Rabbi Samuel Tov-Lev v Strathfield & District Hebrew Congregation
[2018] FWCFB 5613
•6 SEPTEMBER 2018
| [2018] FWCFB 5613 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rabbi Samuel Tov-Lev
v
Strathfield & District Hebrew Congregation
(C2018/4363)
| JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER SAUNDERS | MELBOURNE, 6 SEPTEMBER 2018 |
Appeal against decision [2018] FWC 4233 of Commissioner Bissett at Melbourne on 23 July 2018 in matter number U2018/5329 – permission to appeal refused
Introduction
Rabbi Samuel Tov-Lev (Appellant) has appealed against Commissioner Bissett’s decision (Decision)[1] to dismiss his unfair dismissal application (Application) against the Strathfield & District Hebrew Congregation (Respondent). The Commissioner dismissed the Application under s.587 of the Fair Work Act 2009 (Cth) (Act), on the basis that it did not have reasonable prospects of success.
An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.
The appeal was heard on 4 September 2018, at which the Appellant appeared on his own behalf. The Respondent sought permission to be represented by Mr Vernier of counsel, but at the conclusion of the Appellant’s oral submissions we decided that we did not need to hear from the Respondent. Consequently, we did not need to decide whether to grant permission for the Respondent to be represented by a lawyer in accordance with s.596 of the Act.
We have determined this appeal on the basis of the written and oral submissions made by the Appellant, together with the documentary material provided by the Appellant.
The relevant background is set out in the Decision as follows:
‘[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 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. 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 2014 and the application was dismissed. (The second application.)
· On 22 May 2018 Rabbi Tov-Lev lodged this current unfair dismissal application 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 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.
…
[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.’
The Appellant does not challenge any of the background matters set out in paragraphs [4] to [12] and [15] of the Decision.[3]
On the basis of the factual background the Commissioner dismissed the application:
‘[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 to this effect will be issued with this decision.’[4]
Should permission to appeal be granted?
The Appellant contends that he was overseas and had computer related problems which prevented him from responding to correspondence sent to him from the Commission in June 2018. The correspondence from the Commission to which the Appellant refers is dated
4 June 2018 and states, among other things:
‘I refer to your application made to the Fair Work Commission on 22 May 2018 seeking a remedy for unfair dismissal. In your application you say that you were dismissed from Strathfield & District Hebrew Congregation on 1 July 2011.
A review of the files of the Commission indicates that you have made two previous applications for relief from unfair dismissal, both against Strathfield & District Hebrew Congregation and both with respect to the termination of your employment on 1 July 2011. The first was made on 4 July 2011[5] and was discontinued by you on 18 July 2011. The second application was made on 20 November 2013[6].
The second application was made outside the 21 day statutory time period allowed for in the Fair Work Act 2009 (FW Act). An application to extend the time within which that application could be made was considered by Senior Deputy President Drake. On 24 March 2014 the Senior Deputy President issued her decision[7] in which she said that she was “not persuaded that there are any exceptional circumstances justifying an extension of time in relation to Rabbi Tov-Lev’s application.”[8]
You have now made a third application[9] on 22 May 2018 in relation to your dismissal on 1 July 2011. This application is some seven (7) years outside the statutory time period for making such an application.
Your application has been allocated to me to consider how to proceed with it. Whilst I note the application was allocated for conciliation, that referral has been cancelled pending my consideration of the file.
Given that your application is many years out of time and a previous extension of time within which to make the application was rejected by the Commission, I am not convinced the Commission should further consider your application.
The Commission has the power to dismiss an application under s.587 of the FW Act on a number of specified grounds or on other unspecified grounds…
I now invite submissions from you as to why, in the circumstances, I should not dismiss your application in accordance with s.587 of the FW Act.’
As is apparent from paragraphs [7] and [8] of the Decision, the Appellant was given an extension of time to respond to this correspondence and did in fact file a ‘submission and extensive documentation’.[10] Accordingly, we are not persuaded that there is an arguable case of error in relation to the opportunity afforded to the Appellant to file material in respect of the question of whether the Application should have been dismissed under s.587 of the Act.
The Appellant also contends that he was denied the chance to have a hearing. In an email sent to the parties at about 9am on 18 July 2018 they were asked to indicate ‘by 4.00pm Thursday 19 July 2018 if they wish to be heard on the matter or if they are content for the Commissioner to determine the matter on the basis of the material filed’.[11]
The Appellant did not respond to that email. As a result, and in light of the Respondent’s request that the matter be determined on the basis of the materials filed, the Commissioner ‘decided to determine the matter on the papers without holding a hearing’.[12] In our view, there is no arguable case of error in relation to the decision by the Commissioner not to hold a hearing. The Appellant was given an opportunity to request a hearing, but did not take up that opportunity. It is relevant to note in this context that the correspondence sent to the Appellant on 18 July 2018 was sent to the same email address as the Appellant had used in his earlier correspondence with the Commission and which had been nominated by the Appellant in his Application.
During the hearing of the appeal the Appellant was invited to inform the Full Bench of what he would have said in an oral hearing before the Commissioner had such a hearing taken place. The Appellant submitted that in an oral hearing he would have taken the Commissioner to the substantive merits of his unfair dismissal case.[13] In particular, the Appellant says he would have addressed the following points:[14]
the board of the Respondent had no legal authority to terminate his employment because the board was illegally constituted;
under Jewish law, the Respondent had no right to unilaterally dismiss him. The Appellant’s agreement was required before he could be dismissed, and he did not agree to such a course; and
a new duly-elected board of the Respondent appointed the Appellant back to his position with the Respondent, but an illegal board of the Respondent used illegal activities and false documents to remove the new board and prevent the reappointment from taking place.
We note that in his written submission to the Commissioner the Appellant addressed the legality of his dismissal by Rabbi Neumann and his ‘illegal board’; this matter was taken into account by the Commissioner (see [9] of the Decision).
For completeness we also note that the Appellant filed separate proceedings against the Respondent in the Supreme Court of New South Wales in relation to a range of issues, including the legality of the actions of the board of the Respondent.
Even if the Commissioner had conducted a hearing and the Appellant had addressed the substantive merits of his case in greater detail, we are satisfied that the Application would have been dismissed under s.587 of the Act on the basis that it did not have reasonable prospects of success. So much is clear from the fact that the Appellant had lodged in the Commission two prior unfair dismissal applications against the Respondent, the first of which was discontinued and the second of which was dismissed for being out of time; no appeal was lodged against the decision to dismiss the second application. The Application filed by the Appellant on 22 May 2018 was almost seven years out of time and was based on the same facts as the previous two unfair dismissal applications. Having regard to those matters, the Appellant’s arguments concerning the substantive merits of his unfair dismissal case would not have established any reasonable prospects of success.
As mentioned earlier, there is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so.’
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[15] In GlaxoSmithKline Australia Pty Ltd v Makin 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.’[16]
Other than a special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused.[17]
In our view, there is no arguable appealable error in the Commissioner’s Decision to dismiss the Application under s.587 of the Act on the basis that it did not have reasonable prospects of success.
This is not a case where there is a diversity of decisions at first instance so that guidance from a Full Bench is required; the Decision at first instance does not manifest an injustice; the result is not counter intuitive; and the legal principles applied do not appear disharmonious when compared with other recent decisions dealing with similar matters.
The Appellant contends that the public interest is enlivened because there is interest both within Australia and in various countries around the world in relation to the actions of the Respondent in dismissing him in the way that it did. Notwithstanding those matters, having regard to the background set out above and all the circumstances of the case, we are not satisfied that it would be in the public interest to grant permission to appeal. Nor are we satisfied that there is any other proper basis to grant permission to appeal.
Conclusion
For the reasons given we are not satisfied that it is in the public interest to grant permission to appeal. Further, having regard to the grounds of appeal and Rabbi Tov-Lev’s submissions we do not identify any arguable case of appealable error on the part of the Commissioner. We are not satisfied that the decision subject to appeal is attended with sufficient doubt such as to warrant its reconsideration on appeal; nor are we persuaded that substantial injustice may result if permission to appeal is refused.
Permission to appeal is refused.
PRESIDENT
Appearances:
Rabbi Samuel Tov-Lev appeared for himself
Hearing details:
Melbourne.
2018.
4 September
<PR700144>
[1] [2018] FWC 4233
[2] This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[3] Transcript, 4 September 2018, PN46 – PN55
[4] [2018] FC 4233 at [21] – [23]
[5] U2011/9460.
[6] U2013/16064.
[7] [2014] FWC 1893.
[8] Ibid, [32].
[9] U2018/5329.
[10] Decision at [8]
[11] Decision at [12]
[12] Ibid
[13] Transcript, 4 September 2018, PN33 – PN37
[14] Transcript, 4 September 2018, PN44 – PN45
[15] 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] .
[16] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[17] Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
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