Federal Court of Australia

Raghib v Stantec Australia Pty Ltd (Final hearing) [2026] FCA 1354

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    By 4.00 pm on 17 September 2026 the first respondent file and serve:

(a)    a submission on costs limited to two pages; and

(b)    any affidavit material in support.

3.    By 4.00 pm on 21 September 2026 the applicant file and serve:

(a)    a submission on costs limited to two pages; and

(b)    any affidavit material in response.

4.    Submissions shall be prepared in 12 pt font and 1.5 line spacing.

5.    The question of costs of the proceeding be listed for hearing on 24 September 2026 at 2.15 pm.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant seeks judicial review of two decisions of the Fair Work Commission. The first decision is the primary decision of a Deputy President who dismissed the applicant’s application for remedies under Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act) in relation to a claimed unfair dismissal from employment: Raghib v Stantec Australia Pty Ltd [2025] FWC 2335 (PD). The second decision is that of the Full Bench which refused permission to appeal the primary decision: Raghib v Stantec Australia Pty Ltd [2025] FWCFB 218 (FB).

2    The applicant is self-represented, as he was before the Commission. He is vision impaired and appeared before the Court remotely with the assistance of special technology, which included large screens. At the hearing, the applicant also confirmed that he had used artificial intelligence, or AI, in the preparation of documents before the Court, stating that he used it to check grammar mostly. The applicant requested that all hearings in this matter commence at midday to give his support workers time to set up the technology for him. And at the applicant’s request I permitted him to submit a document shortly before the hearing outlining his oral submissions.

Background

3    The applicant was employed by the first respondent (Stantec) in the position of “Senior Human Resources Business Partner Vic/SA”. On 20 March 2025, Stantec summarily dismissed the applicant from employment on the ground of serious misconduct. At first instance, the Commission dismissed the applicant’s application under Part 3-2 of the FW Act, holding that the applicant had engaged in dishonest conduct. While the Commission held that there had been some procedural deficiencies relating to the applicant’s dismissal, it held that those deficiencies were comfortably outweighed by the gravity of the applicant’s serious misconduct with the result that the Commission was satisfied that the dismissal of the applicant was not harsh, unjust, or unreasonable.

4    As to the applicant’s appeal to the Full Bench of the Commission, under s 400(1) of the FW Act the power to grant leave to appeal a decision under Part 3-2 is conditioned on the Full Bench being satisfied that it is in the public interest to do so. Further, under s 400(2) an appeal from a decision under Part 3-2 on a question of fact can be made only on the ground that the decision involved a significant error of fact. With the consent of the parties, the Full Bench determined the application for permission to appeal on the papers. The Full Bench received detailed written submissions from both parties which amounted to full argument on the question whether permission to appeal should be given. The Full Bench held that the applicant’s proposed grounds of appeal did not disclose any arguable case of error and that it was not in the public interest to grant permission to appeal and therefore permission to appeal was refused.

The Commission’s findings at first instance

5    In relation to the threshold matters going to the Commission’s jurisdiction, the Deputy President found that the applicant’s employment was terminated at the initiative of Stantec and that he was therefore “dismissed” within s 386(1) of the FW Act: PD [65]–[66]. He was satisfied that the application was made within time, that Stantec, which had approximately 2,200 employees, was not a small business, that the applicant had over three years’ service being more than the minimum employment period of six months, that the applicant’s salary of approximately $157,743 was below the high-income threshold, and that the dismissal was not a genuine redundancy: PD [68]–[69].

6    The Deputy President made credit findings in relation to the witnesses who gave evidence. As to two witnesses called by Stantec, Dr Ward and Ms Winsbury, the Deputy President found that they were candid, forthright and consistent; that Dr Ward was “clear but not dogmatic”; and that Ms Winsbury “remained resolute” and “came across as a witness of credit”: PD [71].

7    In relation to the applicant, the Deputy President found him to be an unimpressive witness who was reluctant to make concessions, who gave evidence that “appeared to be made up ‘on the fly’”, who made unsubstantiated and “at times misogynistic” claims, and who persisted in making “patently false claims”. The Deputy President concluded that the applicant was not a witness of credit and preferred Stantec’s witnesses where there was conflict: PD [72]–[73]. The Deputy President later went further and stated that he regarded the applicant to be dishonest and untrustworthy in his evidence: PD [78].

8    Stantec relied on three allegations of misconduct to justify the summary dismissal of the applicant. The Deputy President directed himself to apply the Briginshaw standard to any findings of misconduct: Briginshaw v Briginshaw (1938) 60 CLR 336. He found that the first allegation was not substantiated but that the second and third allegations were established.

9    The first allegation was that the applicant engaged in unrelenting coercive control and predatory sexual behaviour towards multiple young women in the workplace who either reported to him (in the case of Ms Winsbury) or who correctly regarded him as in a position of authority in his senior position in the human resources team (in the case of Complainant 3). The Deputy President held that this allegation was not established because Stantec adduced no direct evidence from the complainants to support the ground: PD [77]–[78].

10    The second allegation relied on by Stantec was that the applicant attempted to contact Complainant 3 by phone on 11 March 2025 after he became aware on 3 March 2025 of the allegations made by Complainant 3 about the applicant’s conduct towards her at Stantec’s 2023 Christmas party. The allegations made by Complainant 3 were summarised by the Deputy President at PD [23] and included inappropriate conversation with and physical contact of Complainant 3. At the time the applicant attempted to contact Complainant 3, he had been absent from work for a prolonged period, relying on medical certificates stating that he was unfit for work: PD [20].

11    The applicant admitted attempting to call Complainant 3 on 11 March 2025, conceded that his conduct in doing so was inappropriate, but sought to justify it. The Deputy President rejected the applicant’s explanations, finding it “almost inconceivable” that a senior HR practitioner would not appreciate the confidentiality obligations attaching to a complaint, holding that the conduct breached the applicant’s obligation to respect confidentiality and that it constituted misconduct: PD [80].

12    As to the third allegation, the applicant had claimed to Stantec, and continued to maintain at the hearing before the Commission, that on 1 July 2024 he received a text message to his personal mobile phone sent by Ms Winsbury. The terms of the text were set out at PD [27] —

Hi Firas, I just wanted to reach out to you and let you know how sorry I am about all the trouble you went through at Stantec for what it’s worth. I was talked into making the complaint in return for my role being confirmed at stantec and I’m not sure if you’re aware, but I am no longer there and I’ve been feeling bad about the whole thing and just wanted to let you know that good luck with everything. All the best [fingers cross[ed] emoji x 2]

13    The applicant relied on the alleged text at a number of stages during the course of his disputation with Stantec, including in an earlier general protections application dated 12 August 2024 that the applicant filed with the Commission. In that application the applicant relied on the alleged text to support a claim that Ms Winsbury had been coerced into fabricating allegations against him.

14    Ms Winsbury gave evidence, which the Deputy President accepted, denying that she sent the text message to the applicant. At PD [81]–[82] the Deputy President held that the applicant’s claim that Ms Winsbury sent the text to him was “a complete fiction”, and that the applicant’s narrative was “completely implausible” and “deliberately false”. The Deputy President stated at PD [81] that the applicant’s allegation that he received the text was —

a cynical fabrication designed by the Applicant to discredit and undermine Ms Winsbury, the allegations made by her and the disciplinary process undertaken by the Respondent in response to those allegations.

15    A key finding made by the Deputy President was that the applicant had added his own work number to Ms Winsbury’s contact details on his personal phone so that a text message from his work phone would appear without closer scrutiny to have been sent by Ms Winsbury along with the previous messages that he had exchanged with Ms Winsbury: PD [86]–[87], [93]. The applicant had advanced a claim that he left his work phone in a cabinet at Stantec’s office and that Ms Winsbury was using the applicant’s work phone. The Deputy President held that this claim was concocted: PD [89]. From PD [84] to [92] the Deputy President set out eight reasons for rejecting the applicant’s claim that he received the text message, not the least of which was that Ms Winsbury had left her employment with Stantec in April 2024, which was two months before the text message was allegedly sent, and that Ms Winsbury produced a Telstra record which showed that she was using her own phone on the day the applicant claimed that she sent a message to him from his work phone. The Deputy President held at PD [94] that the applicant’s conduct in relation to the fabricated text message was —

calculated, dishonest and engaged in for the purpose of discrediting Ms Winsbury and achieving a lesser penalty or withdrawal of the proposed disciplinary action against him. The conduct was not merely a denial of the conduct alleged against him. In the process of denial of the sexual harassment allegations, the gravity of the Applicant’s misconduct was aggravated by him literally throwing Ms Winsbury ‘under the proverbial bus’ by accusing her of dishonest conduct.

16    Section 387 of the FW Act sets out the criteria for considering whether a dismissal was harsh, unjust, or unreasonable –

387    Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)    whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)    whether the person was notified of that reason; and

(c)    whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)    any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)    if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)    the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)    the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)    any other matters that the FWC considers relevant.

17    The Deputy President addressed each of these matters at PD [95] to [112].

18    The Deputy President held that the applicant’s inappropriate attempt to communicate with Complainant 3 and the fabrication of the text message constituted serious misconduct within the meaning of reg 1.07 of the Fair Work Regulations 2009 (Cth) because the conduct was “wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment”. The Deputy President held that there was therefore a valid reason for the applicant’s dismissal, which weighed in favour of a finding that the dismissal was not unfair: PD [95], [114].

19    The Deputy President held that the applicant was not notified of the two valid reasons that justified his dismissal and was not given an opportunity to respond to them: PD [98], [101]–[102]. These were held to be procedural deficiencies that weighed towards unfairness. The other specific matters referred to in s 387 were held to be irrelevant or neutral: PD [114]. The applicant raised a miscellany of matters in favour of a finding of unfairness which the Deputy President addressed under s 387(h) of the FW Act and rejected: PD [107]–[112].

20    After considering the matters specified in s 387 of the FW Act, the Deputy President was satisfied that the dismissal of the applicant was not harsh, unjust, or unreasonable. A leading consideration in that evaluation was that the Deputy President was satisfied that if the applicant had been given an opportunity to respond to the allegations about the fabricated text message, he would have maintained his false narrative: PD [115]. The Deputy President was satisfied that, while the procedural deficiencies of the disciplinary process meant the applicant was not put on notice of the valid reasons for his dismissal and he was denied the opportunity to respond, the outcome would have been the same given the gravity of established misconduct. The Deputy President concluded that in light of the applicant’s dishonest conduct in relation to the text message, and his inappropriate attempt to communicate with Complainant 3, the procedural deficiencies in the dismissal were comfortably outweighed by the gravity of the applicant’s serious misconduct: PD [116].

The Full Bench decision

21    The applicant’s notice of appeal to the Full Bench raised seven grounds, as follows –

Part A:    Errors of fact

1.    Mischaracterisation of Evidence: The Deputy President erred by finding that the appellant had “fabricated” a text message based on inference and not on physical evidence presented to him. Furthermore the [Complainant 3] allegation digital forensic evidence showing highly inconsistent creation date based on the date of the allegations, metadata, and chain of custody. This error is material, as dishonesty was the central basis of the valid reason finding.

2.    Failure to Apply Briginshaw Standard: In circumstances where allegations of dishonesty were grave and career-ending, the Commission failed to apply the Briginshaw standard of “cogent evidence” (Briginshaw v Briginshaw (1938) 60 CLR 336). Instead, uncorroborated assertions were accepted without adequate reasoning. In addition the Deputy President stated that the [Appellant] fabricated the workplace complaints which is factually incorrect because he presided over a general protections claim hearing on 07/11/2024 C2024/5720, this exercise of the Appellant’s workplace right is at the core of the matter and is the main driver for the predetermination action against the [appellant], there was no weight or consideration to this factor, which amounts action which is spiteful [behaviour] by the respondent. There furthermore factual evidence in support of this point, [this] first was [highlighted] in the summary of the response to EW allegations document and the second was an [email] on 25/01/2025 to Vick Nadu over the matter. Both were ignored or not considered by the [deputy] president.

3.    Dismissal of Contrary Medical Evidence: The Commission failed to give weight to unchallenged medical certificates confirming the appellant’s incapacity at the time of dismissal. This factual error led to an erroneous finding that dismissal during medical leave was permissible.

Part B:    Errors of Law and Principle

4.    Predetermination of Outcome: The termination letter, coupled with evidence that the appellant’s replacement was appointed prior to the conclusion of the show-cause process and the removal of work tools in June 2024, demonstrates predetermination. The Deputy President erred by failing to treat this as a denial of natural justice under s.387(b)–(c).

5.    Improper “Cure by Speculation” Reasoning: The Deputy President sought to “cure” breaches of procedural fairness by hypothesising that the outcome would have been the same even if fairness had been afforded. This approach is legally erroneous, as the fairness of a dismissal process cannot be validated by hindsight speculation (see Crozier v Palazzo Corporation (2000) 98 IR 137).

6.    Apprehended Bias in Proceedings: The Deputy President engaged in an ex parte discussion with the respondent’s representatives regarding evidence without the applicant present. This creates an apprehension of bias contrary to the principles in Re JRL; Ex parte CJL (1986) 161 CLR 342.

7.    Conflict of Interest in Investigation: The investigation relied upon by the Commission was conducted by Carter Newell Lawyers, who simultaneously acted for the respondent in defending these proceedings. This dual role gave rise to a reasonable apprehension of bias which was not addressed.

22    In support of his proposed grounds of appeal to the Full Bench the applicant relied on a written submission. The written submission contains eight pages of text and attaches tables of authorities. Although the applicant advanced seven grounds of appeal to the Full Bench, his written submissions to the Full Bench purported to address only four grounds, and the identified grounds in the submissions did not correspond to the grounds of appeal. In relation to the applicant’s seven grounds of appeal to the Full Bench –

(1)    Ground 1 of the notice of appeal was titled “Mischaracterisation of Evidence”. However, in his written submissions to the Full Bench the applicant referred to Ground 1 as “Procedural Irregularity and Apprehended Bias”, and the submissions engaged with a completely different topic, being a claim by the applicant that a private meeting had occurred in chambers between the Deputy President and counsel for Stantec during an adjournment giving rise to a claim of reasonable apprehension of bias. The applicant submitted to the Full Bench that this ground was “the cornerstone of the appeal”. To compound things, in Ground 5 of the applicant’s grounds of review before the Court, which I will set out later, the applicant stated that he does not maintain that a private chambers meeting occurred.

(2)    Ground 2 of the applicant’s notice of appeal was titled “Failure to Apply Briginshaw Standard”. However, in his written submissions to the Full Bench the applicant referred to Ground 2 as “Breach of Natural Justice” and claimed that he was denied an opportunity to respond to Stantec in relation to the allegations made against him before it terminated his employment.

(3)    Ground 3 of the applicant’s notice of appeal was titled “Dismissal of Contrary Medical Evidence”. However, in his written submissions to the Full Bench the applicant referred to Ground 3 as “Manifest Errors of Fact and Evidentiary Misapplication” and claimed that the Deputy President erred by relying on unreliable evidence while failing to consider compelling, incontrovertible facts. These alleged errors did not relate to the medical evidence regarding his incapacity which was the subject of the notice of appeal.

(4)    Ground 4 of the applicant’s notice of appeal was titled “Predetermination of Outcome”, the outcome being Stantec’s decision to terminate his employment rather than the Deputy President’s decision. However, in his written submissions to the Full Bench the applicant referred to Ground 4 as “The Harshness of the Dismissal and Legal Flaws” and claimed that the Deputy President had failed properly to weigh several factors that compounded the harshness and unreasonableness of the dismissal as required by s 387(h) of the FW Act, none of which related to an alleged predetermination of the termination decision.

(5)    Ground 5 of the applicant’s notice of appeal was titled “Improper ‘Cure by Speculation’ Reasoning”. There was no section of the applicant’s written submissions to the Full Bench that distinctly addressed Ground 5.

(6)    Ground 6 of the applicant’s notice of appeal was titled “Apprehended Bias in Proceedings”. There was no section of the applicant’s written submissions to the Full Bench that distinctly addressed Ground 6, although the submissions made by reference to Ground 1 appeared to address the subject-matter of Ground 6.

(7)    Ground 7 of the applicant’s notice of appeal was titled “Conflict of Interest in Investigation”. There was no section of the applicant’s written submissions to the Full Bench that addressed Ground 7.

23    The Full Bench rejected each of the applicant’s grounds of appeal.

24    The Full Bench held that there was no apparent merit in grounds 1 or 2. It applied a Full Bench decision in Australian Education Union v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 and held that factual findings at first instance should generally stand unless shown to be wrong by incontrovertible facts or glaringly improbable. It held that there was no arguable case that the Deputy President’s factual findings were shown to be wrong on that basis. The Full Bench stated that the Deputy President’s findings were “carefully reasoned” and “plainly open to him on the evidence”. The Full Bench noted that despite the Deputy President’s reasoned adverse credit findings against the applicant, the Deputy President had found that a third set of allegations against the applicant had not been substantiated: FB [6].

25    The Full Bench held that the third ground of appeal was without merit, holding that there was no reason a person cannot be dismissed for serious misconduct during a period of medical leave, and that it could not see how the applicant’s capacity could have affected the outcome: FB [7].

26    The Full Bench rejected the fourth ground of appeal on three bases. The first was to observe that the Deputy President found in the applicant’s favour in relation to the procedural issues relating to the termination of his employment. The Full Bench remarked that the applicant was simply seeking to characterise the procedural flaws identified by the Deputy President in an additional way. Secondly, the Full Bench held that any alleged error of fact in this regard could not be characterised as significant. Thirdly, the Full Bench held that it was not arguable that this matter could have altered the result, given the Deputy President’s conclusions about the applicant’s serious misconduct: FB [8].

27    As to the fifth ground of appeal, the Full Bench stated at FB [9] that the applicant had misunderstood the decision of the Full Bench of the Australian Industrial Relations Commission in Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 (Crozier). The Full Bench held that the Deputy President did not “validate” procedural unfairness; rather, he concluded that despite the procedural deficiencies the dismissal was not unfair, which was exactly as the Full Bench had done in Crozier: see Crozier at [74], [76], [80], and [82].

28    As to the sixth ground of appeal, which was a claim that the Deputy President had engaged in an ex parte discussion with Stantec’s representative about the evidence during the 4 August 2025 hearing thereby creating an apprehension of bias, the Full Bench stated that this had not been explained in the notice of appeal. The Full Bench referred to the applicant’s correspondence with the Commission concerning the appeal book in which he claimed that during the hearing on 4 August 2025 the Deputy President convened a meeting in chambers with Stantec about the evidence from which he was excluded, claiming that the transcript would provide evidence of this. The Full Bench held that the audio recording of the hearing revealed nothing of the kind, and that the applicant’s sixth ground was an unsubstantiated assertion that presented no arguable case of error: FB [10].

29    Finally, the Full Bench rejected the applicant’s seventh ground of appeal, stating that it did not make sense. For context, the Deputy President had referred at PD [17] and [21] to an investigation which Stantec had retained a firm of solicitors, Carter Newell, to undertake in relation to a bullying complaint that the applicant had made against another employee of Stantec. The investigation found that no inappropriate conduct was established. The Full Bench held at FB [11] that the seventh ground did not make sense because –

First, the Deputy President made his own factual findings about what occurred. He did not simply rely on the conclusions of others. Secondly, there is no conflict of interest, or bias, associated with a firm conducting a factual inquiry for a client and then representing that client before the Commission.

The nature of judicial review by the Court

30    The applicant claims that the decisions of the Full Bench and the Deputy President are attended with jurisdictional error and seeks remedies in the original jurisdiction of the Court conferred by s 39B(1) of the Judiciary Act 1903 (Cth). See also: FW Act, s 562. Jurisdictional error is concerned with whether the Commission exceeded any express or implied limitations attaching to its powers and functions. Jurisdictional error is concerned with the legality of the Commission’s decisions, and not with the merits or with other errors within jurisdiction. Jurisdictional error may occur if the Commission misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question required of it, or misunderstood the nature of the opinion which it was required to form: Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; 424 ALR 1 (Helensburgh) at [52] (Gageler CJ, Gordon and Beech-Jones JJ). Jurisdictional error may arise if there is a material failure by the Commission to accord procedural fairness. A failure “to respond to a substantial, clearly articulated argument relying upon established facts” is capable of amounting to a failure to accord procedural fairness and also a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 197 ALR 389 (Dranichnikov) at [24]–[25] (Gummow and Callinan JJ, Hayne J agreeing). The question whether there was any jurisdictional error is assessed through the lens of the nature of the jurisdiction that the Commission was exercising under Part 3-2 of the FW Act, which was not to adjudicate on rights, but to determine by reference to the evaluative considerations in s 387 whether to exercise a discretionary power to create a new right: see Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656.

31    In this instance, the Full Bench refused permission to appeal. That has the consequence that the decision of the Deputy President is the conclusive and operative decision. There is no jurisdictional impediment to judicial review of that decision: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; 247 FCR 138 at [45] (Barker, Rangiah and Wigney JJ); Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139; 265 FCR 134 at [41] (Bromberg, Mortimer and Lee JJ). However, the absence of any jurisdictional error in the decision of the Full Bench refusing permission to appeal may be a discretionary reason to refuse relief in relation to the primary decision unless there are compelling reasons to give relief: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 (Dafallah) at [54]–[56] (Mortimer J), cited in D&D Traffic Management Pty Ltd v Australian Workers’ Union [2022] FCAFC 113; 178 ALD 164 at [75] (Katzmann, Thawley and Goodman JJ). The rationale for this approach to the Court’s discretion to refuse relief in relation to a primary decision of the Commission is that to permit an applicant to challenge decisions of the Commission at first instance on a basis which ignores a decision of the Full Bench would be “to permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them”: Dafallah at [56]. This consideration may have particular relevance where a jurisdictional error is alleged in relation to a primary decision of the Commission on a basis that was capable of being the subject of the appeal to the Full Bench and the point was not taken before the Full Bench.

32    Unless the Commission forms a state of satisfaction that it is in the public interest to grant permission to appeal a decision made under Part 3-2 of the FW Act, then it must not grant permission to appeal: s 400(1). In this instance, the decision of the Full Bench to refuse permission to appeal rested upon its failure to be satisfied that it was in the public interest to do so, which was informed by its conclusion that there was no arguable case of error. Any challenge by the applicant to the decision of the Full Bench to refuse permission to appeal must be directed to demonstrating jurisdictional error by the Full Bench in failing to form that state of satisfaction by reference to the principles referred to in Helensburgh at [52].

The evidence before the Court

33    Subject to rulings on admissibility, the applicant read to the Court one affidavit sworn 20 October 2025, and a second affidavit affirmed 26 June 2026. In addition, the applicant sought to tender some documents from the court book to which the first respondent objected on the ground that they did not form part of the record before the Commission.

34    The first respondent objected to the admissibility of paragraphs 1.2, 2.5, 2.6, 3.1, 3.2, 4.1 to 4.5, 5.1 and 6.1 of the applicant’s affidavit sworn 20 October 2025 on the ground that they constituted opinion evidence that was inadmissible under s 76 of the Evidence Act 1995 (Cth). At the hearing I ruled each of these paragraphs to be inadmissible on the ground that they amounted to lay opinion comprising submissions by the applicant, save that I admitted paragraph 3.2(1) as evidence of the fact that the Deputy President had been involved in a previous general protections application before the Commission to which the applicant and the first respondent were parties which was relevant to Ground 4 of the amended originating application.

35    I also excluded from the evidence the applicant’s “Digital Court Book” which was attached to the PDF document comprising the applicant’s affidavit sworn 20 October 2025 that was filed at the time of the originating application. Instead, there is before the court a professionally organised court book which was prepared and filed by the first respondent pursuant to orders made by a Registrar of the Court.

36    As to the applicant’s affidavit affirmed 26 June 2026, the first respondent objected to the admissibility of paragraphs 19, 20, and 28 to 37 on the grounds of relevance and hearsay. As to paragraph 19, it referred to a claimed exchange recorded in “the official hearing audio”. I ruled that paragraph to be inadmissible on the ground of hearsay and relevance in circumstances where the applicant did not produce before the Court an authorised transcript of the hearing before the Commission. There is a short audio extract in the court book at Tab 15 relating to the circumstances of an adjournment before the Commission which I did treat as being before the Court and to which I listened. Otherwise, I informed the parties at an interlocutory hearing on 23 July 2026 that I would not be listening to audio of the hearing before the Commission which the applicant accepted, stating, “No, no, no absolutely not. I don’t expect the Court to – to waste its time on that”. Further, the applicant did not demonstrate the relevance of paragraph 19 to any issue on this application for judicial review. I also ruled that paragraph 20 was inadmissible on the grounds of hearsay and absence of relevance. Finally, I ruled that paragraphs 28 to 37 were not admissible on the ground of the absence of relevance to the issues in this application for judicial review on the ground of jurisdictional error.

37    The court book contains a Part 9 which refers in its title to new material that was not before the Commission. The first respondent objected to that material on the ground that it did not form part of the record before the Commission. Of that material I admitted into evidence the applicant’s general protections application dated 12 August 2024 and an email from Optus to the applicant dated 16 April 2026 that certified that he had been issued with the XXXX XXX 198 phone number which was activated on 13 October 2014. I accepted the applicant’s submission that the evidence of the allocation of the Optus number to him was relevant on the basis that it was evidence that he might have adduced before the Commission had he been given an opportunity. However, it did not appear that there was any dispute before the Court that the 198 number was the applicant’s personal phone number, and the Deputy President found that the 198 number was the applicant’s personal phone number: PD [3]. Otherwise, the applicant did not show that any of the other documents were relevant. In submissions he claimed that the documents were relevant to the credit of various witnesses, but I rejected those submissions on the ground that the merits of the Deputy President’s credit findings were not before the Court.

38    There was also in Part 9 of the court book an unauthorised transcript, purportedly of the hearing before the Deputy President. I did not accept that document into evidence on the ground that it was not the official transcript of the Commission, and its authenticity was not proven. That was a course that I had foreshadowed to the parties at the interlocutory hearing on 23 July 2026. At that hearing I stated that it would be open to either party to order an authorised transcript from the transcript provider to the Commission, but that the Court would not ordinarily have regard to a document that did not appear to be authenticated, and that if either party wanted to rely upon evidence of what occurred at the hearing before the Commission, there should be a transcript before the Court that was an authentic transcript. I later reinforced the point to the applicant at the interlocutory hearing in the following exchange–

HIS HONOUR: Yes. Because it’s not an official transcript and there’s no evidence of its authenticity, I’m unlikely to receive it into evidence and - - -

MR RAGHIB: I’m – I’m – no objection from me.

39    The first respondent read to the Court an affidavit of Thomas Cockburn affirmed 2 April 2026. There was no objection to this affidavit, and the applicant did not seek to cross-examine Mr Cockburn. Mr Cockburn was a law graduate employed by Stantec’s solicitors and he instructed counsel for Stantec at the hearing before the Deputy President. Mr Cockburn deposed to circumstances of a short adjournment of the hearing before the Commission to which I will return when addressing Ground 2 of the amended originating application.

The grounds of review before the Court

40    At the interlocutory hearing on 23 July 2026, I granted leave to the applicant to file an amended originating application substantially in the form of the draft that he had submitted to the Court. The background to that grant of leave was that Stantec had taken the point that there were substantial differences between the grounds of the originating application, the contents of the applicant’s affidavit in support, and the written submissions that the applicant had filed in support for the purpose of the final hearing. In consequence, the applicant sought leave to amend his claim which I granted, and I gave leave to Stantec to file submissions in response to the amended originating application and provided for the applicant to reply to those submissions.

41    There are five grounds of review. The grounds are lengthy. In some places they are incoherent. Further, the numbering of the grounds of review in the amended originating application does not correspond to the numbered grounds set out in the applicant’s written submissions filed 25 May 2026. Therefore, in addressing the applicant’s written and oral submissions I have sought to identify the substance of those submissions of the applicant that appear to correspond to the relevant ground of review.

42    In accordance with the guidance of Mortimer J in Dafallah at [54], I will address Ground 5 first, which is directed to the Full Bench’s decision.

Ground 5

43    Ground 5 is in the following terms –

Ground 5: Failure by the Full Bench to address substantial appeal contentions

5.    The Full Bench Decision was affected by jurisdictional error because, when performing its statutory task under ss 400 and 604 of the Fair Work Act, the Full Bench failed to apply itself to distinct and substantial components of the appeal that were before it. Form F7 and the Applicant’s submissions dated 23 September 2025 are relied upon as the foundation of this ground.

a.    Ground 1 of Form F7 challenged the finding that the Applicant fabricated the disputed text message and separately raised the inconsistent creation date, metadata and chain-of-custody issues concerning the Complainant 3 material. Ground 5 challenged the use of hindsight or futility reasoning to neutralise the admitted absence of notice and opportunity to respond. Ground 6 raised the Applicant’s exclusion from the handling of the proposed phone-record material.

b.    Those grounds and the Applicant’s submissions raised three distinct and substantial matters: first, the unresolved provenance and reliability challenge concerning Complainant 3; second, whether maintaining an unchanged ultimate denial could establish that timely notice would have produced no further evidentiary, investigative or forensic response; and third, whether the recorded handling of the proposed phone-record material, including the ownership and Pascoe Vale assertions and the material’s non-production, disclosed procedural unfairness independently of any alleged private meeting.

c.    The complete digital Court Book supplied by Stantec on 24 July 2026 contains Item 66 at pages 628-642, being the Applicant’s submissions dated 23 September 2025. That material confirms that the submissions formed part of the material placed before the Full Bench.

d.    The Applicant relies in particular on paragraphs 2.2, 3.1.2 and 3.1.4 of those submissions concerning notice, opportunity to respond and hearing-stage evidence, and paragraphs 3.3.2 and 3.3.3 concerning the Complainant 3 creation-date, provenance and visual-impairment contentions.

dA.    Stantec’s submissions on appeal did not substantively answer the separate Complainant 3 creation-date, metadata and chain-of-custody component of Ground 1. Its response to Ground 6 was confined, in substance, to denying that the alleged ex parte event occurred. Those submissions did not address whether the open-court ownership and Pascoe Vale assertions, the direction for production, the subsequent non-production of the proposed records, and the Applicant’s inability to inspect and answer their asserted foundation disclosed procedural unfairness.

e.    At [6], the Full Bench characterised the relevant factual grounds principally as challenges to the fabrication finding and the application of the Briginshaw principle. At [9], it addressed the general proposition that procedural deficiencies may be outweighed. It did not engage with the objectively located screenshot at page 498 of the Digital Hearing Book, the difference between an unchanged ultimate denial and the lost evidentiary, investigative and forensic opportunity that timely notice could have enabled, or the procedural significance of the late ownership and Pascoe Vale assertions, the direction for production and the subsequent non-production of the proposed records.

f.    At [10], the Full Bench confined Ground 6 to whether the audio established a private chambers meeting. The Applicant does not maintain that such a meeting occurred. The pleaded complaint is that the Full Bench did not address whether the open-court assertion of adverse records, the direction that they be provided, their subsequent non-production, and the absence of a practical opportunity to test the ownership and geolocation assertions disclosed an arguable procedural-fairness error. The later affidavit of Thomas Cockburn is relied upon only to clarify the historical procedure and materiality.

g.    The confirmation provided by the complete digital Court Book removes the former uncertainty about whether the Applicant’s submissions were before the Full Bench. Ground 5 is therefore advanced directly and is not conditional upon later verification of Item 66.

h.    The Applicant does not contend that the Full Bench was required to mention every submission. The alleged jurisdictional error is that it failed to engage with distinct and substantial components of the appeal actually advanced. Ground 1 included the Complainant 3 creation-date, metadata and chain-of-custody challenge, yet the reasons addressed the fabrication finding only in general terms. Ground 5 challenged the use of an unchanged ultimate denial as establishing that timely notice would have produced no further evidentiary, investigative or forensic response, yet the reasons addressed only the general proposition that procedural deficiencies may be outweighed. Ground 6 raised the Applicant’s exclusion from the handling of proposed phone-record evidence, but the reasons confined that ground to whether a private chambers meeting occurred. The Full Bench therefore failed to address the actual substance of material components relevant to whether the appeal disclosed an arguable case of appealable error and whether permission should be granted under s 400.

44    There are several components of Ground 5 that are difficult to follow. I will give three examples.

45    First, sub-paragraphs (a), (b), (d), (dA) and (h) of Ground 5 refer to “Complainant 3” and use the terms “Complainant 3 material” and “Complainant 3 creation date”. In his written submissions to the Court, the applicant introduced other terms, “Complainant 3 provenance challenge”, “Complainant 3 file provenance”, “Complainant 3 provenance issue”, and “Complainant 3 provenance and plausibility issue”. These are not terms that the applicant used in his notice of appeal to the Full Bench or in his written submissions to the Full Bench. In Ground 1 of his notice of appeal to the Full Bench the applicant did refer to —

the [Complainant 3] allegation digital forensic evidence showing highly inconsistent creation date based on the date of the allegations, metadata, and chain of custody.

46    However, this passage appeared in the context of the applicant’s claim that the Deputy President had erred by finding that the applicant had fabricated a text message from Ms Winsbury to himself, which was a separate issue, and in that context the above passage comes across as nonsense: see ground 1 of the notice of appeal to the Full Bench set out under [21] above. From the Full Bench’s perspective, this would have been compounded by the fact that the applicant’s written submissions to the Full Bench were also difficult to follow, the submissions purported to quote words from the Deputy President’s decision that did not appear in the decision, they raised irrelevant issues such as adverse action, they did not align with the grounds of appeal, they did not purport to address all the grounds of appeal, and they did not develop any submissions specifically directed to “digital forensic evidence showing highly inconsistent creation date based on the date of the allegations, metadata, and chain of custody”. Moreover, when regard is had to the reasons of the Deputy President, the fact of the applicant’s inappropriate communication with Complainant 3 was not in dispute before the Commission: see [11] above. Yet confusingly the applicant has incorporated references to Complainant 3 into his grounds of review and written submissions before the Court which are ostensibly directed to a different issue, being the Commission’s findings that the applicant fabricated the text message ostensibly from Ms Winsbury to himself.

47    Secondly, the applicant’s written submissions to the Full Bench contain paragraphs numbered 1 to 34 with no decimal sub-numbering. At subparagraph (d) of Ground 5 of the amended originating application the applicant refers to non-existent paragraphs of his submissions to the Full Bench “concerning the Complainant 3 creation-date, provenance and visual-impairment contentions”. There are no paragraphs 2.2, 3.1.2, 3.1.4, 3.3.2 or 3.3.3 of those submissions, and there is no reference in those submissions to the term “Complainant 3 creation-date”.

48    Thirdly, as to subparagraph (dA) of Ground 5, putting to one side the fact that it is difficult to follow because it blends different issues, to the extent that it refers to non-production of proposed records, that issue was not the subject of any ground of appeal before the Full Bench, or the subject of the applicant’s submissions to the Full Bench. There was no jurisdictional error by the Full Bench in not considering a ground of appeal that was not advanced.

Ground 5 – the applicant’s submissions

49    The applicant’s written submissions dated 25 May 2026 advanced the following brief submission directed to the claim of jurisdictional error by the Full Bench in deciding to refuse permission to appeal –

27.    The Full Bench decision should be set aside to the extent it left standing a primary decision affected by jurisdictional error. If the primary decision is vitiated, the Full Bench affirmance cannot give it independent legal force: Minister for Immigration v Bhardwaj (2002) 209 CLR 597. Alternatively, the Full Bench failed to recognise that the errors raised were legal process errors, not merely factual disagreements or merits complaints.

50    In his written reply submissions dated 24 August 2026 under the heading, “B. Ground 5: failure by the Full Bench to engage with substantial appeal contentions”, the applicant submitted —

3.    The three substantial contentions can be mapped precisely: (a) provenance: Form F7 Ground 1, reinforced by Item 66 at [3.3.2]-[3.3.3]; Full Bench [6] addressed fabrication generally, not the separate provenance challenge; (b) lost opportunity: Form F7 Ground 5, reinforced by Item 66 at [2.2], [3.1.2] and [3.1.4]; Full Bench [9] stated only that procedural deficiencies may be outweighed, not what timely notice could have enabled; and (c) phone records: Form F7 Ground 6; Full Bench [10] confined the issue to an alleged private meeting, not the open-court ownership/Pascoe Vale assertions, production direction, non-production and inability to test their foundation.

4.    The Full Bench was not required to examine every argument in detail, but it was required to apply its mind to the distinct grounds actually advanced under ss 400 and 604. By reducing the matters above to fabrication generally, generic procedural deficiency and an alleged private meeting, it did not engage with their substance. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] is relied upon only for the proposition that failure to address a substantial and clearly articulated case may amount to constructive failure to exercise jurisdiction.

51    The applicant’s outline of oral argument presented at the hearing did not advance matters much further and was also difficult to follow. The applicant emphasised a submission that the Full Bench did not substantively engage with substantial components of his case on his application for permission to appeal.

Ground 5 is rejected

52    There was no failure by the Full Bench to address the substance of the applicant’s grounds of appeal. The Full Bench addressed the applicant’s grounds in order and disposed of them. In paragraph 4 of the applicant’s reply submissions set out above, the following issues are identified.

53    The first issue relates to the Deputy President’s findings concerning the applicant’s fabrication of the text message purportedly from Ms Winsbury. Those findings turned on three features of the evidence before the Deputy President. The first was his acceptance of Ms Winsbury as a witness of credit. The second was his assessment of the applicant, whom he considered to be an unimpressive witness, who was not a witness of credit, and who made patently false claims. The third was the objective and circumstantial evidence to which the Deputy President referred. In these circumstances, where the findings were informed by witness credit, the Full Bench at FB [6] addressed the applicant’s challenge to the factual findings by holding that there was no arguable case that the findings were shown to be wrong by incontrovertible facts or that they were glaringly improbable and held that, on the contrary, the Deputy President’s factual findings were carefully reasoned and plainly open to him on the evidence.

54    The second issue identified relates to an alleged private meeting between the Deputy President and counsel for Stantec. Somewhat inconsistently, the applicant stated in subparagraph (f) of Ground 5 of his amended originating application that he does not maintain that such a meeting occurred. However, the Full Bench addressed the claim. It addressed the claim at FB [10] and rejected it on the ground that it was an unsubstantiated assertion that was not supported by the audio recording of the hearing and presented no arguable case of error.

55    For the foregoing reasons, the applicant has not established any jurisdictional error in the Full Bench’s decision to refuse permission to appeal. I will now turn to the grounds directed to the primary decision of the Deputy President.

Ground 1

56    Ground 1 is in the following terms –

Ground 1: Failure lawfully to perform the mandatory evaluative task under ss 387(b) and (c)

1.    The Primary Decision failed lawfully to perform the mandatory evaluative task concerning notice of the valid reasons and opportunity to respond under ss 387(b) and (c) of the Fair Work Act.

a.    The Primary Decision found that, before dismissal, the Applicant was not notified of the valid reasons ultimately found and was not given an opportunity to respond to those reasons.

b.    Stantec’s termination letter stated in substance that any further response in a show-cause process would be self-serving and misleading, that dismissal was inevitable and that there was no point in providing a further show-cause process. Stantec also issued Ms Rima Makin a permanent Senior Human Resources Business Partner agreement effective from 22 February 2025, 26 days before the Applicant’s termination on 20 March 2025. Those matters are relied upon only as context for the predetermination contention and the practical content of the denied opportunity, not to ask the Court to review Stantec’s staffing decision.

c.    At [115], the Deputy President relied on an exchange in which the Applicant was asked, in substance, whether he would have admitted that the disputed message was fake or doctored, admitted that Ms Winsbury had not sent it, or abandoned his position that she had sent it.

d.    The Applicant’s answer established only that his ultimate denial of fabrication would have remained unchanged. It did not answer the different statutory question whether proper and timely notice could have produced further information, investigation, objective evidence, technical material, requests for source records, or developed submissions capable of affecting the evaluative task under ss 387(b) and (c).

e.    The questions did not address whether timely notice would have enabled the Applicant to seek an adjournment, inspect source, account and device records, obtain carrier or technical information, explain the contact-card configuration, test the alleged transmission pathway, or provide a considered response concerning the limits of the available records.

f.    The exchange relied upon at [115] concerned only the alleged text-message dishonesty. It did not address what response the Applicant would have provided had he been notified before dismissal that his attempted contact with Complainant 3 was proposed as a separate valid reason for dismissal.

g.    At [116], the Primary Decision treated that confined exchange as establishing that the admitted deficiencies in notification and opportunity to respond could not have affected the outcome. The Applicant contends that this impermissibly equated maintenance of an ultimate denial with the futility of the distinct evidentiary, investigative and forensic opportunity required to be evaluated for each valid reason.

h.    The alleged error concerns the lawful performance of the statutory task. It is not a complaint that the Deputy President assigned insufficient weight to particular s 387 factors or an invitation to reweigh the evidence.

57    The subject-matter of Ground 1 appears broadly to correspond to Ground 5 of the applicant’s notice of appeal to the Full Bench which it rejected at FB [9].

58    In addressing Ground 1, it is necessary to observe that the applicant used the term “procedural fairness” in his submissions in different contexts resulting in some confusion in the presentation of his case. In relation to Ground 1, the applicant referred in his submissions to the “procedural unfairness” of his dismissal by Stantec, which is not a basis for claiming that there was any denial of procedural fairness by the Commission.

Ground 1 – the applicant’s submissions

59    In support of Ground 1, the applicant submitted that the Deputy President found that the applicant had not been notified of the valid reasons for dismissal ultimately relied upon by Stantec and had not been afforded an opportunity to respond to those reasons. The applicant submitted that, notwithstanding those findings, the Deputy President treated the deficiencies as immaterial on the basis that the applicant would have maintained the same position if given such an opportunity. The applicant submitted that this reasoning impermissibly proceeded by hindsight and failed to account for the response he might have made had proper notice been given before dismissal.

60    The applicant submitted that proper notice would have enabled him to address the specific allegations and evidentiary matters relied upon against him, including the fabrication allegation, the “contact-card theory”, the ownership of the relevant phone numbers, matters bearing on Ms Winsbury’s credibility and motive, and the provenance of the “Complainant 3 material”. He submitted that the relevant question was not whether he would have maintained his denial, but whether there was a realistic possibility that a fair opportunity to respond could have affected the reasoning process or outcome. In support, he cited High Court authority on the question of materiality in the context of jurisdictional error: Stead v State Government Insurance Commission (1986) 161 CLR 141, Hossain v Minister for Immigration [2018] HCA 34; 264 CLR 123, Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506, and LPDT v Minister for Immigration [2024] HCA 12; 280 CLR 321.

61    The applicant further submitted that the deficiencies were cumulative. He submitted that aspects of the case ultimately relied upon against him were not put to him before his dismissal, that material referred to during the Commission hearing was not transparently produced, and that a number of explanations and challenges advanced by him were not adequately addressed. The applicant submitted that, in circumstances involving findings of serious misconduct and dishonesty, those matters collectively resulted in “procedural unfairness” that could not be cured by reasoning that the outcome would have been the same.

Ground 1 is rejected

62    The applicant has not demonstrated any jurisdictional error by the Commission within the terms of Ground 1. His submissions do no more than quibble with the merits of the decision under a misconception as to the Commission’s task. The exercise in which the Commission was engaged was the evaluative task under s 387 of the FW Act in determining whether Stantec’s dismissal of the applicant was harsh, unjust, or unreasonable by reference to the mandatory criteria set out in s 387. The Commission was not concerned with the importation of general law principles concerning procedural fairness or materiality applicable to jurisdictional error. The Commission found in the applicant’s favour that he was not notified of the two valid reasons that justified his dismissal, and that he was not given an opportunity by Stantec to respond. However, this was outweighed by the other factors to which the Commission referred, including that in any response to Stantec the applicant would likely have maintained his false narrative. That was a finding of fact open to the Commission, and it was within jurisdiction because it was a permissible relevant consideration.

Ground 2

63    Ground 2 is in the following terms –

Ground 2: Material procedural unfairness concerning the late phone-record material

2.    The Primary Decision was affected by material procedural unfairness in the handling of proposed phone-record material and the associated ownership and geolocation assertions.

a.    During the hearing on 4 August 2025, Stantec’s counsel asserted, on the basis of newly obtained records, that [XXXX XXX 579] and [XXXX XXX 198] were both Stantec work-issued numbers and that the disputed message had been sent from Pascoe Vale, where counsel understood the Applicant lived. The Applicant immediately disputed the assertion concerning [XXXX XXX 198] and questioned how Stantec could have obtained phone records for his personal service. The ownership and location assertions were advanced together as objective support for Stantec’s case that the Applicant had sent the message to himself.

b.    The evidence and the Primary Decision materially contradicted the late ownership assertion. Ms Winsbury’s statement identified [XXXX XXX 198] as the Applicant’s usual mobile number, while her supplementary statement dealt separately with [XXXX XXX 579] as a second number. The evidence attributed to Ms Amanda Hughes concerned Stantec’s allocation and cancellation of [XXXX XXX 579]. Stantec’s transmission theory was that a message had been sent from [XXXX XXX 579] to [XXXX XXX 198]. The Primary Decision at [3] likewise identifies [XXXX XXX 579] as the work phone and [XXXX XXX 198] as the Applicant’s personal phone. The later Optus record is relied upon only to confirm service ownership of [XXXX XXX 198], not authorship, handset possession, transmission or location. The Optus email is aligned with Ms Windsbury’s [sic] statement surrounding the service being a personal mobile number of Mr Raghib.

c.    Deputy President Masson directed that the proposed records be provided to chambers and to the Applicant.

d.    The affidavit of Thomas Cockburn sworn on 2 April 2026 states that, during the adjournment ordered for that purpose, Stantec decided that the proposed material would not be tendered and therefore did not send it to chambers or to the Applicant.

e.    The hearing record does not record that decision or the reason for the departure from the direction being communicated to the Applicant when the hearing resumed.

eA.    Nor does the hearing record disclose that, when the hearing resumed, Stantec expressly withdrew or corrected the adverse assertions that both numbers were work-issued and that the disputed message had been sent from Pascoe Vale, or that the Deputy President was invited to disregard those assertions. The Applicant was therefore left to address an adverse evidentiary impression without access to the records said to support it.

f.    The Applicant therefore had no opportunity to inspect the proposed records, test their source, date range, scope or technical character, challenge the asserted ownership of [XXXX XXX 198], or determine whether the Pascoe Vale assertion represented reliable message-level geolocation, cell-site information, subscriber or billing data, a service address, or some other record incapable of locating the handset when the message was sent. Nor could he address the contradiction between the late assertion and Stantec’s existing evidence before the evidentiary process concluded.

g.    By email dated 15 April 2026, the Australian Government Solicitor informed the Applicant that chambers had conducted a thorough search and had not identified the requested document. The later material is relied upon only to clarify the historical procedure and materiality.

h.    The official hearing audio records the Deputy President describing the text-message issue as the direct evidence going to misconduct. The ownership and Pascoe Vale assertions were therefore capable of bearing directly on the central dishonesty allegation, the Applicant’s credibility and the valid-reason analysis.

i.    There was a realistic possibility that compliance with the direction, or timely disclosure that Stantec had withdrawn the proposed material together with an express withdrawal or correction of the ownership and geolocation assertions and a practical opportunity to respond, could have affected the reasoning or outcome. The alleged text-message fabrication was central to the findings concerning misconduct, credibility and valid reason. The Applicant does not ask the Court to determine who sent the disputed message or to determine the truth of the asserted location data.

64    The evidence before the Court includes an audio recording of part of the hearing in the Commission before the Deputy President under Tab 15 of the court book to which I referred earlier. I find that during the hearing before the Commission the following exchange took place —

Counsel:    Deputy President I have just been provided with evidence from -- Stantec records of the phone. Stantec’s records of both of Mr Raghib’s phone numbers that we have referred to today and it shows that his first mobile number – [no they are both work] – both of the phone numbers that I have referred to today in relation to Mr Raghib the first and the second number they were both work issued phones. [That is correct isn’t it?] – They were both work issued phones. That is why Amanda has, I am pretty sure, they were both – that’s right, yes

Instructor:    From the one ending in 579 to the one ending in 198

Counsel:    Yes, it shows because they are both work issued phones Stantec is able to obtain records of the phones and the text messages that are sent and we have just obtained evidence of the second number sending a text message to the first number from Pascoe Vale which is where I understand where Mr Raghib lives

65    The Deputy President stated that he would adjourn the matter for five minutes to allow the phone records to be provided to the applicant and to his chambers. During the course of the adjournment Stantec decided not to tender further material and therefore no further material was provided to the Commission or to the applicant. Upon the resumption of the hearing the cross-examination of the applicant continued. These findings are supported by the audio recording of the hearing immediately before and after the adjournment complemented by the unchallenged affidavit evidence of Mr Cockburn, who was the law graduate instructing counsel for Stantec before the Commission.

Ground 2 – the applicant’s submissions

66    In support of Ground 2, the applicant’s submissions focused on what he described as procedural unfairness in the treatment of the allegation that he fabricated the text message purporting to have been sent by Ms Winsbury. He submitted that the text-message issue became the central evidentiary issue in the proceedings before the Deputy President and that findings concerning the authorship of the message were reached through an unfair process. The applicant submitted that Stantec relied during the hearing upon assertions concerning phone records and the ownership of phone numbers, but that the material said to support those assertions was not transparently produced and was therefore unavailable for him to test or answer.

67    The applicant submitted that the significance of those matters was reinforced by evidence that one of the relevant phone numbers was his personal mobile service rather than a work-issued number. He submitted that this contradicted Stantec’s submissions at the hearing before the Deputy President and raised issues concerning the source and reliability of the material relied upon in support of the allegation that he fabricated the text message. The applicant submitted that the Deputy President’s findings concerning the text message depended materially upon a “contact-card theory” and associated inferences which were not put to him in advance. He submitted that he had advanced an alternative explanation for the relevant contact-card configuration and that, having regard to the seriousness of a finding that he had fabricated evidence, the matters relied upon against him should have been disclosed and tested in a procedurally fair manner.

68    The applicant also relied on evidence which he contended bore upon Ms Winsbury’s credibility and motive. He submitted that those matters were not adequately considered and that, taken together with the handling of the phone-record material, they denied him a practical opportunity to meet the case ultimately accepted by the Deputy President. He argued that there was a realistic possibility that the reasoning process or outcome may have been different had the relevant material been disclosed and the issues fairly engaged with.

Ground 2 is rejected

69    The substance of Ground 2 of the amended originating application before the Court was not the subject of any ground of appeal to the Full Bench or any submissions by the applicant to the Full Bench. Instead, the case advanced before the Full Bench was within Ground 6 of the notice of appeal which the Full Bench considered and rejected at FB [10]. That was a different case by which the applicant claimed that the Deputy President had engaged in a private ex parte communication with counsel for Stantec which gave rise to a reasonable apprehension of bias. As I have noted at [54] above, that is not a case that the applicant advances before the Court because the applicant stated in subparagraph (f) of Ground 5 of his amended originating application that he does not maintain that such a meeting occurred. The failure by the applicant to advance the substance of Ground 2 of his amended originating application as a ground of appeal before the Full Bench is a sufficient reason to deny him a remedy by reference to Ground 2.

70    In any event, Ground 2 lacks merit. The phone records to which counsel for Stantec alluded during the hearing before the Deputy President were not produced and were not the subject of evidence before the Commission. No reference was made by the Deputy President in his reasons to the existence or content of any such records. Instead, the Deputy President proceeded on the basis that the [XXXX XXX 198] number was the applicant’s personal number, which accorded with the applicant’s own case. No reference was made by the Deputy President in his reasons to the applicant sending the falsified message from his work phone at any particular location. That was not part of the material before the Commission. As to the applicant’s reference in his submissions to the “contact-card theory” not being put to him, there is nothing in this point either. The Deputy President’s reasons at PD [56] record that the applicant was cross-examined on the issue and that the material elements of the case that he had fabricated the text message were put to him.

Ground 3

71    Ground 3 is in the following terms –

Ground 3: Failure to engage with the Complainant 3 provenance contention contained in the hearing material

3.    The Primary Decision failed to engage with a substantial, clearly articulated contention concerning the provenance and reliability of the Complainant 3 material.

a.    The complaint was said to have been signed on 16 April 2024. The Applicant challenged the provenance of the PDF by reference to file properties displaying creation and modification at 8.18 am on 18th March 2025.

b.    The Digital Hearing Book supplied for the hearing before Deputy President Masson included, within the Applicant’s Reply Material at Item 34, pages 488 to 499, a screenshot at page 498 displaying the file properties for ‘49047-[Complainant 3] Investigation meeting notes signed.pdf’.

c.    During the Applicant’s cross-examination of Dr Kylie Ward on 5 August 2025, the Applicant raised the discrepancy. The Deputy President asked whether evidence before him established that the file had been created in March 2025. The Applicant identified the screenshot, stated that it was in the material and attempted to locate it during the hearing.

d.    The Applicant was self-represented, legally blind and participating remotely. His statement while searching that the screenshot may have been missed (to Deputy Mason [sic]) did not establish that it was absent from the hearing material. It was located at page 498 of the Digital Hearing Book.

e.    The Primary Decision nevertheless proceeded at [40]-[41] on the basis that the claimed digital-fingerprint evidence was not before the Commission, without addressing the screenshot at page 498, reconciling that objective record with what occurred orally, or substantively resolving the provenance contention raised in writing and in cross-examination.

f.    The Applicant does not ask this Court to determine that the complaint was fabricated, determine the evidentiary weight of the displayed file dates, or substitute its own factual findings. The alleged error is the failure to engage with a substantial contention and supporting material that formed part of the record before the Commission.

g.    The provenance contention concerned the reliability, authenticity and chain of custody of material relied upon in connection with a separate valid reason for dismissal. Had the Primary Decision engaged with the objectively identified screenshot displaying the file properties of the “49047-[Complainant 3] Investigation meeting notes signed.pdf”, there was a realistic possibility that the assessment of the provenance and authenticity of that material would have affected the evaluation of the Applicant’s credibility and the finding that the Applicant fabricated the disputed text message. The Respondents did not provide an explanation reconciling the asserted execution date of the document with the later creation and modification dates displayed in the screenshot. That unresolved inconsistency was capable of bearing upon the reliability of the Respondents’ evidence more generally. The significance of that issue is reinforced by the later hearing assertion that both [XXXX XXX 579] and [XXXX XXX 198] were Stantec work-issued numbers, notwithstanding Ms Winsbury’s evidence and the Primary Decision itself identifying [XXXX XXX 198] as the Applicant’s personal mobile number. Considered cumulatively, those unresolved inconsistencies were capable of affecting the evaluation of credibility, reliability, motive (by the respondent) and the ultimate reasoning.

72    Subparagraph (a) of Ground 3 refers to a creation and modification date of 18 March 2025, whereas the applicant’s submissions to the Court referred to a creation and modification date of 12 March 2025. I will assume that the reference to 18 March 2025 is a typographical error, but any error in the date is not material to the outcome of this application.

73    The Deputy President found that on 16 April 2024 Complainant 3 signed a statement of complaint alleging that the applicant sexually harassed her: PD [23]. The Deputy President stated that a witness, Dr Ward, was adamant that Complainant 3 signed the complaint on 16 April 2024: PD [23]. The Deputy President found Dr Ward to be candid, forthright, and consistent in her evidence: PD [71]. On 3 March 2025, Stantec sent the applicant, via his solicitors, a show cause letter. The show cause letter referred to Complainant 3’s complaint: PD [38]. Stantec requested the applicant to respond by 7 March 2025: PD [40]. On 11 March 2025, the applicant attempted to contact Complainant 3: PD [42]. It does not appear that there was any dispute that the applicant had attempted to contact Complainant 3 because the reasons at PD [43] refer to the cross-examination of the applicant about his reasons for attempting to contact Complainant 3, and the reasons record that the applicant agreed that his attempted contact was inappropriate. The applicant via his solicitors responded to the show cause notice the following day, 12 March 2025, and on 20 March 2025 Stantec gave written notice terminating the applicant’s employment immediately, referring amongst other things to his attempted contact of Complainant 3.

74    The Deputy President’s reasons addressed a claim by the applicant that Complainant 3’s complaint was not made in April 2024 but had been created in March 2025 in order to cast doubt on the validity of the complaint. The applicant’s written outline of submissions before the Commission at first instance claimed that the “digital fingerprint” of the complaint showed that it was created on 12 March 2025, and not 16 April 2024. I understand “digital fingerprint” to be a reference to the document metadata. The written submissions before the Commission included the applicant’s reply submissions in which he stated that while the allegation by Complainant 3 was signed on 16 April 2024, it was not raised by Stantec until the show cause letter of 3 March 2025. The applicant then submitted to the Commission —

The Respondent has been unable to produce the original digital complaint file upon request. The file provided has a digital fingerprint of 12 March 2025, raising serious questions about its authenticity and potential tampering (see appendix I).

75    Attached to the applicant’s reply submissions to the Commission was a screenshot from a Mac computer of the properties of a PDF document titled “49047-[Complainant 3] Investigation meeting notes…”. The properties indicate that the PDF document was both created and modified on 12 March 2025 at 8.18 am. However, in determining whether any evidentiary weight was to be attached to this screenshot, regard would also have to be had to surrounding objective evidence in the court book and which was before the Commission, including that Stantec emailed a copy of Complainant 3’s statement to the applicant’s solicitors two days beforehand, on 10 March 2025 at 4.10 pm in response to a request from the applicant’s solicitors made by email on 6 March 2025. The surrounding evidence would also include the applicant’s evidence in cross-examination referred to at PD [43] that he attempted to contact Complainant 3 on 11 March 2025 — the day prior to the creation date on the screenshot — upon reading her allegations against him.

76    The Deputy President addressed the applicant’s challenge to the validity of the complaint by Complainant 3 at PD [40]–[41] and rejected it, stating amongst other things that the evidence of the “digital fingerprint” of the document to support the claim that it was not genuine was not before the Commission. Otherwise, the Deputy President referred to the “digital fingerprint” evidence being put to Dr Ward in cross-examination, and to her evidence that she was adamant that the complaint was signed by Complainant 3 on 16 April 2024, and that she was unable to comment beyond speculation that the “digital fingerprint” evidence might have simply recorded the date on which it was provided to the applicant.

Ground 3 – the applicant’s submissions

77    The applicant submitted that before the Commission he had challenged the provenance of Complainant 3’s complaint on the basis that the properties of the PDF file showed creation and modification on 12 March 2025, although the complaint was said to have been signed on 16 April 2024. He submitted that whether the file properties ultimately established the challenge was not the immediate question, but that dates in the properties were on their face inconsistent with the asserted provenance of April 2024 and so required meaningful engagement.

78    The applicant submitted that the official audio of the hearing on 5 August 2025 recorded the issue being put to Dr Ward, who answered in substance that there was confusion about when the file had been saved and that saving and creation dates may differ, and then recorded the Deputy President asking whether there was evidence establishing creation in March 2025, to which the applicant answered that there was screenshot evidence which should be in the material, although it may have been missed. I pause to note that the audio of the full hearing before the Commission is not in evidence on this application: see [36] above. However, the cross-examination of Dr Ward is referred to in the Deputy President’s reasons: see [76] above, referring to PD [41].

79    The applicant submitted that the reasons at PD [40] to [41] nonetheless proceeded on the premise that the “digital fingerprint” evidence was not before the Commission. Relying on Dranichnikov, the applicant submitted that a failure to engage with a substantial and clearly articulated argument may amount to a constructive failure to exercise jurisdiction. The applicant accepted that the Commission was not required to accept the provenance challenge; his claim is that the Commission was required to grapple with the challenge, and that because the issue bore upon grounds supporting a valid reason for his termination, proper engagement carried a realistic possibility of affecting the Commission’s path of reasoning. The applicant submitted that the provenance of Complainant 3’s statement bore on his state of mind when he attempted to contact Complainant 3 on 11 March 2025, and that there was a realistic possibility that it could have affected the weight to be given to that justification for his termination in the evaluation of the factors under s 387 of the FW Act.

Ground 3 is rejected

80    Ground 3 is rejected for three reasons.

81    The first reason is that while it appears that the Deputy President did not refer specifically to the screenshot of the properties of the PDF document in addressing the applicant’s submissions, he did address the applicant’s claim that the complaint by Complainant 3 was not a genuine complaint by accepting the evidence of Dr Ward, which included her evidence in cross-examination that she was unable to comment on the metadata beyond speculation that it might have simply recorded the date on which the document was provided to the applicant. The Deputy President’s statement that the evidence of the “digital fingerprint” was not before the Commission was no more than a subordinate finding, and if it was an error then it was a factual error within jurisdiction. It was not the type of error referred to in Helensburgh by which the Commission misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question required of it, or misunderstood the nature of the opinion which it was required to form. Nor was this an instance where the Commission failed to address a central claim made by the applicant amounting to a constructive failure to exercise jurisdiction or a denial of natural justice.

82    The second reason is that the applicant has not demonstrated that the Deputy President’s failure to refer specifically to the metadata for the PDF document was material to the real issue under consideration, which was the applicant’s admitted inappropriate attempt to communicate with Complainant 3 as a matter that justified his dismissal. The applicant’s submissions to the Court did not deal with the other objective evidence that was before the Commission that the document was in existence before the date on the screenshot of the document properties that the applicant annexed to his reply submission to the Commission. I do not accept that the Commission’s failure to refer specifically to the screenshot of the properties was material to the outcome when amongst other things the Commission had regard to the cross-examination of Dr Ward in relation to the issue. The applicant has failed to discharge his onus of showing that if the Commission had referred to the screenshot there was a realistic possibility that the outcome could have been different: LPDT v Minister for Immigration [2024] HCA 12; 280 CLR 321 at [7].

83    The third reason is that, as a matter of discretion, I would not give the applicant any relief by reference to Ground 3. The applicant did not clearly articulate his complaint about the “digital fingerprint” evidence in his notice of appeal to the Full Bench or in his written submissions to the Full Bench. Instead, the claim was referred to in a confusing and obscure fashion within Ground 1 concerning the fabricated text message and there was no submission to the Full Bench that the Deputy President had erred in stating at PD [40] that evidence of the “digital fingerprint” was not before the Commission.

Ground 4

84    Ground 4 is in the following terms –

Alternative Ground 4: Reasonable apprehension of prejudgment

4.    Alternatively, the Primary Decision was affected by circumstances which, considered cumulatively, gave rise to a reasonable apprehension of prejudgment.

a.    Deputy President Masson had previously conducted the related General Protections conference in C2024/5720 and had thereby been exposed to the wider workplace-rights dispute before determining U2025/3948. Prior involvement is relied upon only as part of the cumulative objective circumstances and not as sufficient, by itself, to establish apprehended bias.

b.    During the hearing, before the evidence and submissions had concluded, the Deputy President described assertions made by the Applicant as plainly wrong, directed him not to make false assertions when questioning a witness, and stated during cross-examination that difficulty obtaining what he regarded as obvious concessions did not assist him in dealing with the Applicant’s evidence.

c.    At [71]-[73], before addressing the individual matters under s 387, the Deputy President made a general adverse credit finding against the Applicant and stated that, where the Applicant’s evidence conflicted with direct evidence from Stantec’s witnesses, Stantec’s evidence would be preferred unless otherwise stated.

d.    The Applicant contends that the prior involvement, the statements made before the hearing concluded, the general adverse credit approach, and the treatment of the phone-record and provenance issues provide the necessary logical connection to a reasonable apprehension that the remaining procedural and statutory questions might not be approached with an impartial mind.

e.    The Applicant does not allege actual bias and does not contend that prior involvement, firm case management, adverse findings or strong language alone establish apprehended bias.

85    It was not in dispute that the Deputy President had been assigned to conciliate the general protections application not involving dismissal that the applicant had filed with the Commission in August 2024.

86    As to the applicant’s reliance on statements made by the Deputy President during the hearing in sub-ground 4(b), no record of the hearing before the Commission in the form of an authorised transcript is in evidence: see [36] above.

Ground 4 – the applicant’s submissions

87    The applicant submitted that Ground 4 was a sufficient basis for relief if established. He submitted that the ground concerned a reasonable apprehension of prejudgment, and that the applicable objective test was that stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner).

88    The applicant submitted that credibility was a live issue throughout the hearing before the Commission and that his evidence conflicted with the first respondent’s evidence on matters central to the ultimate reasoning. He submitted that during the hearing before the Commission, and before the evidence and submissions had concluded, the Deputy President made comments concerning assertions being plainly wrong, warned the applicant against making false assertions when questioning a witness, and stated that difficulty in obtaining what he regarded as obvious concessions did not assist him in dealing with the applicant’s evidence. The applicant relied upon those mid-hearing comments, their timing, and their connection to credibility. The applicant submitted that credibility was also contested in relation to Ms Winsbury, with the primary decision recording competing accounts concerning disgruntlement, an issue relating to a medical-certificate, and performance concerns, including Ms Winsbury’s denial of any retaliatory motive for her complaint.

89    The applicant submitted that the Commission’s credit findings at PD [71] to [73] adopted a general credit approach under which, where his evidence conflicted with direct evidence from the respondent’s witnesses, their evidence would generally be preferred unless otherwise stated. He submitted that the concern was not simply that adverse credibility findings were ultimately made but sought to rely on what he described as the cumulative connection between the mid-hearing credibility comments, the unresolved evidentiary disputes, and the breadth of the later approach to credit, in circumstances where credibility questions were central to the case.

90    The applicant accepted that the Deputy President rejected some of the first respondent’s claims and submitted that this demonstrated that his mind was open on at least some issues. The applicant submitted, however, that this did not resolve the distinct question whether a fair-minded observer might reasonably apprehend that the Commission’s mind was not open on the particular credibility disputes that he identified.

91    In his oral submissions at the hearing, the applicant purported to address Ground 4 but in a way that appeared to confuse a claimed predetermination by Stantec to terminate his employment with his claim of reasonable apprehension of prejudgment by the Commission.

Ground 4 is rejected

92    There is nothing that appears to resemble the substance of Ground 4 in the applicant’s notice of appeal to the Full Bench or in his written submissions to the Full Bench in support of his application for permission to appeal. While the applicant made claims of apprehended bias in his submissions to the Full Bench, those claims were directed to his unsubstantiated allegation, which he no longer pursues, that there had been a private meeting in chambers between the Deputy President and counsel for Stantec. The failure to raise any of the matters the subject of Ground 4 before the Full Bench is a dispositive reason to refuse a remedy to the applicant by reference to Ground 4.

93    Furthermore, Ground 4 lacks merit. I will take each of subparagraphs (a) to (d) of Ground 4 in turn.

94    In relation to subparagraph (a) of Ground 4, the applicant correctly conceded within the terms of that subparagraph that the Deputy President’s prior involvement in the conciliation conference in the applicant’s general protections application was not sufficient, by itself, to constitute apprehended bias. The applicant has failed to articulate any logical connection between the claim that the Deputy President conciliated his earlier general protections claim and any reasonable apprehension that he might deviate from deciding the unfair dismissal claim on its merits based upon some objectively credible reason: see Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8; 428 ALR 575 at [1] and [42] (Gageler CJ and Gleeson J), [60] (Gordon J), [105] (Edelman J), [126] (Steward J), [130] (Jagot J), and [173] to [176] (Beech-Jones J).

95    In relation to subparagraph (b) of Ground 4, a transcript of the hearing before the Deputy President is not in evidence before the Court and therefore there is no factual basis for the claims in that subparagraph. Further, the matters identified would not, without more, give rise to a reasonable apprehension of prejudgment as they appear to be ordinary incidents of an adversarial hearing process before the Commission: Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [34] (McHugh, Kirby and Callinan JJ); Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

96    In relation to subparagraph (c) of Ground 4, the making of adverse credit findings against the applicant did not give rise to a reasonable apprehension of prejudgment. The ordinary course of hearing and determining an unfair dismissal application involves the Commission making a decision. To make a decision is not prejudgment. The Deputy President had the benefit of seeing the applicant and the other witnesses give their evidence. The adverse credit findings were a legitimate element of the Deputy President’s path of reasoning in rejecting the applicant’s claims. There is nothing to suggest that the adverse credit findings were not open, and there is no logical connection between the making of adverse credit findings and the applicant’s claim of apprehended bias.

97    In relation to subparagraph (d) of Ground 4, it follows from the above that cumulatively none of the matters relied on by the applicant gave rise to a reasonable apprehension of prejudgment.

Conclusion

98    The proceeding will be dismissed. The first respondent foreshadowed an application for costs: see FW Act s 570(2). I will hear the parties on costs.

Associate:

Dated:    15 September 2026