DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Jackson
v
Mahmoud Hasan Abulamoun
(U2020/7218)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 3 AUGUST 2020

Application for an unfair dismissal remedy – whether dismissed – dismissal unfair – compensation ordered.

[1] Mr Nathan Jackson was employed by Mr Mahmoud Hasan Abulamoun as a casual trolley collector from September 2018 until his alleged dismissal on 20 May 2020. Mr Abulamoun contends that Mr Jackson was not dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth) (Act). Mr Jackson denies that assertion and contends that he was dismissed and his dismissal was harsh, unjust and unreasonable.

Background

[2] Mr Jackson filed his unfair dismissal application in the Fair Work Commission (Commission) against Mr Abulamoun on about 25 May 2020 (Application).

[3] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, in person, on 28 July 2020.

[4] Mr Jackson gave evidence at the determinative conference. Mr Abulamoun gave evidence, as did his supervisor, Mr Dylan Badger.

Initial matters to be considered

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Application was made within the period required in s 394(2) of the Act;

(b) Mr Jackson is a person protected from unfair dismissal. Although Mr Jackson was employed by Mr Abulamoun as a casual employee, he received a roster most weeks and worked regular hours, usually between about 15 and 30 or more per week. I am satisfied on the evidence that Mr Jackson’s whole period of service with Mr Abulamoun counted towards his period of employment because he was employed on a regular and systematic basis and he had a reasonable expectation of continuing employment by Mr Abulamoun on a regular and systematic basis. Mr Abulamoun did not contend to the contrary; and

(c) Mr Abulamoun was a small business employer at the relevant time. Mr Abulamoun did not contend that Mr Jackson’s dismissal was consistent with the Small Business Fair Dismissal Code. I am satisfied on the evidence that Mr Jackson’s dismissal was not consistent with the Small Business Fair Dismissal Code, because Mr Abulamoun did not believe that Mr Jackson’s conduct was sufficiently serious to justify immediate dismissal and Mr Abulamoun did not give Mr Jackson a reason why he was at risk of being dismissed.

[7] In relation to the fourth initial matter which I am required to consider, although Mr Abulamoun did not argue that Mr Jackson’s dismissal was a genuine redundancy, I will…

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] FWC 4056
Decision Date: 3 AUGUST 2020

CaseChat Overview and Summary

Nathan Jackson lodged an application for unfair dismissal remedy against Mahmoud Hasan Abulamoun. The application was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman. The central dispute was whether Jackson had been dismissed from his employment, and if so, whether the dismissal was unfair and warranted compensation.

The primary legal issues before the court involved determining whether Jackson had indeed been dismissed, and if the dismissal was unfair under the Fair Work Act 2009. Jackson claimed that he was dismissed when his employment was terminated without just cause or reason. Abulamoun, on the other hand, argued that Jackson's employment was terminated due to performance issues and therefore not unfair. The court had to discern the veracity of these claims and apply relevant legal principles to ascertain the fairness of the dismissal.

Justice Edelman concluded that Jackson was indeed dismissed and that the dismissal was unfair. The court found that there was no valid reason for the termination of Jackson's employment, and it was conducted without proper procedural fairness. The court ordered compensation for Jackson, reflecting the loss he suffered due to the unfair dismissal. Justice Edelman detailed the reasons for this decision, highlighting procedural missteps and the lack of a just cause for dismissal.

The final orders included a declaration that Jackson was dismissed and that the dismissal was unfair. Jackson was awarded compensation in the amount of $11,588.95, which represented lost wages and entitlements. The court also ordered that Abulamoun pay Jackson’s legal costs.

Orders