Abdelrahman El Wazni v Metro Trains Melbourne Pty Ltd t/a Metro Trains Melbourne
[2022] FWCFB 122
•13 JULY 2022
| [2022] FWCFB 122 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Abdelrahman El Wazni
v
Metro Trains Melbourne Pty Ltd t/a Metro Trains Melbourne
(C2022/3479)
| Vice President Hatcher COMMISSIOENR HAMPTON COMMISSIONER WILSON | SYDNEY, 13 JULY 2022 |
Appeal against decision [2022] FWC 1163 of Deputy President Clancy at Melbourne on 13 May 2022 in matter number U2022/2762.
Introduction and background
Mr Abdelrahman El Wazni has applied, pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) for permission to appeal a decision made by Deputy President Clancy on 13 May 2022[1] (decision) to dismiss Mr El Wazni’s application for an unfair dismissal remedy against Metro Trains Melbourne Pty Ltd t/a Metro Trains Melbourne (respondent).
On 4 March 2022, Mr El Wazni made an application to the Fair Work Commission (Commission) for a remedy under s 394 of the FW Act. In his Form F2 – Unfair Dismissal Application, Mr El Wazni advised he was notified of his dismissal on 18 January 2022 and that the termination took effect “around” 15 February 2022. On this basis he maintained his application was made within 21 calendar days of his dismissal taking effect.
In the Form F3 – Employer Response to unfair dismissal application, the respondent objected to Mr El Wazni’s application on the basis that it was lodged out of time. It was the position of the respondent that Mr El Wazni was notified of his dismissal on 18 January 2022 and the dismissal took effect on the same day.
A conciliation before a Commission staff member was scheduled to take place on 7 April 2022. Mr El Wazni corresponded with Commission staff both confirming the time and date of this conciliation, and, on the day of the conciliation, requesting an adjournment, which was refused. The conciliation did not proceed as, at the appointed time of the conciliation, Mr El Wazni was uncontactable and did not respond to follow-up contact from the Commission.
Following allocation to the Deputy President on 19 April 2022, directions were issued for the filing of material which required the parties to address both the effective date of dismissal and, if it was determined that the application had been lodged outside the 21-day statutory timeframe, whether or not an extension of time for filing should be granted (directions). Under the directions, Mr El Wazni was required to file and serve his material by no later than 3:00 pm on 6 May 2022.
Mr El Wazni did not comply with the directions. On 9 May 2022, the Deputy President sought Mr El Wazni’s advice by 3:00 pm on 10 May 2022 as to whether he intended to file any material. Shortly thereafter that same day, the respondent requested that the Deputy President dismiss Mr El Wazni’s application if he failed to comply with the new deadline. No response was received from Mr El Wazni by the deadline.
Despite this further non-compliance, at 3:59 pm on 10 May 2022, correspondence was sent from the Deputy President’s chambers directing Mr El Wazni to explain his non-compliance and file material in compliance with the directions. The Deputy President advised Mr El Wazni that if he did not do so by 12:00 pm on 11 May 2022, his unfair dismissal application would be dismissed without further notice pursuant to s 587 of the FW Act.
Mr El Wazni replied by email at 10:26 am on 11 May 2022, stating the following:
“Hello all.
The employer has a record of everything, delays, past communications and workplace relation policies since first engagement. Any reasonable justification should be provided by the employer as to why things are the way they are. So far as I’m concerned I’m not interested in going through the trouble to look/search for it. If there are specific deadlines to meet that I may be unaware of, feel FREE to give me a shout as I don’t check my emails regularly. Your hands aren’t tied are they?
Hopefully that makes sense.”
The Deputy President determined the hearing on 13 May 2022 would proceed notwithstanding Mr El Wazni’s failure to provide the requested materials.
Mr El Wazni was 15 minutes late to this hearing, which was held via a Microsoft Teams video link. He did not have his camera on and, when he was directed by the Deputy President to turn his camera on, Mr El Wazni refused. Following a further direction by the Deputy President to turn his camera on on the basis that the matter was a hearing before the Fair Work Commission, Mr El Wazni again refused and demanded that certain individuals from the respondent be in attendance. The Deputy President then gave Mr El Wazni a final opportunity to turn his camera on, and directed that if he did not do so, the matter would be determined on the basis of the material already before him. When asked by Mr El Wazni what this material was, the Deputy President noted that it was limited due to his failure to comply with the directions. Mr El Wazni then said “You haven’t had a happy Friday. Alright, thank you very much for your time.”
The Deputy President then asked Mr El Wazni to confirm that he was not going to turn on his camera to participate and Mr El Wazni repeated his demand that certain individuals from the respondent attend. The Deputy President asked Mr El Wazni whether he intended to proceed with his application and he replied, “Why do you think I am here?” When the Deputy President said “please answer my question”, Mr El Wazni replied, “Alright Deputy President, you have a happy Friday, ok? Thank you.” Mr El Wazni then disconnected himself from the video link.
Later on 13 May 2022, the Deputy President issued the decision which is now the subject of this appeal.
The decision
In his decision, after setting out the procedural difficulties associated with Mr El Wazni’s non-compliance with the directions and his conduct during the hearing of the matter, the Deputy President turned to his consideration under s 587 of the FW Act, which relevantly provides:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
. . .
(3) The FWC may dismiss an application:(a) on its own initiative; or
(b) on application.
The Deputy President noted that paragraphs (a), (b) and (c) of s 587(1) do not limit the Commission’s power to dismiss matters for other reasons and s 587(3) of the Act provides for the Commission to dismiss an application on its own initiative. He further noted that the Full Bench of the Commission in Sayer v Melsteel Pty Ltd[2] held that s 587(1) provides for the dismissal of a matter without examining the merits where the applicant has failed to prosecute their case.
The Deputy President then referred to Viavattene v Health Care Australia (Viavattene), where the Full Bench stated that:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s 381).”[3]
In accordance with Viavattene, the Deputy President observed that it was the responsibility of Mr El Wazni “to take the best advantage of the opportunity presented”[4] to present his case, and found that he had “elected not to do so.”[5] Despite what the Deputy President considered had been a reasonable opportunity afforded to Mr El Wazni to present his case, he found that Mr El Wazni had behaved in a “puerile” manner at the hearing and, as well as failing to attend the conciliation, did not comply with the directions and failed to file submissions, witness statements or documentation in support of his application.[6]
On this basis, the Deputy President determined that it was appropriate for him to exercise the discretion vested in the Commission under s 587 of the FW Act to dismiss Mr El Wazni’s application for want of prosecution. An order to that effect was issued in conjunction with the decision.[7]
The appeal proceedings
Mr El Wazni lodged his F7 – Notice of Appeal on 14 June 2022. The Fair Work Commission Rules 2013 (Rules) provide that appeals must be commenced within 21 days after a decision is issued, or “within such further time as is allowed” (rule 56(2)). Mr El Wazni’s notice of appeal was filed 11 days after the 21-day time period, and accordingly he is required to seek an extension of time to file an appeal against the decision. The notice of appeal incorrectly names Deputy President Clancy and the Fair Work Commission as the respondents in the appeal. Mr El Wazni was notified of this error via a telephone call from the Commission on 14 June 2022 but he was resistant to making this amendment to his notice of appeal.
On 15 June 2022, a further call was made to Mr El Wazni by the Commission and a message was left requesting that corrected respondent information be provided and advising that the matter would be at risk of being dismissed absent such information. No response was received from Mr El Wazni in relation to this request, but, nonetheless, Commission staff updated the file for the appeal to specify the respondent as “Metro Trains Melbourne Pty Ltd t/a Metro Trains Melbourne”, consistent with the original decision, and the matter proceeded.
Also on 15 June 2022, the presiding member’s chambers sent the parties directions (appeal directions) and a notice of listing outlining the details of the hearing of the appeal and instructions for filing submissions. The notice of listing specified that the hearing would be by video link before a Full Bench at 11:30 am on Monday, 4 July 2022. The location of the hearing was specified to be the Melbourne and Sydney offices of the Fair Work Commission and the addresses of these two locations were also given. The notice of listing further directed the parties to refer to the attached appeal directions. The appeal directions required Mr El Wazni to lodge with the Commission and serve on the respondent an outline of submissions by 5:00 pm on Friday, 24 June 2022.
On 22 June 2022 at 3:55 pm, correspondence was sent from the presiding member’s chambers to Mr El Wazni notifying him that the appeal book, which is required to be lodged by an appellant under rule 56(3) of the Rules as part of their appeal, had been due in the Commission on 21 June 2022 and was, as of the 22nd, overdue. Mr El Wazni was requested to advise as a matter of urgency when this would be filed.
Mr El Wazni provided a response at 4:23 pm on 22 June 2022. He claimed that he had been admitted into hospital and, on this basis, requested the matter be rescheduled with new deadlines. The presiding member’s chambers responded to this correspondence at 4:36 pm on the same day, notifying Mr El Wazni that he was required to provide medical evidence of incapacity in order to support the request for the rescheduling of the hearing, and that this evidence should be provided as soon as possible.
The correspondence from the presiding member’s chambers also sought to clarify the relevant deadlines in the filing of documents for the appeal to Mr El Wazni: it detailed that his outline of submissions was currently due on 24 June 2022, that the appeal book was a separate document that was due in the Commission seven days after the lodgement of a notice of appeal and that, as Mr El Wazni had lodged his notice of appeal on 14 June 2022, his appeal book had been due by 21 June 2022.
A response was received from Mr El Wazni on 26 June 2022 reiterating that he was in hospital and currently did not have an indication as to when he would be released, but that he would aim to file the necessary documents for his appeal “as soon as I can”. He also raised a concern that the relevant decision-makers were not present in the original hearing and stated, “this adds more question marks on the entire process and the basis of the decision/order.”
In response to a query from the respondent as to whether the appeal directions remained in force following Mr El Wazni’s non-compliance, on 29 June 2022 the presiding member’s chambers sent correspondence to the parties confirming that the appeal directions did remain in force but, as of that date, no appeal book or submissions had been received from Mr El Wazni in accordance with the appeal directions.
On 1 July 2022, correspondence was sent and a call was made to Mr El Wazni requesting information regarding his planned attendance at the hearing scheduled for 4 July 2022 for the purpose of the Commission’s security arrangements. During the call, made at 11:49 am, Mr El Wazni advised that he would not be attending the scheduled hearing in person and would only be in attendance if he were allowed to appear remotely by Microsoft Teams, as he was still in hospital. The associate informed him that it was likely he would need to provide medical evidence for there to be alternate arrangements for his appearance, and Mr El Wazni informed her that he had no capacity to provide this documentation while in hospital.
For unrelated reasons, at 12:52 pm on 1 July 2022 the presiding member’s chambers notified the parties that the scheduled hearing would be altered from an in-person hearing to an online hearing via a Microsoft Teams video link. This was done via an amended notice of listing.
On 2 July 2022, notwithstanding that the hearing was now by video link as he had requested the previous day, Mr El Wazni sent through correspondence to the presiding member’s chambers stating he would not be able to attend as he was still in hospital. On 4 July 2022 at 8:53 am, the presiding member’s chambers responded that, as medical evidence had not been provided as directed, the hearing would proceed at the scheduled time and, should he not attend, the matter would be determined on the basis of materials currently before the Full Bench.
At 11:31 am on 4 July 2022, following Mr El Wazni’s failure to attend at the scheduled time by joining the hearing via the Microsoft Teams video link provided, a call was made to Mr El Wazni by a Commission staff member to enquire about his appearance. Mr El Wazni advised the Commission staff member that he remained in hospital and would only be able to attend if provided a link to proceedings. The Commission staff member advised Mr El Wazni that a notice of listing was issued to all parties on 1 July 2022 converting the hearing to one occurring online by Microsoft Teams video link, and providing such a link. Mr El Wazni then advised that he was still in hospital and would be unable to participate as he did not have the necessary resources and participation would be detrimental to his mental wellbeing. The Commission staff member advised that she understood that the Commission had been notified of his alleged admission to hospital and was currently awaiting medical evidence of this. Mr El Wazni responded that this documentation had been requested from hospital staff and he was also awaiting it.
The Commission staff member then asked Mr El Wazni to confirm that he did not intend to participate in the scheduled hearing, and he advised he did not. On this basis, the Commission staff member informed him the hearing would proceed in his absence and his matter would be determined based on the material already before the Full Bench.
The result of the above events was that Mr El Wazni had still not filed an appeal book, written submissions or any medical evidence supporting his adjournment request by the time the hearing commenced, nor was he in attendance. This was notwithstanding the fact that Mr El Wazni was clearly able to engage with the Commission by email and telephone. The presiding member noted on the record that Mr El Wazni had until the end of the week (that is, Friday, 8 July 2022) to provide evidence of his medical circumstances to the Commission and, if no persuasive evidence were provided by then, the Full Bench would proceed to issue a decision. Mr El Wazni was notified of this by way of correspondence sent from the presiding member’s chambers at 1:39 pm on 4 July 2022.
No such evidence was provided by the deadline, nor has any further communication been received from Mr El Wazni. Accordingly, the matter is now determined based on the materials already before the Full Bench. This is limited to the notice of appeal filed by Mr El Wazni and one email sent by him on 26 June 2022.
Appeal grounds
Mr El Wazni’s first ground of appeal is that the Deputy President erred in stating in his decision that Mr El Wazni was 15 minutes late to the hearing and, rather, it was the Deputy President who was 21 minutes late to the hearing. As a second ground of appeal, Mr El Wazni further submitted that he wished to appeal the decision on the basis that “the Audio recording has definitely been tampered with as well as the meeting lasted longer than what is in the released Audio recording and my statements have been chopped (I.e Photoshopped and out of place).”
In relation to the question of whether the grant of permission to appeal would be in the public interest, Mr El Wazni submitted that it was in the best interest of the public to “be aware that this is a serious matter” and that misconduct by the Commission has “serious detrimental effects on people’s lives” due to its status as a public authority that is intended to be impartial.
Mr El Wazni’s email to the presiding member’s chambers on 26 June 2022 raised a further concern that relevant decision-makers from the respondent were not present at the original hearing and said that he had “made it very clear” and “thought this was also clear for the commission that the decision makers who are the people / team that I work with are needed to be present however they weren’t. Therefore, this adds more question marks on the entire process and the basis of the decision/order.”
Consideration
Given that the appeal was filed out of time, Mr El Wazni must satisfy us that time should be extended to appeal against the decision pursuant to rule 56(2)(c) of the Rules.
Permission is required for Mr El Wazni’s appeal should an extension of time be granted. Furthermore, the Deputy President’s decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)). It is convenient to first deal with the prospects of Mr El Wazni being granted permission to appeal and then to consider the matter of an extension of time for the filing of the appeal within that context.
This test in s 400(1) a stringent one.[8] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[10] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[11] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[12]
For the reasons which follow, we do not consider that it is at all arguable that it would be in the public interest to grant permission to appeal in this matter. Firstly, Mr El Wazni’s grounds of appeal have no prospects of success. As to his first ground of appeal, Mr El Wazni’s contention that he was not late to the hearing is neither correct, nor, even if it were made out, would it constitute a significant error of fact. The Deputy President’s decision to dismiss Mr El Wazni’s application under s 587 was not founded upon his lateness to the hearing. Rather, it was predicated on Mr El Wazni’s pattern of failure to prosecute his case by reason of a patent unwillingness to comply with any direction of the Commission. Mr El Wazni’s failure to prosecute his case at the hearing was not because of his lateness, but rather by reason of his refusal to turn on his camera despite the repeated direction from the Deputy President to do so.
Regarding the accuracy of Mr El Wazni’s contentions regarding his attendance at the hearing below, on 20 April 2022 a notice of listing was sent to Mr El Wazni detailing the time and date of the scheduled hearing as 10:00 am on 13 May 2022 and that it would be taking place via a Microsoft Teams video link. The notice also provided the link to use in order to join the hearing and instructions that “Parties must connect to the Hearing through the link provided above no later than 10 minutes prior to commencement.” Mr El Wazni did not follow these instructions, and the Deputy President’s associate telephoned him at 10:04 am querying his non-attendance. The link was resent to him during the call, at 10:10 am, following which he was able to join. Considering the instruction that parties were to join the hearing using the link provided no later than 10 minutes prior to commencement, it appears clear that Mr El Wazni was at least 15 minutes late to the proceedings, if not more so. In any event, the hearing commenced with Mr El Wazni in attendance and his complaint, even if accurate, would not found a reversal of the decision.
As to the second ground of appeal, Mr El Wazni had already raised the contention that the transcription of the hearing was tampered with in previous correspondence to the Deputy President’s chambers. Following this correspondence, on 23 May 2022, he was invited to make a formal request for the audio recording of the hearing so that its accuracy might be verified. Mr El Wazni provided a completed audio request form later that day, and was provided with access to the audio for the hearing by Epiq, the Commission’s external monitoring and transcription service provider.
Mr El Wazni then raised a number of concerns with Epiq regarding the accuracy of the recording with which he had been provided. Emails from an Epiq Operations Manager to Mr El Wazni at 1:10 pm on 1 June 2022 and 4:16 pm on 8 June 2022 confirmed that the audio had not been altered in any way and, despite Mr El Wazni’s contentions to the contrary, he had been provided with the full and complete recording of the matter.
Mr El Wazni has provided nothing to support his allegations concerning tampering with the audio recording of the hearing, nor has he explained in any event how this is demonstrative of any appealable error in the decision. This ground is also without any merit.
Mr El Wazni’s desire for the presence of certain individuals he considered relevant decision-makers in the hearing was not a matter he raised at any point with the Deputy President’s chambers prior to the hearing. Further, as the hearing related only to the question of whether the application had been made within time, rather than the merits of the matter, it is unlikely that the evidence of any such decision-makers would have been relevant to the question under consideration.
Secondly, apart from being completely without merit, Mr El Wazni’s appeal grounds do not raise any issue of law, principle or general application that might attract the public interest.
In relation to the matter of an extension of time for the lodging of an appeal, the Full Bench has held that time limits of the kind in rule 56(2) should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so,[13] with the following matters relevant to the Full Bench’s consideration;
whether there is a satisfactory reason for the delay;
the length of the delay;
the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended; and
any prejudice to the respondent if time were extended.[14]
We have already concluded that the appeal grounds have no merit and that there is no prospect of permission to appeal being found to be in the public interest. As to the other matters above, Mr El Wazni has proffered no explanation as to why the notice of appeal was filed late. The length of the delay is 11 days, which is not insignificant. We do not discern particular prejudice to the employer beyond the need to engage with the matters under appeal if an extension of time was granted (noting that the respondent was not required to file submissions in these proceedings on any matter), and we treat this as a neutral consideration.
No matter weighs in favour of the grant of an extension of time under rule 56(2)(c). The grant of an extension would be pointless because the appeal has no merit. An extension of time is therefore refused.
Conclusion
The appeal was filed beyond the time prescribed by rule 56(2)(a), and an extension of time has been refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Appearances:
[There was no appearance for the appellant.]
K Reidy and A McFadyen for the respondent.
Hearing details:
2022.
Sydney and Melbourne by video link:
4 July.
[1] [2022] FWC 1163
[2] [2011] FWAFB 7498 at [19]
[3] Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]
[4] Ibid at [40]
[5] [2022] FWC 1163 at [13]
[6] Ibid
[7] PR741600
[8] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[9] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[11] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[12] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
[13] Snyder v Helena College Council[2019] FWCFB 815 at [10]
[14] Ibid at [11]
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