather, the contention is that the compensation order should have been higher, absent any deduction for misconduct.
The Deputy President’s approach to the calculation of compensation was consistent with Full Bench authority in Sprigg[18] and appropriately conducted by reference to s 392 of the Act. An arguable case of error is not disclosed by reason of the Deputy President’s conclusion that Mr Sabag’s future anticipated employment period amounted to no longer than 12 weeks. There appears to be an evidentiary foundation for this conclusion having regard to the Deputy President’s findings about Mr Sabag’s workplace conduct and the overall period of employment. Being satisfied that the misconduct of Mr Sabag contributed to the respondent’s decision to dismiss, the Deputy President was obliged by s 392(3) of the Act to reduce the amount he would have otherwise ordered, and no arguable error arises in this respect. We have not been taken to any material which demonstrates that Mr Sabag’s employment contract was varied to increase his weekly salary such as to demonstrate that the compensation calculations are attended by any arguable error.
We are not otherwise satisfied that the balance of matters advanced by Mr Sabag at [7] of this decision, and developed at [8], demonstrate an arguable case of appealable error. The alleged errors of fact advanced by Mr Sabag regarding the brief description of the respondent’s operations or Mr Sabag’s duties do not rise to the level of significance as required by s 400(2) of the Act.
Mr Sabag’s application for an unfair dismissal remedy was determined on the basis of its own particular facts and resulted in Mr Sabag achieving a successful outcome. The appeal does not raise any issue of law or principle that might have a wider application. Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
R Sabag, on his own behalf.
C Joy, of Craig Joy Workplace Consulting, for the respondent.
Hearing details:
2025.
By video (using Microsoft Teams).
February 5.
[1] [2024] FWC 3336 (Decision)
[2] Decision at [36]
[3] Decision at [45]-[47]
[4] Decision at [50]-[51]
[5] Decision at [53]
[6] Decision at [56]-[58], [70]
[7] Decision at [72]-[73]
[8] (1998) 88 IR 21
[9] Decision at [81]-[82]
[10] Decision at [87]
[11] Decision at [92]
[12] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[13] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[15] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[17] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at pp.373, 377-378
[18] (1998) 88 IR 21
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