Abdul Aboud v Nickal Pty Ltd T/A Plan & Grow - [2024] FWCFB 198

[2024] FWCFB 198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Abdul Aboud
v

Nickal Pty Ltd T/A Plan & Grow

(C2023/8115)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT BELL
DEPUTY PRESIDENT HAMPTON

MELBOURNE, 26 APRIL 2024

Appeal against decision [2023] FWC 3216 of Deputy President Beaumont at Perth on 5 December 2023 in matter number U2023/9816 – permission to appeal refused.

Mr Abdul Aboud seeks permission to appeal and to appeal the decision (Decision) of Deputy President Beaumont given on 5 December 2023 rejecting his application for an extension of time to make an application for an unfair dismissal remedy against the respondent under s 394 of the Fair Work Act 2009 (Cth) (Act).[1]

Procedural history

As the Decision records, there is a procedural history to Mr Aboud’s application for appeal, which is necessary to set out.

Relevantly, Mr Aboud first filed a Form F8 application on 11 November 2022. A second Form F8, with some additional information, was lodged on 12 November 2022. A Form F8 is an application used to commence a ‘general protections’ claim involving dismissal, made under s 365 of the Act. In Mr Aboud’s submissions in support of his application to appeal, he states that he also lodged an unfair dismissal application on 11 or 12 November 2022, or perhaps that he intended to do so – we return to this contention below.

There was initially a question as to whether Mr Aboud’s Form F8 application was lodged within time, because there was a dispute as to what date Mr Aboud’s employment was terminated. This issue was dealt with by Commissioner Schneider, who published a decision[2] on 28 July 2023. The Commissioner rejected the respondent’s submission that Mr Aboud was terminated on 28 July 2021 and instead found that the date of dismissal was 11 November 2022; accordingly, the Commissioner concluded that Mr Aboud’s general protections application was made within the 21-day period required by s 366 of the Act.[3] Mr Aboud was legally represented at the hearing.

There was and remains no challenge to Commissioner Schneider’s finding that the date of dismissal took effect on 11 November 2022.[4]

With the jurisdictional objection concerning alleged lateness having been dismissed by Commissioner Schneider, the Deputy President’s decision records that, on 4 September 2023, Mr Aboud’s general protections application was listed for a private conference pursuant to s 368(1) of the Act. That conference, which was conducted on 26 September 2023, did not lead to a resolution of the application and a certificate was issued under s 368 of the Act. [5] Mr Aboud was legally represented at the conference by the same lawyers.

The following day, on 27 September 2023, Mr Aboud engaged different lawyers, being the lawyers who represented him before us on his application to appeal.

On 4 October 2023, Mr Aboud’s new representatives sought the respondent’s consent for an arbitration, before the Commission, of Mr Aboud’s general protections claim. By s 369 of the Act, the Commission is empowered to conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCFB 198
Decision Date: 26 APRIL 2024

CaseChat Overview and Summary

Abdul Aboud sought permission to appeal against the decision of Deputy President Beaumont, which rejected his application for an extension of time to make an unfair dismissal remedy application against Nickal Pty Ltd T/A Plan & Grow. The primary issue was whether there was an arguable case of appealable error justifying the grant of permission to appeal. Abdul Aboud argued that the Deputy President erred in finding that his unfair dismissal application was out of time and that there were no exceptional circumstances justifying an extension. The Full Bench considered the grounds of appeal, noting that many were based on a scattergun approach and did not represent arguable errors of fact. Specifically, the Full Bench found that the Deputy President correctly accepted that Abdul Aboud had not lodged an unfair dismissal application within the required 21-day period. The Full Bench also concluded that the public interest did not favour granting permission to appeal, as the decision did not manifest an injustice or require guidance from an appellate body. Consequently, the Full Bench refused permission to appeal.

Deputy President Gostencnik, Deputy President Bell, and Deputy President Hampton delivered the decision. The appeal was heard in Melbourne via video conference on March 12, 2024. N Nyamirandu represented the appellant, and R Greig represented the respondent.

Orders