Fair Work Act 2009

s.604 - Appeal of decisions

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.

[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 Makin[5] 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]

[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 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."

[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;

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.

[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 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 Sprigg[10] 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.

[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.

[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 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.

[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 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.

[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.

Determined on the papers by consent of the parties

[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] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[3] Coal & Allied Mining Services Pty Ltd v Lawler and others (Buchanan, Marshall and Cowdroy JJ) [2011] FCAFC 54; (2011) 192 FCR 78 at [43]

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (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] FCAFC 54; (2011) 192 FCR 78 at [44] -[46]

[5] [2010] FWAFB 5343, 197 IR 266 at [27]

[6] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[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

[10] Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21

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