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…

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.

Continue reading Step Up Disability Services Pty Ltd v Muaz Khan

Details

AGLC: Step Up Disability Services Pty Ltd v Muaz Khan [2025] FWCFB 128
Case: [2025] FWCFB 128
Decision Date: 26 JUNE 2025

CaseChat Overview and Summary

Step Up Disability Services Pty Ltd appealed a decision by Commissioner Crawford, who found that Muaz Khan's dismissal was unfair and ordered his reinstatement. The Full Bench of the Fair Work Commission, consisting of Vice President Gibian, Deputy President Roberts, and Deputy President Slevin, was tasked with determining whether permission to appeal should be granted. The appeal centered on two main issues: whether the dismissal was harsh, and whether the decision to order reinstatement was appropriate.

Step Up argued that the Commissioner failed to consider the conduct of Muaz Khan's father and guardian, Zaffar Khan, in making the decision. However, the Full Bench found that the Commissioner had indeed taken Zaffar Khan's conduct into account and found that it did not justify the harshness of the dismissal. The Full Bench held that Step Up's argument was essentially a disagreement with the Commissioner's conclusion, which did not constitute an arguable case of appealable error.

Regarding the reinstatement order, Step Up argued that it was financially unviable to reinstate Muaz Khan and that the Commissioner failed to consider this in his decision. The Full Bench noted that the Commissioner had considered Step Up's assertions about its financial situation but found that they were not supported by detailed evidence. The Full Bench concluded that Step Up had not demonstrated an arguable case of appealable error in relation to the Commissioner's decision on reinstatement.

The Full Bench also rejected Step Up's argument that the relationship between the company and Zaffar Khan rendered reinstatement inappropriate. The Full Bench found that the Commissioner had adequately assessed the relationship between the parties and concluded that it did not present an insurmountable barrier to reinstatement. The Full Bench further noted that Step Up had declined an offer to assist in resolving any practical difficulties that might arise from Muaz Khan's return to work.

Given that Step Up had not established an arguable case of appealable error, the Full Bench decided that it was not in the public interest to grant permission to appeal. Consequently, the appeal was dismissed, and the reinstatement order remained in effect.

Orders