Rabbi Samuel Tov-Lev v Strathfield and District Hebrew Congregation

[2018] FWC 4233

[2018] FWC 4233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rabbi Samuel Tov-Lev
v
Strathfield & District Hebrew Congregation
(U2018/5329)

COMMISSIONER BISSETT MELBOURNE, 23 JULY 2018

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 22 May 2018 Rabbi Samuel Tov-Lev made an application to the Fair Work Commission (Commission) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Rabbi Tov-Lev’s application was in relation to his dismissal from the Strathfield & District Hebrew Congregation (Respondent) which he says, in his application had effect from 1 July 2011.

[2] This is the third application Rabbi Tov-Lev has made to the Commission (and Fair Work Australia) in relation to this dismissal.

•  On 4 July 2011, Rabbi Tov-Lev lodged an application for relief from unfair dismissal 1 with respect to the termination of his employment with the Respondent. That application was withdrawn prior to conciliation by Rabbi Tov-Lev on 18 July 2011. (The first application.)

•  On 20 November 2013, Rabbi Tov-Lev lodged a second unfair dismissal application against the Respondent. 2 The Respondent declined participation in conciliation and the matter was referred to a jurisdiction hearing before Senior Deputy President Drake to determine the Respondent’s out of time objection. The objection was upheld in a decision issued by Senior Deputy President Drake on 24 March 20143 and the application was dismissed. (The second application.)

•  On 22 May 2018 Rabbi Tov-Lev lodged this current unfair dismissal application 4 against the Respondent. The Respondent has objected to this application on the grounds that the application is significantly out of time and also on the grounds of Senior Deputy President Drake’s previous decision which dismissed matter U2013/16064 and was not appealed by Rabbi Tov-Lev.

[3] It is beyond dispute that each of the applications relate to the same event and that the third application is close to seven years out of time.
[4] On 4 June 2018 I wrote to Rabbi Tov-Lev and asked him why, in these circumstances and, in particular, given the decision 5 of Senior Deputy President Drake that an extension of time for the second application should not be granted and his application be dismissed, I should not dismiss this current application on my own motion because it has no reasonable prospects of success pursuant to s.587 of the FW Act.

[5] In that correspondence I also asked Rabbi Tov-Lev if he was, in fact, seeking that his first application, which he discontinued, be re-opened.

[6] My correspondence sought a response from Rabbi Tov-Lev by 13 June 2018. The Respondent was given until 19 June 2018 to file any submission it wished to make in reply and Rabbi Tov-Lev was given until 26 June 2018 to file final materials.

[7] Rabbi Tov-Lev failed to respond but in response to a follow up letter indicated he was overseas and would return on 4 July 2018. He was subsequently given until 9 July 2018 to respond to the letter of 4 June 2018.

[8] On 10 July 2018 the Commission received a submission and extensive documentation from Rabbi Tov- Lev.

[9] In his submission Rabbi Tov-Lev did not address the question of whether I should dismiss his application on the grounds that it had no reasonable prospects of success. Rather, he submitted that:

•  His first application was on time but he had been “forced by [the Commission] … to discontinue [his] application due to proceedings against the illegal board members of the Congregation in the Supreme Court…”

•  At the extension of time hearing conducted by Senior Deputy President Drake he was informed that staff were wrong in “making” him sign the notice of discontinuance and he was surprised in these circumstances that his extension of time was not granted; and

•  Rabbi Eddy Neumann and “his illegal board” had no legal authority to terminate his employment.

[10] Rabbi Tov-Lev then attached some 21 documents, none of which went to the question I had asked of him. A number of these documents are correspondence written and sent by Rabbi Tov-Lev to others in which he sets out the injustices he considered done to him.

[11] The Respondent said that Rabbi Tov-Lev had not addressed the question asked of him and the Commission should dismiss his application.

[12] On 18 July 2018, I wrote to the parties asking them to advise me by 19 July 2018 if they wished to be heard on the matter or if they were content for me to determine the matter on the basis of the materials filed. The Respondent’s representative advised that he was content for me to deal with the matter on the basis of the materials filed. Rabbi Tov-Lev failed to respond. For that reason, I have decided to determine the matter on the papers without holding a hearing.

Legislative provisions

[13] Section 587 of the FW Act states 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.

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.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Consideration

[14] I am satisfied that I should dismiss the application of Rabbi Tov-Lev on the grounds that it has no reasonable prospect of success.

[15] Rabbi Tov-Lev said that he was surprised that his application for an extension of time before Senior Deputy President Drake was dismissed given that she had indicated he should not have been requested to discontinue his first application. In her decision in which she dismissed the application by Rabbi Tov-Lev for an extension of time, her Honour said:

[1] Rabbi Tov-Lev first lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 4 July 2011. That application was discontinued on 15 July 2011. The notice of termination of employment from the Strathfield and District Hebrew Congregation (the congregation) was dated 29 December 2010. It was received in mid-January 2011. It provided six months’ notice. That application was therefore lodged within time.

[2] Rabbi Tov-Lev discontinued that first application. He submitted that the Notice of Discontinuance was lodged on the advice of Fair Work Australia (FWA) employees. The advice was to the effect that a concurrent Supreme Court action being undertaken by him and the Fair Work Australia application could not be conducted at the same time. If that advice was given, it was wrong. However, Rabbi Tov-Lev stated that he relied upon the advice and for the purposes of this application I intend to accept that that was the case.

[3] Rabbi Tov-Lev lodged a second application in relation to the December 2010 termination of his employment on 20 November 2013. He sought an extension of time for lodgement of that application which I heard in Sydney on 14 February 2014...

[16] ...It follows that, even if every explanation for delay provided by Rabbi Tov-Lev up to September 2013 was considered sufficient to establish an exceptional circumstance, there was still a two-month delay from September 2013 until lodgement...

[22] As previously indicated I have decided to accept the explanation provided by Rabbi Tov-Lev regarding the advice given by FWA staff. If this advice was given it was incorrect. Following that alleged explanation and the discontinuance of the first application Rabbi Tov-Lev and his supporters have unsuccessfully pursued other avenues of remedy.

[23] When their Supreme Court challenges failed Rabbi Tov-Lev took no steps to commence proceedings pursuant to the Act. Instead, he and his supporters were engaged in defending proceedings commenced in the CTTT by the allegedly false congregation to recover possession of the Rabbi’s residence.

[24] Following the conclusion of those proceedings Rabbi Tov-Lev and his supporters pursued an attack upon the CTTT proceedings based upon alleged fraudulent documents and submissions. Their last contact with the CTTT was in September 2013. Following this contact no steps were taken to lodge proceedings in the Fair Work Commission until 20 November 2013.

[25] Even if all the proceedings, complaints, enquiries, evictions, trials and tribulations of Rabbi Tov-Lev provided an explanation which amounted to an exceptional circumstance, which I do not accept, there was still a considerable delay, after all other events were at an end in September 2013, until lodgement in November 2013. There is no explanation for this delay.

[16] If Rabbi Tov-Lev was “surprised” by the decision of the Senior Deputy President to dismiss his application for an extension of time the option open to him at that time was (and remains) to appeal that decision. He has not done so. It cannot be that a further five years later he could make another application as if his second application had not been made or dismissed.

[17] Rabbi Tov-Lev made his second application for relief from unfair dismissal. His application was determined to not have been made within the timeframe required by the FW Act and an extension of time within which to make the application was considered and not granted. His application was therefore dismissed. He now seeks, in effect, to renew or reopen that application, albeit via a fresh application.

[18] The FW Act states that an application for relief from unfair dismissal must be made within 21 days of the date of dismissal or within some other period as the Commission allows. Section 394(3) of the FW Act sets out those matters that must be considered in considering if there are exceptional circumstances such that an extension of time should be granted. These matters were considered by Senior Deputy President Drake. She ultimately dismissed Rabbi Tov-Lev’s application on 24 March 2014. Having done so, the Commission no longer has power to deal with Rabbi Tov-Lev’s second application. The current application is in relation to the same events and relies on the same grounds as the second application. They are indistinguishable.

[19] There is no capacity under the FW Act, having dismissed an application, for it to be re-run at some later time short of the Commission setting aside the original order which dismissed the application. If it was possible that an unsuccessful application for relief from unfair dismissal could be re-run on the whim of a losing party for whatever reason it considered, there would be no stability or finality in the decision-making of the Commission.

[20] In Spotless Services Australia Ltd v Wookey and Topham 6 (Spotless) the deliberation of the Full Bench of the Australian Industrial Relations Commission in the matter included consideration of whether (in the context of an unfair dismissal matter) the Commission had been “functus officio”at the time it proceeded to hear the application before it. Having considered the relevant authorities on the matter, the Full Bench relevantly noted:

[30] From our examination of the authorities we derive the following considerations:

•  the act of re-opening a case is an exceptional step;

•  whether or not a decision of an administrative tribunal means that the power to make a decision is spent will depend on the legislation under which the decision-maker is acting;

•  a tribunal cannot revisit its own decision because it has changed its mind or recognises it has made an error within jurisdiction or because there has been a change of circumstances;

•  the jurisdiction to re-open after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation;

•  finality is a powerful consideration;…

•  circumstances can arise where a rigid approach to the principle of “functus officio” is inconsistent with good administration and fairness;

•  an administrative error is made the tribunal should not be bound by technicalities or legal forms and should act according to substantial justice. 7

[21] A conclusion that the current application and the second application before Senior Deputy President Drake are in relation to the same events and the same circumstances is inescapable. I am satisfied that the observations of the Full Bench in Spotless are appropriate to my consideration of whether I should dismiss the current application. I have had particular regard to the need to maintain “finality in litigation”. I have also had regard to the fact that no appeal to correct any error in the decision of the senior Deputy President Drake was made by Rabbi Tov-Lev.

[22] For these reasons I am satisfied that the current application has no reasonable prospect of success. Rabbi Tov-Lev made a previous application in relation to the same matter and it was dealt with to finality by the Commission on 24 March. In these circumstances it is not possible to see that any further application has any prospects of success.

[23] Rabbi Tov-Lev’s application for relief from unfair dismissal filed with the Commission on 22 May 2018 is therefore dismissed pursuant to s.587 of the FW Act. An order 8 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR609092>

 1   U2011/9460.

 2   U2013/16064.

 3   [2014] FWC 1893.

 4   U018/5329.

 5   Ibid.

 6   PR929400 (Marsh SDP, Blain DP, Deegan C)

 7 Ibid at [30].

 8   PR609181.