Step Up Disability Services Pty Ltd v Muaz Khan
[2025] FWCFB 128
•26 JUNE 2025
| [2025] FWCFB 128 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Step Up Disability Services Pty Ltd
v
Muaz Khan
(C2025/3160)
| VICE PRESIDENT GIBIAN | SYDNEY, 26 JUNE 2025 |
Appeal against decision of Commissioner Crawford in [2025] FWC 922 made on 2 April 2025 – Employee with a disability employed under the supported wage system – Employee dismissed following dispute between the employer and the employee’s father – Appeal against finding of unfairness and order to reinstate the dismissed employee – Whether error in finding that dismissal was harsh – Whether error in exercise of discretion with respect to reinstatement – Permission to appeal refused.
Introduction
Step Up Disability Services Pty Ltd (Step Up) seeks permission to appeal and to appeal under s 604(1) of the Fair Work Act 2009 (the Act) against a decision of Commissioner Crawford to make an order that it reinstate Muaz Khan.[1] The order requires that Muaz Khan be reinstated on 1 July 2025. The appeal was heard on an expedited basis given the impending effective date of the order for reinstatement. At the hearing of the appeal, Step Up was represented by Ms Lee, Operations Manager, and Muaz Khan was represented by his guardian and father Mr Zaffar Khan.
At the conclusion of the hearing of the appeal on 20 June 2025, the Full Bench advised the parties that it had decided to refuse Step Up permission to appeal. An order reflecting that decision issued later that day.[2] These are the reasons for our decision.
Step Up provides support services for individuals with disabilities. This includes programs such as the Young Adults Sports Program and Employment Support services. The programs Step Up provides are funded through the National Disability Insurance Scheme (the NDIS). That funding is provided in accordance with Service Agreements. A Service Agreement which is between a participant in the NDIS and a service provider outlines the terms and conditions under which support services will be provided and the payments that apply to the provision of those services. Muaz Khan participated in programs run by Step Up. Zaffar Khan is Muaz Khan’s father and legal guardian. Zaffar Khan had authority to sign Service Agreements on behalf of his son.
Step Up also assists persons with disabilities by providing employment under the Supported Wage System (the SWS). Muaz Khan started work for Step Up as a part-time Assistant Mentor in August 2022. He was employed under the SWS. He worked eight hours per week. Muaz Khan was dismissed following a dispute between his father and Step Up over the signing of a new Services Agreement. Muaz Khan brought an application for an unfair dismissal remedy in relation to that dismissal.
Decision of the Commissioner
At first instance, Commissioner Crawford found that the dismissal was unfair. The Commissioner found the dismissal was harsh due to the consequences it had for Muaz Khan who lost a rewarding and niche role through no fault of his own. The Commissioner also found that Muaz Khan did not personally do anything wrong, and the dismissal arose solely due to his guardian’s actions. Additionally, the economic and personal consequences of the dismissal on Muaz Khan were found to be significant, making the decision to terminate his employment disproportionate in the circumstances.[3]
Having found that the dismissal was unfair, the Commissioner went on to consider whether it was appropriate to reinstate Muaz Khan. Step Up resisted an order for reinstatement on the ground that it has filled the Assistant Mentor role and so it could not reinstate Mr Khan.[4] The Commissioner was not convinced that there were operational reasons which made reinstatement inappropriate, noting that there was no financial data provided supporting the claim.[5] The Commissioner also noted that the dispute over the signing of the new Services Agreement with Zaffar Khan had been resolved which would assist in funding Muaz Khan’s position.
The Commissioner ordered that Muaz Khan be reinstated and made his order effective from 1 July 2025. As the decision was published on 2 April 2025, this gave Step Up approximately three months to ensure arrangements were in place for Mr Khan to resume employment. No order was made with respect to lost remuneration.
The appeal
Section 604(1) of the Act does not provide an unqualified right to appeal a decision of the Commission. An appeal may only proceed 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. As a result of the operation of s 400(1), the Commission must not grant permission to appeal unless satisfied 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”.[6]
The task of assessing whether the public interest is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error or a preference for a different result.[8] 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.[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[10] Furthermore, an application for permission to appeal is not to be regarded as 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.[11] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
The parties were unrepresented in relation to the appeal. Step Up’s notice of appeal is discursive. It asks the Full Bench to review the Commissioner’s decision. The review is sought under two broad headings. The first seeks a review of the finding that the dismissal was harsh. The second asks for a review of the decision to reinstate.
Under the first heading Step Up contends that the Commissioner failed to take into account the conduct of Zaffar Khan who, it is contended, failed to engage appropriately with Step Up by signing the revised NDIS service agreement. The submissions filed and the oral submissions made at hearing did not advance the argument beyond the matters identified in the notice. The contention that the Commission failed to take into account the apparent conflict with Zaffar Khan cannot be accepted. It is clear that the Commissioner did take Zaffar Khan’s conduct into account.[12] The Commissioner was critical of Zaffar Khan’s conduct and found, based on his conduct, that there was a valid reason for the dismissal of Muaz Khan.[13] The Commissioner decided, however, that it was harsh to dismiss Muaz Khan on the basis of his guardian’s conduct in all of the circumstances.[14]
Step Up’s challenge to the harshness finding is without merit. It does not identify error in the Commissioner’s decision making. Instead, it is an invitation to disagree with the conclusion of the Commissioner. Step Up has not established an arguable case of appealable error and, as an appeal cannot succeed without the identification of error, we are not satisfied it is in the public interest to grant permission to appeal on this ground.
The second broad heading in Step Up’s notice of appeal contends that reinstatement was not feasible due to its financial situation and that the Commissioner failed to take that fact into account in ordering reinstatement. It also contends that there had been a loss of trust and confidence between Step Up and Zaffar Khan such that reinstatement was inappropriate and would be unworkable.
The Commissioner’s decision recorded Step Up’s assertions about operational reasons but observed that those assertions were not supported by financial information nor detailed evidence about its operational requirements.[15] Step Up sought to tender financial information on appeal on the basis that it was not given the opportunity to provide that information before the Commissioner. That information was received to assist us in understanding the submissions made in relation to remedy. The material indicated that Step Up is currently operating at a loss and is facing significant financial challenges and operational constraints. A confidentiality order was made with respect to that material at the request of Step Up. For that reason, although the material was considered by the Full Bench in considering the appropriateness of the Commissioner’s conclusion on remedy, we will not describe the details of Step Up’s financial position in this decision.
The further material relied upon by Step Up did not go so far as to identify what impact the reinstatement of Muaz Khan would have on the business. The submissions in that regard rose no higher than an assertion that any additional cost associated with reinstating Muaz Khan would be detrimental to the business. Ms Lee, Step Up’s Operations Manager, who appeared for the appellant, was unable to quantify the additional costs associated with reinstating Muaz Khan. The information provided, and the submissions made, were of a general nature and did not address the contention that was being raised that reinstatement would have an adverse impact on the business. As the Commissioner observed, Muaz Khan works only eight hours per week and is paid at a supported wage rate. We do not accept that the further material relied upon by Step Up demonstrates an arguable case that the Commissioner erred by not accepting that the negative operational or financial impact for Step Up will be to an extent that justifies a conclusion that reinstatement is inappropriate.
Step Up also contended that it had been denied the opportunity to put forward information in relation to its financial position at first instance because no procedural invitation or direction was given to file financial documents. We do not accept that Step Up was denied procedural fairness in relation to the provision of financial information. The material sought to be tendered on appeal could have been put before the Commissioner at first instance. Directions were issued dor Step Up to file any submissions or evidence upon which it intended to rely. The Commission is not required to specifically invite or direct parties to file evidence with respect to any matter that might be relevant to its decision.[16] The Commission ordinarily decides matters before it on the basis of the material presented by the parties. In any event, the Commissioner did make inquiries in the course of the hearing in relation to the basis upon which Step Up said reinstating Mauz Khan would be unsustainable for the business.[17]
Step Up also contended that the Commissioner erred in ordering that Mauz Khan be reinstated in circumstances in which there had been a breakdown of trust and confidence with Muaz Khan’s father and guardian. The Commissioner dealt with the argument put again on appeal that there was a loss of trust and confidence with Muaz Khan’s guardian Zaffar Khan such that reinstatement was inappropriate.[18] The Commissioner concluded that while the potential for further conflict between Step Up and Zaffar Khan weighed in favour of a finding that reinstatement was inappropriate, he was confident that Zaffar Khan will approach the way in which he raises concerns on his son’s behalf differently in the future. The Commissioner saw and heard the parties give evidence and was in a better position than the Full Bench to assess whether the relationship between Step Up and Zaffar Khan was such as to present a barrier to reinstatement for Muaz Khan. There is no arguable case of appealable error in the Commissioner’s conclusion that the relationship between Step Up and Zaffar Khan was not such as to render reinstatement inappropriate.
To the extent that Step Up suggested there were other operational difficulties which would be encountered in reinstating Muaz Khan, the Commissioner considered the operational challenges raised by Step Up. The Commissioner decided that any adverse operational impact of reinstating Muaz Khan would be reduced by providing Step Up with time to make arrangements for Mr Khan’s reinstatement.[19] The order is to take effect on 1 July 2025 and Step Up has had since 2 April 2025, the date of the decision, to make those arrangements. There is no arguable case that the Commissioner erred in the approach he adopted in that respect. At the conclusion of the hearing of the appeal, the Full Bench offered to make a member of the Commission available to conduct a conference to further assist the parties to resolve any practical difficulties which might be encountered in Muaz Khan returning to work on 1 July 2025. Regrettably, Step Up declined that suggestion.
Step Up has not established an arguable case of appealable error in relation to the question of reinstatement and, as an appeal cannot succeed without the identification of error, we are not satisfied it is in the public interest to grant permission to appeal on this ground.
For these reasons, the Full Bench ordered that permission to appeal was refused at the conclusion of the hearing of the appeal on 20 June 2024.
VICE PRESIDENT
Appearances:
A Lee, Operations Manager, for the appellant.
Z Khan, father and guardian of Muaz Khan, for the respondent.
Hearing details:
20 June 2025.
Sydney (using Microsoft Teams).
[1] [2025] FWC 922.
[2] PR788414.
[3] Decision at [55] – [60].
[4] See Decision at [63].
[5] Decision at [64].
[6] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54;192 FCR 78;207 IR 177at [34] and [43]
[7] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 (Mason CJ, Brennan, Dawson and Gaudron JJ): applied in Hogan v Hinch (2011) 243 CLR 506 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) and Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[8] 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; (2014) 241 IR 177 at [28].
[9] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, (2010) 197 IR 266 at [24]-[27].
[10] Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
[11] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[12] Decision at [37] – [39], [55], and [59].
[13] Decision at [39].
[14] Decision at [59].
[15] Decision at [64].
[16] Gonva Group Pty Ltd v Ramirez[2025] FWCFB 5 at [33]-[39].
[17] Transcript, 24 March 2025, PN184-189.
[18] Decision at [66].
[19] Decision at [67].
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