The case that asks: can a misconduct investigation double as retaliation?
The Federal Court struck out a bus driver's claim over his dismissal for misconduct, while keeping his retaliation argument very much alive.
On 13 March 2026, the Federal Court of Australia struck out a claim brought by Wael Rizkalla, a self-represented former CDC Geelong Pty Ltd bus driver, over his November 2024 dismissal. The ruling did not touch the substance of his claims, and his core argument that he was punished for speaking up remains live.
Rizkalla had worked for the Geelong-based bus operator since late 2018, serving as both an elected health and safety representative and a union delegate. In those roles, he regularly raised concerns about what he described as unsafe rostering practices and fatigue management.
Things escalated in late October 2024. On 22 October 2024, he emailed management raising concerns about proposed roster changes and their impact on driver safety. Three days later, he attended a union meeting. That same day, a complaint was lodged alleging he had driven unsafely. He was stood down on full pay and lodged a formal grievance on 28 October 2024 while an investigation was conducted, a show-cause meeting was held on 14 November 2024, and he was dismissed for serious misconduct on 15 November 2024.
CDC Geelong's position was unambiguous. It had "determined that the applicant had driven in an unsafe manner in breach of employment policies, amounting to serious misconduct, and that the applicant's employment was terminated on that basis and for that reason only."
Rizkalla disputed this, describing the driving incident as a low-speed manoeuvre to avoid a hazard that caused no damage or injury. He argued the misconduct finding was a pretext, and that his dismissal "was not based on any actual misconduct but was a retaliatory measure for exercising his workplace rights."
He also alleged he was denied a meal break and travel expense reimbursement after the union meeting, and claimed a general manager had on 15 December 2022 threatened to "get rid of" him if he continued raising fatigue concerns. He further argued that other employees who had committed genuine safety breaches received only warnings, pointing to this as evidence of inconsistent and retaliatory treatment.
Rizkalla's claims also include alleged age discrimination, alleged coercion in relation to the exercise of his workplace rights, underpayments and alleged breaches of the National Employment Standards and the applicable enterprise agreement. Three individuals were named as respondents alongside the company: Amandeep (Aman) Singh, Paul Giusti and Craig Muller, with Rizkalla alleging each was personally involved in the contraventions.
Muller has since died, and the court noted no steps have yet been taken to regularise the parties to the proceeding in light of this development.
Justice Horan found the Amended Statement of Claim too lengthy, confusing and structurally difficult to navigate, and struck it out on 13 March 2026. Rizkalla has until 24 April 2026 to file a revised claim. The parties have also been directed to attend a case management conference before a Registrar before 10 April 2026, to clarify the issues of fact and law in dispute between the parties, inform the preparation of Rizkalla's further amended statement of claim, and facilitate subsequent pleadings. Notably, the respondents did not argue he lacks a reasonable cause of action. The question of costs remains unresolved, with parties directed to file submissions by 20 March 2026.
For employers and their management teams, the case raises several practical considerations. Dismissals made in close proximity to workplace rights activity, such as raising safety concerns or attending a union meeting, will draw scrutiny. Inconsistent disciplinary treatment across the workforce is also a factor to watch, as comparisons between how different employees are treated can be used to support claims of improper motive. The case is also a reminder that under the Fair Work Act, individuals can be personally named in proceedings, not just the employing entity.
