1
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 20201 (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.
1 Nathan Jackson v Mahmoud Hasan Abulamoun [2020] FWC 4056
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to section 607(2); see Coal
and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[2020] FWCFB 5593
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 5593
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[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 the Full Bench to conduct a detailed examination of the grounds of appeal.7
Consideration
[9] The primary findings at issue in this proceeding are set out at paragraphs [43] to [45]
of the Decision, as follows:
“[43] I have no hesitation in finding that Mr Jackson’s employment relationship with
Mr Abulamoun came to an end on 21 May 2020. The relationship did not come to an
end on 20 May 2020. Notwithstanding the clear text message sent in anger by Mr
Badger to Mr Jackson on the afternoon of 20 May 2020, Mr Abulamoun told Mr
Jackson on the evening of 20 May 2020 that he still had a job. Although Mr Jackson
told Mr Abulamoun that he could not see the issue being resolved and hung up, Mr
Jackson did not tell Mr Abulamoun that he quit or resigned or any words to that effect.
Instead, Mr Jackson attended the Centre on the following morning to find out what
was happening with his job. Neither Mr Badger nor Mr Jackson backed down from the
opposing positions they had taken the previous day about Mr Jackson’s early departure
from work on 20 May 2020. Mr Jackson then received a text message from Mr
Badger, on instructions from Mr Abulamoun, informing him that there would not be
any shifts available for him “at present” and he would be put “on call for fill in shifts
and let you know when there is more work available”. No other employee received
such a message. Mr Jackson was never sent another roster or offered another shift. Mr
3 Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) (2011) 192 FCR 78 at
[43]
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
5 [2010] FWAFB 5343, 197 IR 266 at [27]
6 Wan v AIRC (2001) 116 FCR 481 at [30]
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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Badger and Mr Abulamoun blocked Mr Jackson’s mobile telephone number, so he
could not contact them. These facts and circumstances, considered together, would
indicate to any reasonable person that the employment relationship between Mr
Jackson and Mr Abulamoun was over.
[44] Further, I am satisfied that Mr Jackson was dismissed within the meaning of s
386(1)(a) of the Act. There is no suggestion that Mr Jackson was forced to resign
within the meaning of s 386(1)(b) of the Act. It is clear that Mr Jackson did not agree
to the termination of his employment with Mr Abulamoun. It was the conduct of Mr
Abulamoun, as summarised in the previous paragraph, which was the principal
contributing factor which resulted, directly or consequentially, in the termination of
Mr Jackson’s employment with Mr Abulamoun. I am also satisfied that Mr
Abulamoun’s conduct, as summarised in the previous paragraph, establishes that he
intended to bring his employment relationship with Mr Jackson to an end, or at the
least, had the probable result of bringing his employment relationship with Mr Jackson
to an end. There was no realistic prospect of Mr Jackson remaining in employment
with Mr Abulamoun after he received the text messages from Mr Badger on 21 May
2020, had his mobile telephone number blocked by Mr Abulamoun and Mr Badger,
and, unlike other employees who worked for Mr Abulamoun at the Centre, did not
receive any further rosters or offers of work.
[45] I find that Mr Jackson was dismissed on 21 May 2020. The communication of
the dismissal took place by reason of a combination of the content of Mr Badger’s text
messages to Mr Jackson on 21 May 2020 and the conduct summarised in paragraph
[43] above.”
[10] Mr Abulamoun contends that the Deputy President erred in concluding that Mr
Jackson was dismissed. He also takes issue with the finding at paragraph [30] of the Decision
extracted below:
“[30] …Mr Jackson did not have any further communication with Mr Abulamoun or
Mr Badger after his discussion with Mr Badger on the morning of 21 May 2020, apart
from during the course of these proceedings.”
Grounds of appeal
[11] There are nine grounds of appeal raised by Mr Abulamoun against the Decision. We
deal with each below.
Failure to acknowledge serious and imminent risk to reputation, viability and profitability of
the employer’s business by Mr Jackson’s conduct
[12] This ground of appeal relates substantially to the Deputy President’s decision to prefer
the evidence of Mr Jackson over the evidence of his supervisor, Dylan Badger, in relation to
an altercation between them on 21 May 2020 as well as Mr Jackson’s conduct generally on 20
and 21 May 2020, which Mr Abulamoun now suggests amounted to serious misconduct. In
support of the accusation that Mr Jackson was “out for revenge executing his premeditated
plan of quitting his job for government benefits”, he asserts that Mr Jackson:
1. abused Mr Abulamoun and quit his job on 20 May 2020;
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2. exaggerated or fabricated his leg injury on 20 May 2020;
3. threatened violence towards Mr Badger on 21 May 2020;
4. made complaints to Centre security about Mr Badger on 21 May 2020;
5. tried to get other employees to quit and walk off the job;
6. made attempts to report Mr Abulamoun to Centre management to damage his business;
7. stated that he wanted to destroy Mr Abulamoun’s business; and
8. failed to inquire about his job in his conversation with Mr Abulamoun on 21 May
2020.
[13] Mr Abulamoun seeks to run a different case on appeal from the one he put before the
Deputy President. At first instance, Mr Abulamoun submitted that Mr Jackson had not been
dismissed at all, and that he would still be employed if he had not filed his unfair dismissal
application (see paragraph [53] of the Decision). It is fundamental to the proper
administration of justice that the substantial issues between the parties are ordinarily settled at
the first instance proceeding.8 On appeal a party will be held to its case at first instance,
except in the most exceptional circumstances.9 Therefore it is generally not in the public
interest to allow a person to run new arguments on appeal and we would decline to do so in
this case. The fact than Mr Abulamoun disagrees with various factual findings does not speak
to any arguable error on the part of the Deputy President. To the extent that this ground of
appeal also puts into question the fact or degree of Mr Jackson’s leg injury on 20 May 2020,
we deal with it further below.
Failure to consider the nature of casual work
[14] Mr Abulamoun submits that the remedy granted to Mr Jackson of 7 weeks’ pay was
inconsistent with the nature of his employment as a casual employee whose work was not
guaranteed.
[15] Federal unfair dismissal laws cover casual employees who are employed on a regular
and systematic basis and who have a reasonable expectation of continuing employment.
Evidence in the proceedings was adduced as to the rosters worked by Mr Jackson during his
employment. At paragraph [6(b)] of the Decision, the Deputy President made express findings
about the nature of Mr Jackson’s employment as a casual employee. He found both that Mr
Jackson was employed on a regular and systematic basis and that he had a reasonable
expectation of continuing employment with Mr Abulamoun on a regular and systematic basis.
It appears to us that each of these findings was reasonably open on the evidence and we
discern no arguable case of error.
[16] Mr Abulamoun asks why compensation was set at seven weeks’ pay when casuals
have no guarantee of employment. But as the Deputy President explained, the Act required
8 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7
9 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483
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him to consider what Mr Jackson would have been likely to earn in his employment with Mr
Abulamoun, had he not been dismissed. The Deputy President estimated that the employment
would have continued for eight weeks, and that Mr Jackson would have been rostered to work
12.7 hours a week, which was the average of Mr Jackson’s earnings in the last three weeks of
his employment. At paragraphs [69] to [91] the Deputy President determined compensation in
the conventional way, including by reliance on the established Sprigg10 methodology and later
authorities. The Deputy President took into account the varying rates of pay that applied to Mr
Jackson for different shifts and rosters. We discern no arguable case of a significant error of
fact or other appealable error in this regard.
Failure to consider the full context of the phone call made on 20 May 2020
[17] This ground of appeal asserts that the Deputy President failed to acknowledge
Mr Jackson’s statement in a telephone call to Mr Abulamoun on 20 May 2020 to the effect of
“I have had enough of this shit and I am over it”.
[18] Paragraph [18] of the Decision deals with the conversation in question. We accept that
no statement of the kind attributed to Mr Jackson is recorded expressly in the Decision, but
that is not to say that it was either ignored or discounted. More likely, the Deputy President
did not consider it a matter of significance because it had no material impact on the
continuation of the employment relationship. The Deputy President made findings that were
consistent with Mr Abulamoun’s evidence to the effect that he had assured Mr Jackson in the
conversation on 20 May 2020 that he “still had a job”. He went on to find that the
employment did not come to an end until the following day.
[19] We are not persuaded that there is any arguable case of error in the Decision
associated with the absence of any reference to the statement attributed to Mr Jackson. In any
event, it is not apparent to us that the statement necessarily warranted any special weight, such
as to give rise to an arguable case of significant error of fact.
Failure to hear witness statements
[20] This ground of appeal relates to an alleged refusal by the Deputy President to hear
from a witness who could attest to Mr Jackson’s ulterior motive for his conduct and his unfair
dismissal application, allegedly being his preference to cease employment and remain at home
on ‘jobseeker’ payments during the COVID-19 pandemic.
[21] Directions issued by the Deputy President on 1 July 2020 required the parties to file
and exchange witness evidence by 15 and 22 July 2020 respectively. The directions expressly
stated as follows:
“Each party must arrange for any witness they wish to call to give evidence to (a) attend
the hearing on 28 July 2020 and (b) prepare a witness statement, which must be filed
and served in accordance with directions 1 and 2 above.”
[22] Mr Abulamoun did not file any witness evidence of the kind he now complains about.
10 Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21
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[23] The transcript of hearing reveals that there was no refusal by the Deputy President to
hear from any witness. The Deputy President expressly asked Mr Abulamoun about the
witnesses in his case at PN40-1. Mr Abulamoun agreed with the Deputy President that his two
witnesses were himself and Mr Badger, the former supervisor of Mr Jackson. He did not seek
to bring any further witness evidence or even foreshadow to the Deputy President that there
was relevant evidence not yet before the Commission.
[24] It was incumbent on Mr Abulamoun, if he sought to adduce evidence of this kind, to
do so by the dates set out in directions issued by the Deputy President or at least to raise the
issue with the Deputy President so that it could be considered. He did not do so.
[25] No arguable case of appealable error arises.
Failure to provide a medical report as to Mr Jackson’s injury
[26] By this ground, Mr Abulamoun submits that the Deputy President erred in accepting
the fact of Mr Jackson’s leg injury without medical evidence.
[27] At paragraph [16] of the Decision, the Deputy President recorded that after telling his
supervisor that he was in pain and had to go to hospital, Mr Jackson was driven by his wife to
Maitland Hospital, where he was x-rayed, informed that he had pulled four or five muscles in
his leg, and given anti-inflammatory tablets to take. The findings relied on evidence given by
Mr Jackson in transcript from PN77 to PN89.
[28] The Deputy President had the benefit of observing each of the witnesses giving sworn
evidence in the proceedings. There is no arguable case of the Deputy President having erred
by accepting the evidence of Mr Jackson as given, particularly where no contradictory
evidence was before him.
[29] No arguable case of error is made out by this ground.
Falsely establishing Mr Jackson’s good character without evidence
[30] This ground of appeal asserts a lack of evidence about Mr Jackson’s claimed
membership of the SAS fire service (we take this to be a reference to New South Wales’
Rural Fire Service or ‘RFS’). Mr Abulamoun suggests that this evidence led the Deputy
President to find Mr Jackson a witness of good character, when he should have found his
character lacking due to unreliability for work in the latter months of his employment.
[31] Mr Abulamoun separately asserts that Mr Jackson’s unreliability was reason enough to
warrant termination of employment. As we noted above, this is not a submission that Mr
Abulamoun made before the Deputy President. It is inconsistent with his separate contentions
that Mr Jackson was not dismissed and that he still had a job. It is also relevant that, as the
Deputy President observed at paragraph [64] of the Decision, there was no evidence before
him of any disciplinary proceedings in relation to Mr Jackson’s reliability.
[32] Mr Jackson gave direct evidence of his involvement in the fire service (see, for
example, the transcript at PN275-9). Among the various text messages adduced in the
proceedings, there is a photograph on 22 November 2018 that appears to be from the cabin of
a truck attending at the scene of a fire. The photo is posted by Mr Jackson in response to a
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question about whether he is available to work that evening. It is accompanied by a series of
‘emojis’ with crying faces, also posted by Mr Jackson. At least two further references to fire
service-related activities – one in Bulga on 6 January and one in Wyong on 9 February – belie
Mr Abulamoun’s assertion that there was no evidence of these matters in the proceeding.
Evidence from Mr Badger appears to acknowledge Mr Jackson’s fire service role.
[33] There was an obvious evidentiary foundation for the relationship between Mr Jackson
and the fire service. Even if it were lacking, the fact of Mr Jackson’s participation in fire
service activities does not appear to have informed any of the critical findings made by the
Deputy President in this case.
[34] No arguable case of appealable error is made out on this basis.
Extreme bias, threats and intimidation
[35] By this ground of appeal, Mr Abulamoun alleges that the Deputy President:
threatened him with orders for the payment of compensation to Mr Jackson in the
amount of either 7 or 26 weeks pay;
advocated for Mr Jackson while disregarding his evidence; and
made him stand up for the duration of the hearing while allowing Mr Jackson to
remain seated, making him feel uncomfortable.
[36] None of the allegations finds any support in the transcript of proceedings. We surmise
that the first allegation is a reference to discussion in conciliation before the determinative
conference commenced. If following the conciliation Mr Abulamoun did not wish the Deputy
President to conduct the determinative conference, he should have said so. Again, Mr
Abulamoun raises on appeal a matter not advanced at first instance. The second assertion
appears to us to be inconsistent with both the transcript and the Decision. As to the third, the
Deputy President expressly invited Mr Abulamoun to be seated on more than one occasion
during the hearing (see PN32, PN355 and PN430).
[37] The transcript discloses a courteous and cooperative exchange between the Deputy
President and the parties throughout a determinative conference of 2.5 hours duration. There
is no basis to apprehend an arguable case that the Deputy President’s conduct of the
proceedings denied Mr Abulamoun a fair hearing.
Exploitation of Mr Abulamoun’s failure to understand proceedings due to level of English
competency
[38] This ground of appeal asserts that the Deputy President took advantage of Mr
Abulamoun’s limited English skills to advocate for Mr Jackson, coach him in his answers and
not take the time to understand if Mr Abulamoun had understood what was being said. Mr
Abulamound says that without an interpreter, he was at a disadvantage. Finally, it alludes to
the possibility of racial discrimination due to Mr Abulamoun’s middle eastern appearance.
[39] These assertions are devoid of support in the transcript or any other source. Mr
Abulamoun did not indicate that he was having difficulty understanding the proceedings or
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presenting his case at any time during the hearing. As to the question of English language
competency, Mr Abulamoun did not request an interpreter to assist him in dealing with the
matter. He expressly answered ‘No’ to the question of whether an interpreter was required in
the Form F3 Employer Response dated 20 June 2020.
[40] On our reading of the transcript, the Deputy President spoke in plain English during
the hearing, explained the process to be followed and outlined considerations that were
relevant to his decision-making role. At appropriate times on more than one occasion, he
offered Mr Abulamoun the opportunity to ask questions and to say anything he wished to say
in support of his case. Again, we discern no arguable case that Mr Abulamoun did not receive
a fair hearing.
Failure to consider the phone call made on 21 May 2020
[41] By this ground of appeal, Mr Abulamoun asserts that the Deputy President erred in
finding that Mr Jackson was dismissed on 21 May 2020. He submits that Mr Jackson resigned
in a telephone call between them on 21 May 2020 when Mr Jackson told Mr Abulamoun “you
can stick your job up your ass” (sic). However, Mr Abulamoun made no mention of this
alleged remark by Mr Jackson in the proceeding before the Deputy President. At best, the
evidence was confused as to the content of the telephone calls on 20 and 21 May 2020. In
effect, Mr Abulamoun seeks leave to introduce new evidence on appeal. We would decline to
accept it. This evidence would plainly have been highly relevant and there is no reason why
Mr Abulamoun could not have referred to it in his filed materials or his oral evidence. Given
the importance of this remark in Mr Abulamoun’s appeal submissions, it is frankly difficult to
accept that he simply omitted to mention it to the Deputy President.
[42] It appears to us that there is perhaps one arguable error of fact in the Decision. The
Decision at paragraph [30] contains a finding that there was no communication between Mr
Jackson and Mr Abulamoun at or after this time. The witness statement of Mr Jackson refers
to a telephone conversation between Mr Jackson and Mr Abulamoun after the altercation
between Mr Jackson and Mr Badger on 21 May 2020. The evidence on transcript is less clear
but does not appear to contradict Mr Jackson’s witness evidence. However, it does not appear
to us that, if this is an error of fact, it is one of any consequence, because the only point of any
significance about this call appears to be the claim raised now for the first time on appeal by
Mr Abulamoun that Mr Jackson made the profane statement referred to above, which
connotes a resignation.
[43] The Deputy President found that Mr Jackson’s employment had already come to an
end by the time the telephone call was made. That finding turned on Mr Jackson being the
only employee of the business to have been sent a message about lack of shifts due to a
downturn in work to do the COVID-19 pandemic (despite evidence that there was no actual
downturn) and the fact that his number had been blocked by both Mr Abulamoun and Mr
Badger. The finding was reinforced by the lack of any future rostered shifts afforded to Mr
Jackson. We see no arguable case of appealable error in this finding.
Is permission to appeal in the public interest?
[44] As we noted at the outset, an appeal of an unfair dismissal decision can only proceed if
the Commission is satisfied that the grant of permission is in the public interest.
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[45] Of the nine grounds of appeal raised by Mr Abulamoun, only the last raises an
arguable case of error, yet it is one which appears to us to have been without consequence and
not one that could be described as significant for the purpose of s 400.
[46] This is not a matter that raises any issues of general importance or application. It turns
on its own facts and circumstances. No injustice or counter intuitive result is manifest. In
these circumstances, we are not satisfied that granting permission to appeal is in the public
interest. To the contrary, a grant of permission would require the allocation of public
resources to an appeal that appears to lack utility.
Conclusion and disposition
[47] Permission to appeal is refused.
DEPUTY PRESIDENT
Determined on the papers by consent of the parties
Printed by authority of the Commonwealth Government Printer
PR723704
C AMI ISSION WORK THE THE FAIR SEAL
