Rabbi Samuel Tov-Lev v Strathfield & District Hebrew Congregation

[2014] FWC 1893

[2014] FWC 1893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Rabbi Samuel Tov-Lev
v
Strathfield & District Hebrew Congregation
(U2013/16064)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 24 MARCH 2014

Jurisdictional objection - extension of time.

[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.

[4] At the hearing Rabbi Tov-Lev appeared on his own behalf with two support persons. The congregation was represented by Mr Goot of Senior Counsel instructed by Mr Neumann, a solicitor from Eddy Neumann Lawyers. After considering the requirements for permission to appear set out in the Act at s.596(2)(a) I granted permission to appear to Mr Goot and Mr Neumann. There was no opposition from Rabbi Tov-Lev.

[5] I have not attempted to set out the entire history of events between Rabbi Tov-Lev and the congregation. I have set out some of the relevant history below.

[6] On 4 November 2011 the Supreme Court of New South Wales proceedings instituted by Rabbi Tov-Lev on 30 June 2011 were dismissed by Justice Hallen. Appeal proceedings in relation to the judgement of Justice Hallen were dismissed with costs on 1 February 2012 by Justice Nicholas.

[7] On 15 November 2012 another Summons and Notice of Motion instituted by Rabbi Tov-Lev in the Supreme Court of New South Wales, were dismissed with costs by Justice Black.

[8] The judgements of the Supreme Court include findings regarding the standing of the board of the congregation represented by Mr Goot and Mr Neumann as well as Rabbi Tov-Lev’s allegations of fraud and corruption.

[9] There was a 12 month delay from the conclusion of the proceedings before Justice Black and the lodgement of the application before me. I asked Rabbi Tov-Lev about that delay. He advised me that he had been appearing before the Consumer, Trader & Tenancy Tribunal (CTTT) now known as the New South Wales Civil and Administrative Tribunal (NCAT) to defend proceedings initiated by the congregation to evict him from the residence attached to the synagogue in Strathfield. Those proceedings concluded at the end of 2012 and he was evicted from the residence in January 2013.

[10] Following these events Rabbi Tov-Lev submitted that he was occupied making submissions and writing letters to various people regarding corruption issues arising from the Supreme Court proceedings.

[11] I persuaded Rabbi Tov-Lev to take a 15 minute adjournment to allow his support persons and he to consider, and attempt to concentrate on, the application for an extension of time which was listed before me. I did this because Rabbi Tov-Lev’s focus before me to that point had tended to concentrate on the merits of his substantive application.

[12] Following this adjournment Mr de Vardi, the president of the previous congregation which Rabbi Tov-Lev supported and which supported him, addressed me. Mr de Vardi submitted that Rabbi Tov-Lev and his supporters had been occupied with writing letters and providing documents to various institutions including the police and the Director of Public Prosecutions.

“MR TOV-LEV: Now, I checked. I've been evicted from the house in November 2012. So after that, we went in process. I've written to the police, for investigation regarding the bribe, and with the police attached long time. I came to the office, and I told them, "We're still with the CTTT. We've been writing, giving documents for all the false document they presented, false AGMs." All the time, I've been busy with all these cases. This is why, they told me here, to try to finish with all these things. But as they see, I have to do something about it because the - also, ASIC, they told us that the new board should be reinstated because, for me, I've been (indistinct) I mentioned 24 April 2011, as the rabbi.

Here, the respondent mentioned there is no congregation. Of course, because when you have a board does nothing, and they didn't follow my advice. I was happy that a new board came, and immediately we had 142 new members. It's unlimited, we could regularly (indistinct) the congregation. But only three (indistinct) to send that place to get the money. We would not care about Holocaust, about the victims of the Holocaust, about the holy place. As a rabbi, I didn't do this for my pleasure. It's my second duty, an obligation. When I see people making something like this, my duty is to protest and to prevent it. Otherwise, the sin will go up in me. This is the Jewish law, according to God, or they said in our Torah, and my duty to rebuke them every time.

We have shown you all the letters I've written to this first president, how I'm giving this sermon, what wrong is - been doing all the time. Your Honour, we understand very clearly. Now, regarding back to the Supreme Court, as I mentioned before. Because here, the respondent mentioned the matter strike out strata (indistinct) because they tampered with our maintenance debit or claim, which disappeared from the court's file. Therefore, their solicitor, Mr Austin, he admitted in the court to two different judges that he tampered with our maintenance debit or claim. You can ask Mr Neumenn to verify it, to ask him why he presented all these false AGM to CTTT, to Ms Slaven, that he is the real president.” 1

[13] Throughout all of these proceedings Rabbi Tov-Lev has alleged serious misconduct by the congregation and attacked the standing of the body represented by Mr Neumann.

[14] Mr de Vardi submitted to the CTTT that it had been provided with forged documents, being fabricated records of the Annual General Meetings of the congregation. 2

[15] I asked Mr de Vardi why Rabbi Tov-Lev did not lodge an application in the Fair Work Commission (FWC) when the Supreme Court proceedings had been lost. 3 I asked this because it was his submission that in February 2013 he was told to come to the FWC by the CTTT. Why didn't he lodge?4 His explanation is set out below:

“MR DE VARDI: Because I went there, I was complaining as well, and I showed them the agreement that the new board get him in April 2011. It was September 2013 when we went there.” 5

[16] According to Mr de Vardi’s submission on behalf of Rabbi Tov-Lev, the last time these issues were raised with the CTTT was September 2013. 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.

[17] The relevant legislative framework for the exercise of the Fair Work Commission (the FWC) in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[18] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 6Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”7

[19] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 8 In Maan v Minister for Immigration and Citizenship9 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 10

(my emphasis)

[20] I have adopted this approach.

[21] I have considered the criteria set out in section 394 (3) to the circumstances of Rabbi Tov-Lev’s application.

[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.

[26] Rabbi Tov-Lev was aware of the termination of his employment and lodged the first application on time.

[27] He always disputed the termination of his employment.

[28] Mr Goot outlined in his submission what the congregation believed would be the prejudice to it if the application for an extension of time was allowed.

“MR GOOT: No, it's not. But even if one - if that's what he was told - and he's had a host of lawyers acting for him at various times before he has dismissed them - and Black J deals with that as well, as did Hallen J and others. Even if that were to be the case, which it is not, there is no explanation at all for the 12 plus months' delay since Black J's decision. That's on one side of the ledger. On the other side of the ledger of course - and your Honour has to have regard to this under 394(3) - is the prejudice to my client resulting from the delay. We, in our objection, have flagged that a meeting will shortly be called to wind up the respondent.

As his letter of termination made clear, what has happened to the Strathfield and District Hebrew Congregation is that it is the victim of a significant demographic change. There are no, or insufficient congregants, in that area of Sydney. What was once a thriving congregation 20 or 30 years and further ago is now moribund. Indeed, I'm instructed that the synagogue closed on 5 March 2012 and has not reopened for services or any other purpose since but for the celebration of one bar-mitzvah on 31 August 2013, officiated over by someone other than the applicant, held there for family sentimental reasons. So that's the real prejudice.” 11

[29] I accept Mr Goot’s submissions. I am satisfied and find that there would be considerable prejudice to the congregation should this application for an extension of time be allowed.

[30] I have considered the merits of the substantive application. Having considered the findings of the Supreme Court I am persuaded that the chances of success of the substantive application would be very low. However, I did not allow Rabbi Tov-Lev to press the merits of his application as fully as he would have wished and I do not rely on that aspect of the criteria in section 394 (3) in my consideration.

[31] I am satisfied that there is no issue of relevant unfairness as between Rabbi Tov-Lev and other persons in a similar position.

[32] I have considered all of the criteria in section 394(3). I am not persuaded that there are any exceptional circumstances justifying an extension of time in relation to Rabbi Tov-Lev's application.

[33] Rabbi Tov-Lev’s application for an extension of time for lodgement of this application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Transcript PN124 - PN126

 2   Transcript PN141

 3   Transcript PN144

 4   Transcript PN146-PN147

 5   Transcript PN153

 6 [2003] FCAFC 256.

 7   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 8   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 9 [2009] FCAFC 150

 10   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 11   Transcript PN61 - PN62

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