Federal Court of Australia

Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074

ORDERS

THE COURT NOTES that the prospective applicant, by his counsel, gives the usual undertaking as to damages, namely to:

(a)    submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person whether or not a party, adversely affected by the operation of orders 1 and 2 below; and

(b)    pay the compensation referred to in (a) to the person or persons there referred to.

THE COURT ORDERS THAT:

1.    Until further order the prospective respondent reinstate the prospective applicant to his former employment on the same terms and conditions that applied immediately prior to his dismissal on 3 September 2024.

2.    Until further order the prospective respondent be restrained from terminating the employment of the prospective applicant without the leave of the Court.

3.    The proceeding be expedited.

4.    By 4pm 20 September 2024, the prospective applicant file and serve an originating application and statement of claim.

5.    By 4pm 27 September 2024, the prospective respondent file and serve its defence.

6.    By 4pm 3 October 2024, the parties seek to agree consent orders dealing with all necessary interlocutory steps for the filing of their affidavit evidence, objections and written submissions for use at the final hearing.

7.    The proceeding be listed for a case management hearing before the Docket Judge on a date to be fixed as soon as practicable.

8.    Liberty to apply on 3 days’ notice or on such shorter period as a Judge may allow.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before me is an application by the prospective applicant (Mr Dabboussy) filed pursuant to r 7.01 of the Federal Court Rules 2011 (Cth) seeking interim relief (“the application”) against the prospective respondent, Australian Federation of Islamic Councils (“AFIC”). The application arises out of the summary termination of Mr Dabboussy’s employment by AFIC as its Chief Executive Officer (“CEO”). The orders sought by Mr Dabboussy are as follows:

(a)    An order pursuant to sections 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) and section 23 of the Federal Court of Australia Act 1976 (Cth), that AFIC reinstate Mr Dabboussy to his employment with immediate effect; and

(b)    An order pursuant to sections 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) and section 23 of the Federal Court of Australia Act 1976 (Cth), that the AFIC not dismiss Mr Dabboussy.

2    AFIC is a not-for-profit incorporated Association. AFIC’s Constitution provides for the establishment of an Executive Committee, the powers and functions of which include the power to appoint a CEO and, more generally, to appoint and remove AFIC staff. These powers would include the power to terminate the employment of the CEO.

3    It was not disputed that AFIC is a small business employer within the meaning of s 23 of the Fair Work Act 2009 (Cth) (“FW Act”) or that the Small Business Dismissal Code applies (“the Code”).

4    Mr Dabboussy was employed by AFIC as its CEO from 4 September 2023 until 3 September 2024 when he was summarily dismissed. The employment relationship was governed by a written agreement made by the parties on 28 August 2023 (“the Employment Contract”) which provided for summary dismissal in accordance with cl 21.

5    Section 545 of the FW Act relevantly provides:

545    Orders that can be made by particular courts

    Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)    The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person;

…

…

(Notes omitted)

6    Section 340 of the FW Act relevantly provides:

340    Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

…

7    Section 341(1) of the FW Act relevantly provides:

341    Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

8    Mr Dabboussy contends that AFIC has contravened the general protection provisions of the FW Act by taking adverse action against him by reason of him having made various complaints and inquiries in his capacity as CEO and having thereby exercised a workplace right within the meaning of s 341(1)(c) of the FW Act. He also contends that AFIC contravened the general protection provisions by terminating his employment on 3 September 2024 for reasons which include:

    he had made a complaint on 12 August 2024 (“12 August 2024 Complaint”) in relation to the decision of AFIC to stand him down and to investigate allegations of sexual harassment made against him by a prospective employee; and

    he had an entitlement from 4 September 2024 to bring an unfair dismissal claim under the FW Act in the Fair Work Commission. The termination of his employment at around 4.40pm on 3 September 2024 meant that he was terminated approximately 7 hours short of the minimum service period which would entitle him to bring an unfair dismissal claim.

Mr Dabboussy also alleges that AFIC breached the Employment Contract by purporting to summarily terminate his employment other than by a validly made decision of the Executive Committee of the AFIC. In oral submissions it was submitted that the decision to terminate Mr Dabboussy’s employment was null and void.

9    It is common ground that the application is to be determined in accordance with the general principles governing interlocutory relief. These principles were considered by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. In that case, Gummow and Hayne JJ said at [65]:

The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [(1968) 118 CLR 618 at 622–623]:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [(1968) 118 CLR 618 at 620]. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal [(1968) 118 CLR 618 at 622]:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

See also Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[67] and Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 311 ALR 632 at [68]-[72]. As the judgments in those cases emphasise, the apparent strength of an applicant’s case may be an important consideration in determining whether the balance of convenience favours granting interlocutory relief.

10    The application is supported by an affidavit of the solicitor for Mr Dabboussy (Ms Stuckey-Clarke) who gives evidence on information, instruction and belief and also produces relevant documents including correspondence between Mr Dabboussy and AFIC concerning the stand-down, the investigation and the termination. Those documents also include a transcript of an interview of Mr Dabboussy conducted by Ms Courtney Croker of Worklogic Pty Ltd (“Worklogic”) and a medical certificate relating to the impact of the termination on Mr Dabboussy’s health. The evidence also includes a copy of Ms Croker’s final report dated 3 September 2024.

11    The evidence relied on by AFIC consists of an affidavit of its solicitor (Mr Hamza Alameddine) who also gives evidence on information, instructions and belief. Annexed to his affidavit is a copy of an email dated 28 July 2024 from a female person (“the complainant”) to Dr Rateb Jneid, the President of AFIC, making a complaint of sexual harassment. She asserts that Mr Dabboussy inappropriately told her several times that “the camera really doesn’t do you justice” during the course of their meeting on 24 July 2024 at AFIC’s Zetland office, and also complains of inappropriate conduct involving unnecessary and prolonged eye contact which made her feel extremely awkward and uneasy.

12    On 9 August 2024, Dr Jneid wrote to Mr Dabboussy as follows:

I am writing to you about investigating serious misconduct that you have been accused of in your employment with [AFIC].

On 24 July 2024 you interacted with a newly onboarded employee of AFIC at our Zetland office. We have been made aware of the fact that during her attendance at the office you made inappropriate comments towards her which were suggestive and sexual in nature.

On the face of it, we believe that this conduct amounts to serious misconduct. Specifically, we believe that this conduct amounts to sexual harassment. We will therefore be conducting an investigation into this incident in order to confirm our belief regarding whether it was you who took the relevant actions, whether your conduct was serious, and whether your conduct justifies your summary dismissal from AFIC.

While we conduct our investigation, we will be standing you down in your role as CEO at AFIC effective immediately. This is in line with Clause 21 of your Employment Agreement with AFIC. During the period that you are stood down, you will be entitled to your usual remuneration per Clause 14 of your contract.

We estimate that our investigation will take 2 weeks. Once our investigation Is complete, the stand-down period will end, and we will make a decision as to your dismissal and will notify you of the decision we make.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at www.fairwork.gov.au.

13    Mr Dabboussy replied to Dr Jneid’s letter on 12 August 2024 (by the 12 August 2024 Complaint) as follows:

I refer to your letter (Allegations Letter) dated 9 August 2024 which:

1    Alleges that I engaged in “suggestive and sexual” conduct whilst inducting a newly onboarded employee of AFIC (Allegation);

2    Confirms that AFIC will conduct an investigation of the Allegation (Investigation);

3    States that AFIC believes the Allegation amounts to sexual harassment and serious misconduct, and

4    Confirms I will be stood down from my employment for the duration of the Investigation.

I understand the Allegation is immensely serious and ought rightly to be investigated by AFIC. However, I am concerned that the Allegations Letter prejudges the outcome of the Investigation and AFIC's determination of the Allegation.

I also note that our brief discussion when you presented the letter was much more cordial and seemed to indicate some steps that were not included.

The Allegations Letter does not indicate any opportunity for my involvement or contribution to the Investigation, does it [sic] provide sufficient details to enable a response, nor does it invite any response to the Allegation. As a matter of procedural fairness, these matters must be addressed and rectified.

To be clear, I confirm that I do wish to provide a fulsome and proper response to the Allegation. To do so, I would request:

(a)    A copy of the written complaint.

(b)    The name of the individual(s) who will be conducting the Investigation (and then [sic] they are to be appointed); and

(c)    Confirmation of when it is proposed that I participate in the Investigation.

Given the seriousness of the Allegation and the importance of the Investigation for me personally, I ask that this information be provided by no later than Wednesday, 14 August 2024.

14    Mr Dabboussy received a response to his letter from the solicitors for AFIC on 14 August 2024, which stated that particulars of the complaint “may” be provided as part of the investigation into his conduct, that either Ms Croker or Jason Clark of Worklogic would conduct the investigation and that details of his participation in the investigation would be provided by Worklogic “as soon as is practicable”.

15    On 28 August 2024 Mr Dabboussy was interviewed by Ms Croker. He was provided with a copy of the transcript of the interview at about 7.10am on 2 September 2024 and invited to provide any additional comments by 3 September 2024. At about 8.45am on 3 September 2024 Mr Dabboussy sent an email to Ms Croker stating that the transcript of the interview appeared to be accurate and that he was agreeable to it being used as his statement.

16    The documents produced by Mr Alameddine include what purport to be minutes of a meeting of the Executive Council of AFIC held at 8.30pm on 2 September 2024. The minutes describe the meeting as an emergency meeting and are wholly concerned with the complaint against Mr Dabboussy. They record that Dr Jneid “presented the draft findings from the investigation” which concluded that the allegations made by the complainant were “substantiated on the balance of probabilities”. There is nothing in the minutes to indicate that any draft report was tabled at the meeting or made available to the Executive Committee members prior to the meeting. There is no draft report in evidence.

17    The minutes also record:

6.    Decision on Employment Termination

    Based on the organisational culture and reputation safeguard, the CEO's employment termination was the most discussed action. A vote was presented, and a unanimous decision was made that the finding of the CEO's conduct, if maintained in the Investigator’s final report, warranted the termination of his employment contract. The members of the Executive Committee agreed that the conduct justified immediate/summary dismissal from AFIC.

    The President was authorised to give notice of termination to the CEO based on the final report from the Investigator substantially in the same form as the draft report received on the day of the meeting.

18    The notice of termination of Mr Dabboussy is signed by Dr Jneid and dated 3 September 2024. It was attached to an email sent to Mr Dabboussy at about 4.40pm on 3 September 2024. The notice includes the following:

On 9 August 2024, we wrote to you notifying you of an investigation that AFIC intended to conduct into an alleged incident that involved serious misconduct on your part (the Incident). The Incident took place at AFICs offices and involved yourself and one other person (the Complainant).

On 16 August 2024, AFIC officially appointed a third party, Worklogic Pty Ltd (Worklogic), to investigate the Incident (the Investigation). This investigation was undertaken by Courtney Croker, Principal Consultant (the Investigator). The Investigator has finalised the investigation and found that the allegations made by the Complainant about your conduct was substantiated on the balance of probabilities.

Based on the substantiation of the above allegations, the Investigator has concluded that the available evidence supported an observation that your conduct was unwanted and uninvited and that a reasonable person having regard to the circumstances would find that the comments that were made by you were sexual in nature.

We believe that this conduct amounts to serious misconduct. Specifically, we believe that this conduct amounts to sexual harassment. We also believe that it justifies your immediate dismissal from AFIC. We have therefore decided to summarily dismiss you from your employment with AFIC.

Your employment will end immediately. You are not entitled to notice of our decision to terminate you or any payment in lieu of receiving that notice given that the reason why we are dismissing you is for serious misconduct. This is in line with Clause 20(c) of your Employment Agreement with AFIC as well as the guidance on summary dismissal provided by the Small Business Fair Dismissal Code published by the Fair Work Ombudsman.

(Original emphasis)

19    It was not until after Mr Dabboussy commenced this proceeding that he obtained access to a copy of Ms Croker’s report. It includes the following statements:

While the investigator acknowledges that Mr Dabboussy’s conduct falls on the lower end of the scale of inappropriate behaviour, it is important to consider Mr Dabboussy’s role as Chief Executive Officer at AFIC. [The complainant] was a new employee who was about to begin working as Mr Dabboussy’s executive assistant. It is crucial to recognise that Mr Dabboussy chose to make comments about [the complainant’s] appearance, which were unnecessary. Additionally, the comment “the camera does not do you justice” goes beyond merely commenting on someone’s appearance; it implies that the person making the remark finds the other person attractive.

Overall, the available evidence supports an observation that Mr Dabboussy’s behaviour was unwanted and uninvited. Further, a reasonable person having regard for the circumstances would likely find his comments about [the complainant’s] appearance to be sexual in nature.

20    Mr Dabboussy says that he did say to the complainant that “the camera does not do you justice” on one occasion but that this was in the context of him having previously met her only on a “Zoom” call. Her other allegations, including that he made that statement to her more than once, or that he stared at her inappropriately, are denied by him.

21    I turn now to the question whether Mr Dabboussy has made out a prima facie case for an order that he be reinstated to the position of CEO of AFIC. It is convenient to first deal with his contention that the decision of the Executive Committee to summarily terminate his employment was null and void.

22    Mr Dabboussy’s argument is based on an alleged non-compliance with notice requirements under cl 44(1) of the Constitution, which states:

Meetings of the Executive Committee shall be called by the Secretary of the Federation upon requests by four (4) members of the Committee, giving notice to the members of the Committee at least two (2) weeks prior to date of such meeting, provided always that it shall be lawful for the Executive Committee to hold emergency meetings with a shorter notice to the members of the Committee.

23    The minutes record that the President (Dr Jneid) advised that it was necessary to call an emergency meeting of the Executive Committee. From this it may be inferred that two weeks notice was not given to members of the Executive Committee of the meeting held on 2 September 2024. Eight members of the Executive Committee attended the meeting, with one apology. The minutes do not suggest that any attendee raised any issue as to lack of notice or that they did not agree with the President’s characterisation of the meeting as an “emergency meeting”. In the circumstances, the argument for saying the unanimous decision of the meeting was invalid is in my view weak. Further, Mr Dabboussy’s argument appears to depend on it being an implied term of the Employment Contract that he could only be terminated by a decision of the Executive Committee at a meeting convened strictly in accordance with the requirements of cl 44(1). That argument was not developed by counsel for Mr Dabboussy in his submissions and is also one that I would regard as weak, particularly in so far as it is relied on in support of any contention that he is entitled to be reinstated to his former position.

24    Another matter raised by Mr Dabboussy concerns what was said to be the CEO’s obligations under the Employment Contract, which included an acknowledgment that he was under a legal obligation to comply with the Corporations Act 2001 (Cth) (“the Corporations Act”). I note that cl 62 of the Constitution deems that the provisions of the Corporations Act to form part of the rules. However, the scope and effect of that clause was not the subject of any submission. In essence, Mr Dabboussy’s complaint seems to be that adverse action was taken against him because he made various complaints and inquiries relating to an investigation being undertaken by an external body, the Australian Charities and Not-for-Profits Commission (“ACNC”) in relation to his employment. These complaints and inquiries relate to disclosures which Mr Dabboussy asserted had not been properly made to the ACNC. The suggestion is that these complaints and inquiries related in some way to Mr Dabboussy’s employment, and constituted an exercise of his workplace rights, because of his obligations as CEO under the Employment Contract. On the evidence before me, I do not consider Mr Dabboussy’s case based on the making of any such complaint or inquiry to be strong.

25    With regard to Mr Dabboussy’s contention that his employment was terminated for reasons which included the fact that he made the 12 August 2024 Complaint, I do not see any basis for inferring that the 12 August 2024 Complaint was a reason for the termination of Mr Dabboussy’s employment. Accordingly, I regard this aspect of Mr Dabboussy’s claim as weak.

26    I take a different view in relation to Mr Dabboussy’s contention that one of the reasons for terminating his employment on 3 September 2024 included the fact that he had an entitlement from 4 September 2024 to bring an unfair dismissal claim under the FW Act. The Code provides that “[s]mall business employees cannot make a claim for unfair dismissal in the first 12 months following their engagement”: see also s 382 and the definition of “minimum employment period” in s 383(b) of the FW Act.

27    The evidence before me strongly suggests that the Executive Committee meeting was arranged with great haste at a time when Ms Croker’s report had not even been finalised, and after Mr Dabboussy had already been stood down. There is no explanation on the evidence before me as to why it was necessary for the Executive Committee to meet for the purpose of considering what were at that stage said to be “draft findings” or how it was that Dr Jneid (but not Mr Dabboussy) came into possession of Ms Croker’s “draft findings”. In my view, there is a strong inference available that the Executive Committee was convened by Dr Jneid for the purpose of facilitating termination of Mr Dabboussy’s employment before 4 September 2024, so as to deny him the opportunity to make a claim for unfair dismissal under Part 3-2 of the FW Act.

28    In Qantas Airways Limited v Transport Workers Union of Australia (2023) 412 ALR 134 at [6], Kiefel CJ, Gageler, Gleeson and Jagot JJ concluded that:

… a person who takes adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes s 340(1)(b), regardless of whether that other person has the relevant workplace right at the time the adverse action is taken. Qantas did not avoid the operation of s 340(1)(b) in relation to its adverse action by taking the action prior to the existence of the workplace rights the exercise of which Qantas sought to thwart.

In the present case it was submitted by Mr Dabboussy that his dismissal on 3 September 2024 constituted adverse action that was taken for a substantial and operative reason of depriving him of the right to make a claim for unfair dismissal.

29    It may be assumed for present purposes that Ms Croker’s investigation and findings provided AFIC with reasonable grounds for summarily terminating Mr Dabboussy’s employment and that her conclusion that the various allegations made against him were substantiated was the principal reason for the dismissal. However, in my view, Mr Dabboussy has established a prima facie case that the timing of his dismissal was influenced by a desire to ensure that he could not make a claim for unfair dismissal and that this was also a substantial and operative reason for his dismissal on 3 September 2024. I am therefore persuaded that he has established a prima facie case for relief in respect of AFIC’s contravention of s 340(1) of the FW Act.

30    I come now to the balance of convenience. Mr Dabboussy relied on the following matters in support of his submission that the balance of convenience favoured the making of an interim order for his reinstatement:

(a)    the existence of what was characterised as a strong prime facie case;

(b)    the financial impact of the termination on Mr Dabboussy’s ability to meet his financial obligations including caring for family members who are dependent on him;

(c)    the difficulty he will experience in finding new employment;

(d)    the reputational and psychological impact that the dismissal has had and will continue to have on him; and

(e)    his inability to bring a claim for unfair dismissal.

31    As to the strength of the case, while I accept that Mr Dabboussy has made out a prima facie case that AFIC contravened s 340(1) of the FW Act, I would not characterise his case as strong, particularly in so far as it relates to his claim for reinstatement. His claim for reinstatement is complicated by Ms Croker’s investigation and findings on which AFIC continues to rely in order to justify its decision to summarily terminate his employment. That said, on Mr Dabboussy’s case, the timing of the AFIC’s decision deprives him of the most obvious and effective right to challenge what he contends was his unjustified dismissal on the ground that he was not guilty of the misconduct attributed to him: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ. Such a challenge would require AFIC to prove that Mr Dabboussy was in fact guilty of the conduct alleged in order to justify its right to summarily dismiss him: see Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 at [28]- [30], and the authorities cited therein.

32    I accept that Mr Dabboussy’s dismissal will have a significant financial impact on him and on members of his family to whom he provides ongoing financial support. He was not paid any amount on termination, and it is apparent from the evidence that if there is no interim order for reinstatement, he may be forced to sell his family home. In those circumstances I do not consider damages will provide him with an adequate remedy. I give less weight to what are said to be the reputational and psychological impacts of the dismissal which seem to me to be matters that are unlikely to be resolved until after a final determination of Mr Dabboussy’s claims or some other resolution of them.

33    AFIC submitted that the balance of convenience does not favour the grant of an interlocutory order for reinstatement. First it submitted that the employment relationship ended in circumstances where the Executive Committee resolved to summarily terminate Mr Dabboussy following allegations of serious misconduct which were substantiated on investigation. That is a significant consideration. While Mr Dabboussy disputes much of the complainant’s account of their meeting, there is no evidence to suggest that Ms Croker’s findings were not reasonably open based on her interviews of the complainant, Mr Dabboussy, and two other persons who I was told did not witness the conduct in question.

34    AFIC also submitted that it is a small business employer which currently employs three full-time employees and one part-time employee. It submitted that, because of this, and in light of the circumstances of the dismissal, it was impractical to reinstate Mr Dabboussy on an interim basis. In this regard, the solicitor for AFIC has indicated in his affidavit that two of those employees have said they would be uncomfortable working with Mr Dabboussy. The evidence produced in support of that statement consists of an email from one of the employees in response to a conversation she had with Dr Jneid in which he informed her that “Kamalle is going to Court as he’s fighting to come to back and work in AFIC”.

35    I accept that the employees I have referred to may be uncomfortable working with Mr Dabboussy given recent events. That is a matter to which I give significant weight. I am less concerned about Dr Jneid’s ability to maintain a working relationship with Mr Dabboussy. There is nothing in the evidence relied on by AFIC to indicate that Dr Jneid would feel uncomfortable working with Mr Dabboussy until the proceeding is heard and determined on a final basis.

36    Counsel for Mr Dabboussy accepted that it would be open to AFIC to stand Mr Dabboussy down following interim reinstatement, or direct him to work from home, until such time as his proceeding is heard and determined. He accepted that reinstatement on that basis would at least secure for Mr Dabboussy ongoing remuneration which is a matter of great concern for Mr Dabboussy given his financial responsibilities. Counsel for Mr Dabboussy made clear that if there was an interim order for reinstatement his client would not resist any direction from AFIC standing him down or requiring him to work from home. That is a significant concession and goes a long way to addressing AFIC’s concerns. Moreover, at the time of the alleged contravention of s 340(1) of the FW Act, Mr Dabboussy had been stood down and that state of affairs represents the status quo ante.

37    AFIC also submitted that there was no objective evidence indicating that Mr Dabboussy could not obtain other employment, and that he had not yet attempted to do so. While that is correct, I expect that finding alternative employment would prove very difficult for Mr Daboussy, having regard to his age and employment history (which has mostly involved working in senior positions for non-profit organisations) and the nature of the allegations of misconduct made against him.

38    AFIC also submitted that there may be a significant delay between the making of an interim order for reinstatement and the final determination of the proceeding. However, it was accepted by counsel for both parties that a final hearing of the proceeding was unlikely to take more than three days. On that basis, it seems to me that this is a case in which it is appropriate to make an order for expedition and to put in place a procedural timetable which will see the matter brought on for hearing relatively quickly.

39    In my view it is appropriate to make an interim order for Mr Dabboussy’s reinstatement. I do that on the basis of the acknowledgment recorded in [36] above and the usual undertaking as to damages which Mr Dabboussy has also offered. There will also be an interim order restraining AFIC from terminating Mr Dabboussy’s employment without the leave of the Court.

40    Orders accordingly.

Associate:

Dated:    17 September 2024