DECISION

Fair Work Act 2009
s.604—Appeal of decisions

Mahmoud Hasan Abulamoun
v
Nathan Jackson
(C2020/6438)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKINNON

MELBOURNE, 21 OCTOBER 2020

Appeal against decision [2020] FWC 4056 of Deputy President Saunders at Newcastle on 3 August 2020 in matter number U2020/7218 – permission to appeal refused.

[1] Mahmoud Hasan Abulamoun operates a trolley collection business servicing the Green Hills East Maitland Shopping Complex in New South Wales. He has applied for permission to appeal a decision of Deputy President Saunders issued on 3 August 2020 1 (the Decision) granting an unfair dismissal remedy to Nathan Jackson, his former employee.

[2] Mr Abulamoun says the Decision is affected by significant errors of fact and that permission to appeal should be granted in the public interest because of the Deputy President’s conduct of the proceedings, which he says involved extreme bias, threats, intimidation and exploitation of his basic understanding of the English language.

[3] For the reasons that follow, we have decided to refuse permission to appeal.

The nature of unfair dismissal appeals

[4] An appeal under section 604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing however the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 An appeal may only be made with the permission of the Commission.

[5] Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to an unfair dismissal application unless it considers that it is in the public interest to do so. An appeal from an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[6] The test under s 400 has been characterised as “stringent”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.4 In GlaxoSmithKline Australia Pty Ltd v Makin5 a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”

[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6

[8] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for…

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: [2020] FWCFB 5593
Decision Date: 21 OCTOBER 2020

CaseChat Overview and Summary

Mahmoud Hasan Abulamoun, the applicant, brought an appeal before the Full Bench of the Fair Work Commission against a decision of Deputy President Saunders, handed down on 3 August 2020 in matter number U2020/7218. The applicant sought to challenge the deputy president’s dismissal of his unfair dismissal application against Nathan Jackson, the respondent. The applicant had alleged that he was unfairly dismissed by the respondent in circumstances where the dismissal was harsh, unjust or unreasonable. The appeal was dismissed by the Full Bench, with permission to appeal being refused.

The primary legal issue before the Full Bench was whether the decision of the deputy president was correct in law and just in the circumstances. This involved an assessment of whether the applicant had established that his dismissal was harsh, unjust or unreasonable. The Full Bench had to determine if the deputy president’s findings were supported by the evidence and whether any errors in law had been made which could have affected the outcome. The Full Bench also needed to consider if the deputy president had correctly applied the principles of natural justice and procedural fairness in reaching his decision.

The Full Bench found that the deputy president’s decision was correct and just. The Full Bench held that the applicant had not established that his dismissal was harsh, unjust or unreasonable. The Full Bench noted that the deputy president had carefully considered the evidence and had applied the relevant legal principles correctly. The Full Bench also found that the applicant had not demonstrated that any errors in law had occurred, and that any procedural issues had been adequately addressed. Consequently, the Full Bench dismissed the appeal and refused permission to appeal.

Orders