DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Husam Shamoon
v
Cabin Services Australia
(U2018/12538)

COMMISSIONER WILSON

MELBOURNE, 14 JUNE 2019

Application for an unfair dismissal remedy.

[1] This decision concerns the merits of Husam Shamoon’s dismissal by Cabin Services Australia (CSA) which provides cabin cleaning and associated services to airlines across Australia. Until his dismissal, Mr Shamoon was employed by CSA at Tullamarine, Melbourne.

[2] After discussion with the parties about the appropriate way to proceed, the matter proceeded by way of a determinative conference. Mr Shamoon was self-represented and assisted by several different interpreters. CSA was represented by Mr Rogan McMahon and Mr Paul Borobokas from the AiGroup.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Shamoon’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

[4] Evidence was given in these proceedings by Ms Danica Nguyen, a former Air Services Operator and Mr Shamoon for the Applicant; and, for the Respondent, by Ms Daniela Armone, the HR and Compliance Manager, Ms Hilal Cukur, Coordinator, Mr Aaron Watson, Station Manager and Ms Lute Leiseni Teputepu, a Leading Hand.

[5] Ms Armone records the company’s business as a requirement to “service 44 different airlines at airports nationwide, this includes international airlines. Our services include cleaning and restocking our client's aircrafts in between flights, biowaste management biowaste removal, linen supplies, in-flight entertainment and passenger transport”. 1 According to CSA’s submissions Mr Shamoon was first employed by the company on 21 November 2016.2 The work he performed involved cleaning and preparing for flight aircrafts for various domestic and international airlines at Melbourne Airport. As may be expected, his work involved shift work although until relatively close to the date of his termination of employment he worked predominantly day shifts, switching to night shifts from around October 2018.3

[6] Mr Shamoon remained employed with CSA until the termination of his employment for reason of serious misconduct on 30 November 2018.

[7] Mr Shamoon worked as a High Lift truck driver and when driving the vehicle worked with one other person, referred to sometimes as a “jockey”. On the day of his dismissal Mr Shamoon was driving the vehicle with a jockey named Tung Le. Part of the task of the two, and especially of the driver, is to approach the aircraft with the truck and raise the platform so that it is level with the aircraft door.

[8] On 23 November 2018, Mr Shamoon was sent a text message in Arabic from…

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: [2019] FWC 2260
Decision Date: 14 JUNE 2019

CaseChat Overview and Summary

The case of Husam Shamoon v Cabin Services Australia was heard in the Fair Work Commission, an Australian tribunal established to adjudicate on workplace disputes. The applicant, Mr Husam Shamoon, brought a claim against his former employer, Cabin Services Australia, alleging that his dismissal was unjust and unfair. The central issue was whether the employer had just cause to terminate Mr Shamoon's employment and whether the dismissal process was procedurally fair.

The legal issues before the Commission involved determining whether Cabin Services Australia had valid grounds to dismiss Mr Shamoon and if the process adhered to the Fair Work Act 2009. The Commission needed to examine the employer’s evidence to establish if the dismissal was related to genuine operational requirements and if Mr Shamoon was given a fair opportunity to respond to the allegations against him. Additionally, the Commission considered whether any procedural errors during the dismissal process could have prejudiced the outcome.

The Commission found that Cabin Services Australia had acted within its rights to dismiss Mr Shamoon due to a significant breach of trust, as substantiated by the employer’s evidence. The employer demonstrated that Mr Shamoon's actions warranted dismissal, and the process followed was procedurally fair. The Commission emphasised that Mr Shamoon was provided with all necessary information and an opportunity to be heard, thus concluding that the dismissal was both substantively and procedurally fair. Consequently, the application for unfair dismissal remedy was dismissed.

Orders