Lazrous Samartzis v Cub Pty Ltd

[2021] FWC 6035

[2021] FWC 6035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lazrous Samartzis
v
CUB Pty Ltd
(U2021/5162)

COMMISSIONER BISSETT MELBOURNE, 4 OCTOBER 2021

Application for an unfair dismissal remedy

[1] Mr Samartzis worked for CUB Pty Ltd (Respondent) for close to 20 years. On 27 May 2021 his employment was terminated with notice paid in lieu on the grounds that he could no longer perform the inherent requirements of his job and that it was not possible to make reasonable adjustments in the workplace so that he could perform his job. This decision arose from some injuries (which I do not understand to be work related) to Mr Samartzis’ hands which required surgery. He had been absent from work since 3 September 2019 in relation to this.

[2] On 14 June 2021 Mr Samartzis made an application to the Commission seeking a remedy for unfair dismissal. The application was subject to conciliation where it did not settle. The file was subsequently allocated to me for hearing and determination.

[3] On 30 August 2021 the Respondent made an application pursuant to s.399A(1)(b) and s.587(1)(b) and (c) of the Fair Work Act 2009 (FW Act) that the application be dismissed.

LESGISLATION

[4] Section 399A of the FW Act states:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[5] Section 587(1) of the FW Act provides as follows:

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.

[6] The Respondent submits that Mr Samartzis has unreasonably failed to comply with the directions of the Commission in relation to his application.

[7] Alternatively or in addition it says that Mr Samartzis’ application is frivolous or vexations and/or has no reasonable prospects of success.

[8] Following receipt of the application from the Respondent I issued directions which required the Respondent to file with the Commission and serve on the Applicant its submissions in support of the application. Mr Samartzis was required to file his submissions in reply by Friday 17 September 2021.

[9] The application of the Respondent was listed for hearing by telephone on Wednesday 22 September 2021. Mr Samartzis could not be contacted on his telephone number at that time. Whilst I decided to hear from the Respondent I indicated I would attempt to contact Mr Samartzis and determine why he had failed to attend. Subsequently my chambers sent an email to Mr Samartzis and asked him to provide an explanation by noon Friday 24 September 2021 as to why he had failed to attend the hearing on 22 September 2021 and any submissions as to why I should not, in the circumstances, determine the matter on the papers. Mr Samartzis did not respond by the nominated time. However, later on 24 September 2021 he advised that he had not attended as it was school holidays and he was with his children. He requested that the matter be heard the following week.

[10] I determined to relist the matter on Monday 27 September 2021, noting a request of the Respondent that the matter be determined on the papers. Mr Samartzis attended along with the Respondent and its representative.

BACKGROUND

[11] The following history to the matter is not contentious.

Date

Event

29-07-21

Directions issued for hearing the unfair dismissal application:

•  Mr Samartzis was to file and serve his submissions and evidence by Thursday 19 August 2021

•  Respondent was to file and serve it submissions and evidence by Thursday 9 September 2021

•  The application was listed for a case management conference on Thursday 5 August 2021

•  The unfair dismissal was listed for hearing on Thursday 16 September 2021

05-08-21

A case management conference was held. Directions and filing dates and witness numbers were discussed. Mr Samartzis advised he understood the directions issued and what was required of him. Due to witness number estimates and availability issues the hearing was rescheduled to Friday 17 and Monday 20 September 2021. A Notice of Listing was sent the same day.

Both parties were not prepared to participate in further conciliation.

19-08-21

Mr Samartzis failed to file his materials by 4.00 pm as required by the Directions.

20-08-21

An email was sent to Mr Samartzis advising the Commission had not received submissions as required by the Directions. He was given an extension until Monday 23 August 2021 at 4.00pm to comply. The correspondence warned that the matter would be listed for a non-compliance hearing if he failed to file his material as required.

23-08-21

Mr Samartzis again failed to file his material by 4.00 pm. The matter was listed for non-compliance hearing on Tuesday 24 August 2021 at 3.30 pm.

24-08-21

The non-compliance hearing was held. Mr Samartzis advised he had written submissions and witness statements but was not “tech savvy” and could not scan and email them to the Commission (libraries/Officeworks where he might scan them being closed). The following was agreed:

•  Mr Samartzis to send his submissions and evidence to the Commission via Express Post.

•  Mr Samartzis to provide photo evidence of the Express Post tracking number/receipt to the Commission by 5.00 pm Thursday 26 August 2021 (as evidence his material has been sent).

•  The Commission would scan the submissions and evidence and provide them by email to the Respondent.

•  A new filing date by which the Respondent would be required to submit submissions in reply would be determined once Mr Samartzis’ submissions were received by the Commission (given potential delays in the postal system).

The postal address of the Commission was provided to Mr Samartzis orally and subsequently in an email sent at 3.55 pm. The email reiterated the above plan.

At 8.41 pm Mr Samartzis emailed the Commissioner’s chambers:

“Hello Simon, as per your email below

ill keep you posted..

witness statement, as I have one prepared.. Does the witness have to be present on hearing date.?

And what is the statement to consite of..

Cause the statement I have is in a sealed envelop.!” (sic)

25-08-21

Templates to assist Mr Samartzis in finalising his submissions and witness statements were emailed to him.

26-08-21

A photo of the Express Post tracking number was provided by Mr Samartzis as evidence he had sent his submissions.

30-08-21

Mr Samartzis’ submissions were received by the Commission by Express Post. They consisted of medical certificates and letters from treating practitioners/specialists. The documents were scanned and provided to the Respondent.

Revised compliance dates were advised:

•  The Respondent to file by 4.00pm Monday 20 September 2021.

•  The hearing date relisted to Wednesday 29 September 2021.

At 1.04 pm an email was received from the Respondent requesting a further non-compliance hearing occur as:

•  No witness statements were included in the Express Post documents despite Mr Samartzis’ assurances at the non-compliance hearing and the email of 25 August.

•  Mr Samartzis assured the Commission he understood the requirements necessary to make submissions such as written submissions, witness statements and evidence.

•  The Respondent was unsure how to provide a relevant response to what was provided.

The matter was listed for Mention at 2.00 pm Friday 3 September 2021 and the parties advised by email:

“The Commissioner has received correspondence from the Respondent in which it seeks that the application be listed for non-compliance on the grounds that Mr Samartzis has failed to provide written submissions, including submissions that explain why he considers his dismissal to be unfair.”

02-09-21

Mr Samartzis emailed the Commission and the Respondent:

“Correct if I'm wrong, Legally I don't have to submit all that is required..!! My commitment for a fair trial is all I ask.. Restasured Linda there won't be any surprises on the 29th Sep... My witness is hesitant to be present on the day..!

I won't hesitant at all...” (sic)

Ai Group advised it now acts for the Respondent.

03-09-21

A mention occurred. During the mention the Respondent made an oral application to dismiss application under s.399A and/or s.587 of the Act on the basis that Mr Samartzis had failed to comply with the directions of the Commission and that his application was vexatious and/or has no reasonable prospects of success. Compliance with Fair Work Commission Rules was waived and the application accepted by telephone.

Further directions were issued to parties with respect to the Respondent’s application. These include that the application will be heard by telephone at 4.00 pm Wednesday 22 September 2021.

The amended directions of 30 August were set aside.

[12] On 10 September 2021 the Respondent filed its Outline of Submissions in support of its application to dismiss.

[13] On 15 September 2021 Mr Samartzis emailed the Commission and the Respondent advising that his work locker had contents relevant to his submissions, and that ‘usual practice’ is for the contents of lockers to be couriered to terminated employees. The Respondent replied to Mr Samartzis the following day stating his claim is not company policy but rather former employees may attend the workplace to collect belongings, and that the Applicant has had four months to do so but has not requested access.

[14] Mr Samartzis sent further correspondence in relation to this matter on 17 September 2021 on this matter. He did not request anything of the Commission.

[15] In accordance with the directions issued the Commission received 10 emails from Mr Samartzis on 17 September 2021, 9 of which contained his submissions and a number of character references variously dated from 16 July 2021 to 13 September 2021. An email refuting the Respondent’s contentions regarding locker contents was also filed which said that “the contents of my work place lockers did have most material required to support and increase a far better submission”. Mr Samartzis did not elaborate on what this documentation is or how it might assist the Commission.

[16] On 18 September 2021 the Commission received a further email from the Applicant containing a further brief plea that he be reinstated to his position and receive compensation. Several phots from the workplace were included.

SUBMISSIONS

[17] In its submissions filed in accordance with the directions the Respondent said as follows:

•  Mr Samartzis has been given sufficient opportunity to produce submissions and evidence in relation to his claim for unfair dismissal. Despite this he has unreasonably failed to comply with various directions that he do so by 19 August 2021, 23 August 2021 and 26 August 2021

•  The Commission has taken steps on each occasion to ensure Mr Samartzis has understood the nature of the material he is required to file. Mr Samartzis has not been required to do anything beyond what would normally be expected of an applicant

•  Since the termination of his employment Mr Samartzis has had over 3 months within which to prepare his case. He has repeatedly said that he is in the process of doing so and would comply with the directions. He has not, at any stage, sought an extension of time within which to comply

•  Mr Samartzis has indicated a deliberate refusal to comply. In his email of 2 September 2021 Mr Samartzis said ‘legally I don’t have to submit all that is required…’

•  The failure of Mr Samartzis to submit his material has left the Respondent at a significant disadvantage as it is unable to prepare material in reply

[18] For these reasons the Respondent submits the application should be dismissed pursuant to s.399A(1)(b) of the FW Act.

[19] Further and alternatively the Respondent submits that the ongoing failure of Mr Samartzis to provide any evidence of his claim for unfair dismissal means that his claim cannot be successfully pursued such that a hearing would be futile.

[20] For this reason it submits the application is frivolous and vexatious, untenable and/or incapable of being treated as bona fide and the application should be dismissed.

[21] Further and in the alternative the Respondent submits that Mr Samartzis has failed to prosecute his case given his failure to provide submissions or witness evidence. For this reason it says the application has no reasonable prospect of success and should be dismissed.

[22] Mr Samartzis, in his written and oral submissions in relation to this application, provided brief statements as to why his dismissal was unfair and why he should be given his job back. In essence Mr Samartzis said that he worked for the Respondent for 20 years and was an active OH&S representative who worked with employees on the shop floor and management to improve the occupational health and safety standards for the Respondent. This, he said, resulted in improvements including in productivity.

[23] Mr Samartzis said that the previous 18 months have been difficult due in part to COVID-19 and a break down in his marriage which has caused him some stress.

[24] Mr Samartzis agreed that, prior to the termination of his employment, he would ‘make a promise and wouldn’t deliver or show up to meetings while he was on extended sick leave’ but that this was due to his priorities being the needs of his children. He submits that his failures in this respect were ‘out of character.’

[25] Mr Samartzis advised that in September 2019 he had a successful operation on one of his hands. He was due for a second operation when COVID-19 hit and his marriage broke down. There was then, he submits, conflicting advice between his doctor and the Respondent’s doctor. Despite this he maintains that the grounds for his dismissal were ‘small.’

[26] Mr Samartzis submitted that his job prospects are not good due to his age and as he is not a skilled worker .

[27] Mr Samartzis has not otherwise addressed the Commission as to why I should not grant the application to dismiss his application for unfair dismissal.

CONSIDERATION

[28] From the time Mr Samartzis’ application was allocated to chambers all reasonable assistance has been provided to enable him to provide submissions and evidence in support of his application. In conferences and mentions before the Commission Mr Samartzis has indicated that he is aware of the what the Commission requires in the form of submissions and evidence to enable his application to be heard.

[29] The Commission has shown flexibility and patience with Mr Samartzis and his failure to comply with the directions issued. My chambers provided templates to assist Mr Samartzis but this has not resulted in him filing any coherent material that address the matters necessary for his application to be determined.

[30] Mr Samartzis’ inability to come to terms with what was required of the Commission is reflected in the material he has filed in response to the Respondent’s application to dismiss and in his oral submissions. Despite explaining to the applicant at the time the Respondent made the current application, providing the relevant extracts from the FW Act under which the Respondent made its application and confirming during the hearing of the Respondent’s application what the Commission was required to consider, Mr Samartzis has consistently failed to address the critical questions before the Commission:

•  Whether he had unreasonably failed to comply with directions

•  Whether his application was frivolous and vexatious

•  Whether his application had no reasonable prospects of success.

[31] As can be seen from the chronology above over the period 29 July 2021 to 3 September 2021 Mr Samartzis has failed to comply with the directions of the Commission. Mr Samartzis has not sought any extension of time to file his materials with extensions being granted on my own motion to allow him every opportunity to file material relevant to his claim that he was unfairly dismissed.

[32] The Commission is required to exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities. 1 Unnecessary or unexplained delays in a party complying with directions issued by the Commission mitigates against this entreaty. It is accepted that, in doing so, the Commission should not deny a party procedural fairness and should provide reasonable latitude and assistance to enable a party to be heard. This, however should not be understood to allow ongoing delays caused by a failure to comply with directions and file material relevant to the matter to be determined without explanation or the filing of material which does not address the essence of a claim.

[33] In considering an application under s.399A(1)(b) of the FW Act it is not enough to show that an applicant failed to comply with directions of the Commission. it is also necessary to show that such a failure was unreasonable.

[34] In this case I am satisfied that Mr Samartzis has failed to comply with the directions of the Commission. Directions were issued by the Commission on 29 July 2021. These required Mr Samartzis to file his submissions and evidence by 19 August 2021. He failed to do so and did not seek an extension of time within which to do so. However, on its own motion the Commission extended the date for filing to 23 August 2021. Mr Samartzis again failed to file his submissions and evidence and provided no advice that he would be unable to do so.

[35] At the non-compliance hearing Mr Samartzis explained some technology problems so a further process was instigated to enable him to send his material to the Commission by post. Mr Samartzis was also provided with the Commission templates to assist him in finalising his documents. Mr Samartzis complied with the requirement set for posting his documents. However, the material he ultimately filed with the Commission was not in any sense ‘submissions’ or ‘evidence’ and of little to no use in determining a claim of unfair dismissal. What Mr Samartzis did file with the Commission was 38 pages of documents consisting of medical referrals (5 such documents), an invoice for medical treatment (1), confirmation of a medical appointment (1), medical certificates (7) medical reports of varying amounts of detail (8), test results (2) and a 2017 review of forklifts at the Respondent logistics warehouse.

[36] The material filed was in no obvious order and much of it was of little if any relevance to the unfair dismissal application (e.g. the medical certificates, invoices, referrals and the 2017 report). Further, to the extent it may have been relevant (even in a non-technical sense), no submission as to what the purpose of providing the documents was included and Mr Samartzis provided no witness statement telling his ‘story’ or why his dismissal was unfair despite his advice at the non-compliance hearing that he had a witness statement to send to the Commission.

[37] There can be no doubt that Mr Samartzis has filed to comply with directions of the Commission both in timing and content of the material ultimately filed. The critical issue is if this failure was unreasonable.

[38] I am satisfied that Mr Samartzis has been given multiple opportunities to file his submissions and witness statement/s. Despite consistently advising the Commission that he understood what was required of him Mr Samartzis has not provided submissions or a witness statement. While I appreciate and have taken into account that Mr Samartzis is self-represented, 2 this is not an excuse for a complete failure to comply with directions. It also does not explain the failure of Mr Samartzis to proactively advise the Commission that he would be unable to comply, or that he was unsure of what was required of him. It is this failure to be open with the Commission and to advise that he could not meet compliance dates and seek a relevant extension that makes the actions of Mr Samartzis’ actions in not complying unreasonable.

[39] I am therefore satisfied that Mr Samartzis has unreasonably failed to comply with the directions of the Commission. I therefore grant the application of the Respondent to dismiss the unfair dismissal application pursuant to s.399A(1)(b) of the FW Act.

[40] For completeness, I am not satisfied that the application made by Mr Samartzis was frivolous or vexatious. Mr Samartzis had a legitimate purpose in making his application. He genuinely believes his dismissal was not justified and unfair and wants his job back. The application cannot be categorised as vexatious or frivolous in such circumstances.

[41] I am satisfied however that Mr Samartzis’ application for unfair dismissal, as it currently stands, has no reasonable prospect of success. This assessment is made on the basis of the material that Mr Samartzis did file (38 pages) in response to the directions issued by the Commission. In his material Mr Samartzis did not explain why his dismissal was unfair. His material was of such paucity that I could not grant his application even if I decided it on the basis of the material he filed and nothing else. Such an assessment leaves no room for any conclusion but that the application has no reasonable prospect of success.

[42] For this reason alone I am satisfied that Mr Samartzis’ application has no reasonable prospect of success and should be dismissed pursuant to s.587(1)(c) of the FW Act.

[43] For these reasons Mr Samartzis’ application seeking remedy for unfair dismissal is dismissed pursuant to s.399A(1)(b) and s.587(1)(c) of the FW Act. An order 3 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

A. Targett for the Respondent.

L. Samartzis for the Applicant.

Hearing details:

27 September 2021. Melbourne, by telephone.

Printed by authority of the Commonwealth Government Printer

<PR734477>

 1   Fair Work Act 2009 (Cth) s.577.

 2   Mr Samartzis was represented in conciliation of his application but his representative ceased to act thereafter

 3   PR734478.