Ron Shamir v Commonwealth of Australia (Australian Taxation Office) T/A Australian Taxation Office

[2015] FWC 7666

[2015] FWC 7666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ron Shamir
v
Commonwealth of Australia (Australian Taxation Office) T/A Australian Taxation Office
(U2015/11065)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Ron Shamir alleged that the termination of his employment by the Australian Taxation Office (ATO) was unfair.

[2] On 16 September 2015, directions were issued to Mr Shamir to file material in support of his application. That material was due on 5 October 2015.

[3] On 5 October 2015, Ms Sally Stonier, Mr Shamir’s legal representative, advised that she had returned to her office after two weeks interstate and that she “will attend to this matter by the end of this week.”

[4] In response to that email the ATO’s lawyer, Ms Virginia Masters, wrote to Ms Stonier advising her that due to her unavailability for some of the time the ATO would face difficulties as a result of the late filing of material. Ms Stonier was asked to explain the reasons for Mr Shamir’s non compliance so that Ms Masters could get instructions. Ms Masters also asked about the witnesses that Mr Shamir proposed to call and the documentary evidence he intended relying on. Ms Stonier did not respond to this request.

[5] Ms Stonier’s email was treated as an application for an extension of time though I note Ms Stonier did not in fact make such an application. On 7 October 2015, time was extended for Mr Shamir to file his material by noon on 9 October 2015.

[6] On 8 October 2015, Ms Masters advised that they could accommodate the proposed change but it would be unable to readily accommodate any further delay by Mr Shamir.

[7] Mr Shamir did not comply with the directions and when the Commission staff contacted Ms Stonier she advised that she was aware that Mr Shamir was non compliant.

[8] Ms Masters sent an email to Ms Stonier and asked her to advise when she would file Mr Shamir’s material. Ms Stonier did not reply.

[9] Shortly after, and after the time had passed for Mr Shamir to file his material, Ms Stonier sent an email to the Commission advising that Counsel had advised that the material to be filed was extensive and she sought a extension of time for two weeks.

[10] On 12 October 2015, the ATO applied under s.399A of the Fair Work Act 2009 for Mr Shamir’s application to be dismissed because he had not filed his material in accordance with the directions.

[11] The ATO submitted that the application should be dismissed because Mr Shamir’s explanation for his failure to comply with the directions was not reasonable. It submitted that Ms Stonier’s absence did not reasonably account for his failure to comply. It further submitted that given Mr Shamir was going to be the only witness he should have known the extensive nature of the material he needed to file.

[12] Mr Shamir was sent a copy of the s.399A application and asked to respond to that application.

[13] A hearing of the s.399A application was held on 4 November 2015 and neither Mr Shamir nor Ms Stonier attended the hearing. Mr Glen Pauline of Counsel represented Mr Shamir and Mr Craig Rawson, a legal practitioner represented the ATO.

[14] Mr Rawson submitted that there was no dispute that Mr Shamir had failed to comply with the directions. The only issue was whether that non compliance was unreasonable.

[15] He submitted that there was no evidence filed to support the submissions despite Mr Shamir being directed to file submissions, evidence and other documentary material to support his reasons.

[16] Mr Rawson submitted that nothing put by Mr Shamir provided a reasonable explanation of why he had still not filed his material with the Commission.

[17] Mr Rawson submitted that the ATO would suffer prejudice because of the delay. It submitted that Mr Shamir is seeking reinstatement and rhetorically asked whether the ATO was required to keep a position open for him until he complies with directions.

[18] Further, he submitted that due to the delay, both the solicitor who had carriage of the matter and the relevant ATO officer were now on leave and the ATO had incurred additional costs in engaging other representation.

[19] Ms Stonier filed written submissions in opposition to the application. She set out the history leading to Mr Shamir’s termination and the litigation which flowed from those events.

[20] Ms Stonier submitted that it will be necessary for Mr Shamir to give evidence of the extensive history of events during his employment which includes disputes over the duties he was required to perform and the service upon him of a coercive notice issued to him by the Inspector General of Taxation. It was also submitted that there were relevant medical issues which require explanation.

[21] Ms Stonier advised that she had not advised the ATO that Mr Shamir would be the only witness.

[22] Ms Stonier submitted that the ATO had filed proceedings in the Federal Court seeking costs against Mr Shamir and his previous representatives and as a result she was retained by Mr Shamir. Ms Stonier submitted that this application was a further example of high handed conduct by the ATO which was causing Mr Shamir to incur further legal costs.

[23] She submitted that Mr Shamir was now required to file material to defend the costs application by 6 November 2015.

[24] Ms Stonier submitted that Ms Masters’ unavailability could be accommodated and her unavailability should be considered as providing a reasonable explanation for the need for further time.

[25] Ms Stoner submitted that the directions crossed over school holidays and that there was substantial unavailability of the Applicant and his lawyers in this time. She further submitted that the work had progressed the matter but “it became evident that further time was needed to prepare the whole of the case to be presented.” She was unavailable for most of the week of 5 October due to another matter.

[26] Ms Stonier then submitted that “in due course [she] will also seek an order for the subpoena of witnesses, and require an opportunity to confer with same.” She then said “[she would] then attend to filing and serving all the applicant’s material relied upon when I have finished conferring and am instructed to do so.”

[27] She advised that she was instructed to seek an order for the production of documents by the Respondent.

[28] Ms Stonier sought amended directions requiring the Applicant to file and serve his material by mid December 2015 and the Respondent file and serve its material by mid January 2016 and the matter be listed for hearing in February 2016.

Consideration

[29] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission.¹

[30] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.”²

[31] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited³.

[32] In summary that decision said:

• the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;



• directions play an important role in case management;



• accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;



• the circumstances of each case is central;



• a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant



• continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[33] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Did Mr Shamir fail to comply with directions?

[34] I find that Mr Shamir has failed to comply with the directions of the Commission. So much is not in dispute.

Was that non compliance unreasonable?

[35] I find that Mr Shamir and his legal representative have displayed a cavalier approach to their obligations to this Commission and the ATO. A party, particularly a legally represented party, should, if they consider the directions issued by the Commission provide insufficient time for the party to prepare its case, confer with the other party and prior to the date of compliance, make application to the Commission for an amendment of the directions.

[36] In this case, Mr Shamir and his legal representatives failed to do this on two occasions. I do not consider the explanations provided by Mr Shamir to be reasonable. No explanation was provided as to why Mr Shamir did not seek a variation to the directions prior to the compliance date.

[37] Ms Stonier, after the time for compliance had passed, advised the Commission that the matter would be attended to by 9 October 2015. Mr Shamir was granted an extension in accordance with that advice. That direction was not complied with, and subsequently Ms Stonier, again after the time for compliance had passed, sought a further two weeks. To date no material has been filed.

[38] Mr Shamir’s attitude to his obligation to comply with directions is summarised in paragraphs 21, 22 and 23 of the submissions filed by him in opposition to the s.399A application. Documents will be filed when he instructs his solicitors to do so. Such an approach is unreasonable.

[39] Ms Stonier submitted that this is a factually complex case involving a large number of events and documents including correspondence between 2011 and 2015 between Mr Shamir and persons employed by the ATO or documentary evidence of communications between persons employed by the ATO that relate to Mr Shamir, his employment and the disputes occurred during his employment.

[40] The material discloses that Mr Shamir’s employment was terminated because he failed to undertake assigned duties. The ATO rejected Mr Shamir’s contention that his medical condition prevented him from undertaking his duties. It also did not accept that the notice from the Inspector General of Taxation, or his preparation for his workers compensation review or his matters in the Fair Work Commission were approved ATO duties or provided an acceptable reason or explanation for him failing to undertake his assigned duties.

[41] It is not clear at this stage that this is a factually complex case. The Commission will have to determine whether there was a valid reason for the termination of Mr Shamir’s employment and whether Mr Shamir was afforded procedural fairness. In deciding whether the termination was harsh unjust or unreasonable there may be other factors which the Commission will need to have regard to. In deciding whether there was a valid reason for the termination of Mr Shamir’s employment, the Commission will need to decide:

1. What were the duties Mr Shamir was directed to perform in the period 10 April 2015 to 5 June 2015?

2. Was that direction reasonable?

3. Did Mr Shamir fail to perform those duties?

4. Did Mr Shamir have a lawful justification for not performing those duties?

[42] It is not clear how traversing events going back to 2011 will assist the Commission in deciding these matters.

[43] I accept that Mr Shamir’s current solicitor has only acted for him since early August 2015 but she has, in relation to this proceeding, been the solicitor on the record since its inception. It is clear from the material filed by Mr Shamir in other proceedings that he has prepared extensive material already in relation to his various claims. While I accept there may be a large amount of material to be reviewed, I do not accept that it is reasonable for Mr Shamir not to have filed his material by now.

[44] In this matter, Mr Shamir has instructed his solicitor to brief counsel. Despite that, the directions have not been complied with. Mr Shamir relies on the availability of both his solicitor and his counsel due to school holidays. I do not accept this submission as it is not supported by any evidence. When accepting instructions from a new client or a brief from a solicitor, legal practitioners must have regard to their own availability and the obligation to comply with directions.

[45] The procedures for dealing with unfair dismissal applications are intended to be quick, flexible and informal and address the needs of employers and employees. Those procedures are intended to ensure that a fair go all round is accorded to both employers and employees.

[46] The ATO is entitled to have this matter heard and determined in a short as timeframe as is reasonable and which affords procedural fairness to both parties. The timetable proposed by Mr Shamir would see this matter heard in February 2016, some seven months after the dismissal.

[47] Mr Shamir in this matter is seeking reinstatement. It was put that the ATO was not prejudiced by this delay. I do not accept that submission. The ATO is entitled to expect that these matters will be dealt with expeditiously so that they can arrange their activities accordingly. They cannot be expected to keep a position open. However, I do accept that this is a submission that the ATO can put at the hearing of this matter to oppose reinstatement and if reinstatement is granted to oppose orders for compensation.

[48] Ms Stonier seeks to delay this matter to enable subpoenas to witnesses to be issued and to enable her to confer with those witnesses. Further she says she will seek orders for production of documents. There was no explanation as to why this had not already occurred.

[49] I am satisfied that Mr Shamir’s failure to comply with directions has been unreasonable.

Should the application be dismissed?

[50] It is serious matter to deny an Applicant an opportunity to have his or her case heard. In this matter I am not prepared to dismiss the matter. The ATO is not unaware of Mr Shamir’s case. Mr Shamir provided a detailed response to the show cause letter issued by the ATO on 10 June 2015. It knows that Mr Shamir intends pursuing his claim. The ATO is also aware that Mr Shamir has had other proceedings including costs proceeding issued against him to deal with.

[51] While Mr Shamir has displayed an inability or an unwillingness to have the matter ready for trial within an acceptable period of time, I am not satisfied that this should shut him out at this time from having his case heard and determined.

[52] However I am not prepared to extend the time as sought by Mr Shamir. He has had nearly two months to prepare his case. He has legal representation.

[53] I will direct Mr Shamir to file and serve the material in support of his claim by noon on 23 November 2015.

[54] The ATO can file and serve its material by noon on 23 December 2015.

[55] I do not accept that this gives the ATO less time to prepare. The ATO made the decision to terminate Mr Shamir’s employment. It knows how it wishes to put its case and the evidence it intends relying on to support this case. It is able to prepare that material now. Once it receives Mr Shamir’s material it will be able to respond to any new matters. This will enable the matter to be heard and determined in the week commencing 18 January 2016.

DEPUTY PRESIDENT

Appearances:

G. Pauline for the Applicant.

C. Rawson for the Respondent.

Hearing details:

2015.

Melbourne:

November 4.

<Price code C, PR573721>

1 S.399A of the Fair Work Act 2009

2 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163]

3 PR 956665

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