Saleh Saqqaf v Special Broadcasting Service

Case •

[2023] FWC 2280

•

6 SEPTEMBER 2023
[2023] FWC 2280

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Saleh Saqqaf
v

Special Broadcasting Service

(U2023/3102)

DEPUTY PRESIDENT CROSS

SYDNEY, 6 SEPTEMBER 2023

Application for an unfair dismissal remedy

  1. On 11 April 2023, Mr Saleh Saqqaf (the Applicant) lodged an application in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application). The Applicant had been dismissed by the Special Broadcasting Service Corporation (the Respondent) on 22 March 2023.

  1. On 5 June 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions), and listing the matter for Hearing on 22, 23 and 24 August 2023. The Directions provided:

1.           Mr Saleh Saqqaf (the Applicant) is directed to file with the Fair Work Commission and serve on Special Broadcasting Service (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 13 June 2023.

2.           The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 27 June 2023.

3.           The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 4 July 2023.

  1. The Directions also included a notation in the following terms:

c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.

  1. On 16 June 2023, the Applicant requested an extension of time to file and serve his material until 4 July 2023. That application was granted. 

  1. On 4 July 2023, the Applicant requested an extension of time to file and serve his material until 7 July 2023. That application was granted. 

  1. The Applicant did not file and serve any materials by 7 July 2023. The first materials served was a statement of a Mr Rizk, served on 11 July 2023.

  1. Also on 11 July 2023, the Applicant requested a further extension of time to file and serve the remainder of his evidence by 14 July 2023. The Respondent opposed that request on the basis that the Applicant had consistently failed to comply with the Commission’s directions. That application was granted.  The statement of the Applicant was filed on 12 July 2023.

  1. On 13 July 2023, the Commission issued an amendment to the Directions (the Amended Directions) as follows:

The Amended Directions are now as follows:

1.            Mr Saleh Saqqaf (the Applicant) is directed to file with the Fair Work Commission and serve on Special Broadcasting Service (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 14 July 2023.

2.            The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 4 August 2023.

3.            The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 11 August 2023.

Please ensure the Amended Directions are complied with in a timely manner.

  1. The Applicant subsequently served a statement of a Ms Saliba on 14 July 2023, and a statement of a Ms Abdel Sater on 17 July 2023. The Applicant did not file his outline of submissions until 19 July 2023.

  1. It was necessary to further vary the Amended Directions (the Further Amended Directions) to programme amended dates for the filing of the Respondent’s materials, and the Applicant’s reply materials. On 31 July 2023, the Applicant advised the Commission as follows:

By the consent of the Applicant and the Respondent, the parties seek the following directions to regularise the remaining timetable for the preparation of the hearing of the application:

1.            The Applicant is permitted to rely on the material filed and served to date on the hearing of the application in this matter notwithstanding any failure to comply with direction 1 of the Amended Directions made on 13 July 2023.  

2.   The time given in direction 2 of the Amended Directions made on 13 July 2023 for the Respondent to file with the Fair Work Commission, and serve on the Applicant, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter is extended to 4pm on 7 August 2023.

3.   The time given in direction 2 of the Amended Directions made on 13 July 2023 for the Respondent to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions in this matter is extended to 4pm on 9 August 2023.

4.   The time given in direction 3 of the Amended Directions made on 13 July 2023 for Applicant to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents, is extended to 4pm on 14 August 2023.

We note that the directions set out above would restore the parties to the timeframes provided by the Amended Directions made on 13 July 2023 (and the earlier timetables) while still providing time after the completion of the timetable for further preparation prior to the hearing listed to commence on 22 August 2023.

  1. The Respondent filed its materials in accordance with the Further Amended Directions between 5 and 9 August 2023, with the last filed document, being the Respondent’s Submission, being filed at 3.59pm on 9 August 2023.

  1. The Applicant did not comply with the Further Amended Directions and on 15 August 2023, the matter was listed for a further Directions Hearing on 16 August 2023.

  1. Earlier on 15 August 2023, the Applicant filed a request for the issue of five Form F51 Application for an Orders Requiring a Person to Attend Before the Commission (the Forms F51), directed to Nissrine Kahdra Daher, Jamileh Fakhri, Hamssa Danil, Dalal Naddaf, and Samir Kasim.

  1. At the Directions Hearing on 16 August 2023;

(a)       Upon the undertaking by the Applicant to pay the Respondent’s costs thrown away as a result of the adjournment of the hearing dates, the Hearing was adjourned and re-listed on 13, 14 and 15 September 2023;

(b)      The Further Amended Directions were again amended to require the Applicant to file his materials in reply by 4.00pm on 21 August 2023, on the basis that no further evidence filed after that time would be admitted without further order of the Commission; and

(c)       The parties were directed to confer regarding the five Form 51 requests.

  1. On 21 August 2023, by email to the Commission, the Respondent expressed the proposed form of orders arising from the Directions Hearing on 16 August 2023, as follows:

1.  The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents, by 4pm on 21 August 2023, on the basis that no evidence filed after that time will be admitted without further order of the Commission; and

2.  The hearing listed for 22, 23 and 24 August 2023 is adjourned upon the undertaking given by the Applicant as to the costs thrown away as a result.

  1. On 21 August 2023, Counsel for the Applicant, sent an email to the Commission stating:

I have been forwarded the [above] email and, on behalf of my instructing solicitor, I advise that the Applicant agrees that the orders proposed by the Respondent reflect the orders made orally by DP Cross on 16 August 2023. 

I also must most regrettably advise that the Applicant will not be in a position to comply with the direction to file its reply material by 4pm this afternoon and accepts that the consequences of that non-compliance will be as specified in the orders made by DP Cross.  For the assistance of the Commission and the Respondent, I can indicate that work on the reply statements will continue until they are signed, filed and served as soon as that can be arranged with a view to then immediately preparing an application for an order that the Applicant be permitted to rely on those reply statements. 

The Applicant will file the reply statements and the application as soon possible and keep the Commission and the Respondent informed of developments. 

  1. At 5.11pm on 24 August 2023, a signed statement of Ali Rizk dated 23 August 2023, was filed.

  1. At 4.54pm on 29 August 2023, the Respondent sent an email to the Applicant requesting an update regarding the filing and serving the remainder of the Applicant’s evidence in reply.  No response to that email was received and no application seeking to file further evidence or submissions has been made.

The Forms 51

  1. On 31 August 2023, the Commission was advised that the parties had not been able to agree as to the disposition of the Forms 51. The following directions were issued to allow determination of the question of issuance of the Forms 51.

  1. The Respondent is to file any further submission in relation to their objection to the Applicants Form F51 by no later than 4:00PM this afternoon.
  2. The Applicant is directed to file submissions in support of their application for an order to attend by no later than 4:00PM on 1 September 2023.
  3. The Respondent is directed to file any submissions in reply by no later than 12:00PM on 4 September 2023.

(a)       The Respondent’s Submission

  1. The Respondent opposed the issuance of the Forms 51, on the following grounds:

1.           The Applicant has not provided any evidence as to why these additional witnesses, who have not provided statements, are allegedly material to the Applicant’s case;

2.           The steps taken by the Applicant to try and elicit a statement from the witnesses, including times and methods of contact with the witnesses, and any replies from those witnesses, have not been provided;

3.           The Applicant has been on notice since 5 June 2023 that he was required to provide evidence in support of his case. It was not until 9.31pm on 15 August 2023, with imminent hearing dates of 22-24 August 2023, that the Applicant informed Chambers and the Respondent that he seeks to call additional witnesses;

4.           As the witnesses have not provided statements, the evidence they will be giving is unknown and the Respondent is prejudiced as it cannot prepare its case without knowing the Applicant’s case in full; and

5.           The prejudice to the Respondent in having the additional witnesses attend to give evidence would have a detrimental impact on the Respondent.  A number of the witnesses, in addition to the witnesses the Respondent has filed and served evidence from, are part of the Arabic News team and all have a role to play in producing and airing the daily live news bulletin.  Requiring the additional witnesses to attend to give evidence would place the production of the daily news bulletin in jeopardy. In addition, the inclusion of five additional witnesses in a case where there are already eight witnesses will mean that extra time is required, in particular, in circumstances where the evidence in chief will also need to be given during the hearing. This incurs additional costs and time of all parties and the Commission.

The Applicant’s Submission

  1. The Applicant pressed for the issuance of the Forms F51, and submitted:

    1.            By the Form F51 dated 15 August 2023, the applicant sought orders requiring Ms Nissrine Daher, Ms Jamileh Fakhri, Ms Hamssa Danil, Ms Dalal Naddaf and Mr Samir Kasim to attend before the Fair Work Commission at the hearing of this application.   

    2.            The witnesses are material to the applicant’s case as their evidence will contradict the respondent’s contention that it had a valid reason for dismissal by reason of the applicant mistreating employees by shouting at and abusing them (Respondent’s Outline, [3(a)]), treating different members of the team differently (Respondent’s Outline, [3(b)]) and presiding over a poor workplace environment (Respondent’s Outline, [3(c)]), as follows:

    a.            Ms Fakhri was a witness to the alleged abusive incident involving the instructions on the Moselmane Package (Saqqaf, [30]-[40]; Saliba, [48]-[50]) and, based on the Investigation Report (Wicks, MW-10, p 41, [27]-[29]), her evidence will contradict the evidence of the respondent’s witnesses (Hamdi, [5]; Bahnasawy [25]-[26]; Tawfik, [26]-[27]);
    b.            Ms Daher was also a witness to the alleged abusive incident involving the instructions on the Moselmane Package and, based on the Investigation Report (Wicks, MW-10, p 41, [33]) her evidence will also contradict the evidence of the respondent’s witnesses;
    c.             Ms Danil and Ms Naddaf were both at work at the time of the alleged abusive incident involving the instructions on the Moselmane Package (Roster, attached) in the close confines of the open plan workspace and, based on their references (SS-1, p 63-64) and the information of the applicant, their evidence will contradict that of the respondent’s witnesses;
    d.            Ms Fakhri was a witness to the alleged abusive incident involving Ms Hamdi mistakenly referring to a Premier as the Prime Minister and, based on the Investigation Report (Wicks, MW-10, p 43, [42]), her evidence will contradict the evidence of the respondent’s witnesses (Hamdi, [5]; Bahnasawy [23]]; Al Swaiedi [14]);
    e.             Based on the Investigation Report (Wicks, MW-10, p 49 [74]), Ms Daher and Ms Fakhri were witness to the alleged abusive incident when Ms Al Swaiedi returned from holidays (Al Swaiedi, [13]) and their evidence will contradict the evidence of the respondent’s witnesses;
    f. Ms Danil and Ms Naddaf were both at work at the time of the alleged abusive incident when Ms Swaiedi returned from holidays (Roster, attached) and, based on their references (SS-1, p 63-64) and the information of the applicant, their evidence will contradict that of the respondent’s witnesses;
    g.            Based on the Investigation Report (Wicks, MW-10, [57(f), [64], [65], [66]), the evidence of Ms Daher and Ms Fakhri will contradict the evidence of the respondent’s witness to the effect that the applicant treated different members of the team differently (Hamdi, [5]; Bahnasawy [29]-[32]; Al Swaiedi [6]-[[11], Tawfik, [28]-[33])
    h.            Based on the their references (SS-1, p 63-64) and the information of the applicant, the evidence of Ms Danil and Ms Naddaf will also contradict the evidence of the respondent’s witness to the effect that the applicant treated different members of the team differently;
    i. Based on the Investigation Report (Wicks, MW-10, [147(a) & (e)), Ms Daher and Ms Fakhri both attended the workplace behaviour training in December 2022 and their evidence contradicts the evidence of the respondent’s witnesses that the applicant created a poor workplace environment by not taking the training seriously (Hamdi, [5]; Bahnasawy [29]-[32]; Tawfik, [34]-[35])
    j. Based on the Investigation Report (Wicks, MW-10, [155]), the evidence of Ms Fakhri will contradict the evidence of the respondent’s witnesses that the applicant created a poor workplace environment by not stopping team members from making inappropriate jokes (Hamdi, [5]; Bahnasawy [32]; Tawfik, [36])
    k.             Mr Kasim is material to the applicant’s case as it appears from an email received by the applicant from Mr Kasim (attached), that his evidence will directly contradict the evidence set out by Ms Tawfik in her statement (Tawfik, [38]) of abusive conduct by the applicant.  The evidence of Mr Kasim will be significant as it is accepted that he was not a member of the SBS Arabic TV News team and, for that reason, stands as an independent witness and not one of the applicant’s alleged “favourites”. 

    3.            As Ms Daher and Ms Fakhri were interviewed as part of the investigation and the Investigation Report contains material obtained from those interviews (as indicated above), the respondent is on notice of the general effect of the evidence likely to be given by those witnesses.  The general tenor of the evidence of Ms Danil and Naddaf is indicated by their references and the information of the applicant as indicated above.  The effect of the evidence of Mr Kasim is given in his email (attached). 

    4.            I am informed by Mr Saleh Saqqaf, the applicant, and verily belief that:

    a.            Ms Daher told the applicant to the effect that she was unwilling to give a statement as she was concerned her employment with the respondent may be jeopardised by giving a statement;
    b.            in mid-June 2023, he emailed letters to Ms Daher, Fakhri, Ms Danil and Ms Naddaf (attached) seeking their assistance in providing a statement in the application. 
    c.             After sending the letter to Ms Fakhri, he had a conversation with her in which she said words to the effect that she had already given the applicant a reference and that she could not come to the office to prepare a statement but that if she was called to attend Court, then she would come;
    d.            After sending the letter to Ms Hamssa, he had a conversation with her in which she said that she had spoken to a lawyer and would not provide a statement until the court required her to come as she worried about only being a casual;
    e.             After sending the letter to Ms Naddaf, he had a conversation with her in which she said to the effect that she had spoken to her family and they said she should not be involved as she should not go against work. 

    5.  All of the SBS witnesses would not all be required to attend for all of the hearing day, so that the scheduling of witnesses would avoid any prejudice to the airing of the SBS Arabic News bulletin. 

Respondent’s Reply Submission

  1. The Respondent submitted that the relevant context of the Forms F51 applications is that the Applicant is in flagrant breach of the Commission’s latest direction extending his time to file evidence in reply to 21 August 2023.

  1. The Respondent submitted that issuing the Forms F51 would lead to further and significant wastage of the Commission’s and the Respondent’s resources, as they will inevitably lead to an adjournment of the hearing dates as to allow the Respondent time to prepare to deal with the additional evidence, as well as any reply evidence which might be admitted.

  1. The Respondent submitted the Applicant has made no attempt to ameliorate the prejudicial impact of his chosen strategy on Respondent or the Commission, and until 4:42pm on Friday 1 September 2023, had not given any indication of the broad subject matter of the witness evidence.

  1. The Respondent submitted the factual matters set out by the Applicant’s Submission should be disregarded. No evidence has been filed in relation to those matters, and no explanation given for the failure to lead evidence about them. Even if the factual matters set out in the Applicant’s Submission were to be taken at face value, the Applicant’s attempts to obtain statements (or even outlines) from the potential witnesses appear to have been desultory. Apart from sending a template solicitor’s letter to three of the five potential witnesses on 19 June 2023, there appear to have been no efforts to secure cooperation of those witnesses.

  1. The Respondent submitted that it does not appear that the additional witnesses would contribute significantly to the evidence, and it appears the witnesses would be expected to give evidence that they did not perceive the Applicant to be abusive or to treat different team members differently. To that extent, the evidence would simply be cumulative to the evidence of the Applicant’s other witnesses. Simply adding further witnesses who say they did not themselves perceive any abuse or misbehaviour will not assist the Commission. 

Consideration

  1. The jurisdiction of the Commission to make an order requiring a person to attend

before it arises from s 590 of the Act, and in particular s 590(2)(a). The Act states at 590:

“590 Powers of the FWC to Inform Itself
…
590(2)…
(a) by requiring a person to attend before the FWC;”

  1. In Kennedy v Qantas Ground Services Pty Ltd t/a Qantas Ground Services Pty Ltd,

Qantas Group[1] (‘Kennedy’) a Full Bench of the Commission observed:

“In deciding whether or not to issue an order to attend under s.590(2)(a) of the Act, the
Commission will consider whether attendance at the hearing by the person to whom
the order will apply will assist in the resolution of the matter before it.”

  1. I do not consider that any of the persons to whom it is sought that Forms F51 should issue would assist in the resolution of the matters before me. While the Applicant correctly observes that an issue before me is whether the Respondent had a valid reason for dismissal relating to the Applicant’s conduct, I do not consider that the foreshadowed evidence would assist in the determination of that issue.

  1. I also have particular concerns regarding whether the Applicant can assert that the evidence sought to be led “will contradict” the evidence of the Respondent’s witnesses. It is apparent from paragraph [4] of the Applicant’s Submission that the only enquiries made of the prospective witnesses were made by the Applicant. The Applicant’s Solicitor then gives hearsay evidence of the contents of those enquiries. Even accepting such second- hand hearsay, it clearly does not establish the asserted evidence to be led as outlined in paragraph [2] of the Applicant’s Submission. For example:

(a)       Paragraph [4] of the Applicant’s Submission does not assert that Ms Danil was spoken to at all, and Ms Naddaf said that she had spoken to her family and they said she should not be involved as she should not go against work. However the mere existence of a roster, and the “close confines” of the office, cannot by themselves mean the evidence of Ms Danil and Ms Naddaf “will contradict that of the respondent’s witnesses”[2]; and

(b)       Paragraph [2(e) of the Applicant’s Submission asserts “Based on the Investigation Report (Wicks, MW-10, p 49 [74]), Ms Daher and Ms Fakhri were witness to the alleged abusive incident when Ms Al Swaiedi returned from holidays (Al Swaiedi, [13]) and their evidence will contradict the evidence of the respondent’s witnesses”. The only basis for that assertion is paragraph [74] of the Wicks Report, which merely notes the presence of Ms Daher and Ms Fakhri as follows:

In relation to the one incident that Ms Al Swaiedi was comfortable to share with me, she stated that while she was on leave visiting family in Iraq, Mr Rizk stepped into the role of Planning Producer in her absence. Upon her return to the office, the Respondent approached Ms Al Swaiedi to tell her that Mr Rizk had done a better job of Planning Producer than her and Mr Bahnasawy. Ms Al Swaiedi responded by saying that she was pleased her training enabled Mr Rizk to do a good job while she was away, which Ms Al Swaiedi claimed the Respondent did not take well to. In response, the Respondent allegedly shouted very loudly and aggressively at Ms Al Swaiedi, in the open office in the presence of Mr Rizk and others (Ms Daher, Ms Fakhri and Ms Tawfik), about why he felt Mr Rizk was better than her. Ms Al Swaiedi stated she and Mr Bahnasawy had previously requested to move away from the Planning Producer responsibilities and that if it was the Respondent’s intention to have Mr Rizk perform the duties of Planning Producer instead, there was a different way to have approached the discussion. She asserted:

“He is not diplomatic. For myself, if I was in that position, I would never say it in the same way. There is another way to talk. He should not be loud at all, no matter what happened. I keep silent until he finished, I was quiet and respectful. He got more aggressive. I let him shout and then I left my desk and came back after an hour when I calmed down”.

  1. The submissions by the Applicant that the evidence of those sought to be called will contradict that of the Respondent’s witnesses is based not on what those prospective witnesses have told the Applicant or his representatives, but on an assessment of what they are reported primarily to have said in the Wicks report, and what it is hoped they may say in evidence.

  1. I consider the attempts made by the Applicant to secure the participation of the further witnesses to whom they seek the Forms F51 to be directed to be significantly less than sufficient so as to warrant the compulsion of the Commission.

  1. Finally, I agree with the submission of the Respondent that the issuance of Forms 51 at this stage would result in a further adjournment of the Hearing dates. While three of the prospective five recipients of the Forms 51 were contacted on 19 June 2023, there is simply no explanation why it took until 15 August 2023, the day after the Applicant failed to comply with the Further Amended Directions, to agitate the application for the Forms 51. Pursuant to paragraphs (a) and (b) of s.577(1) of the Act, the Commission must perform its functions and exercise its powers in a manner that:

    (a)  is fair and just; and

    (b)  is quick, informal and avoids unnecessary technicalities.

  2. To further delay the Hearing of this matter would offend the obligations imposed by paragraphs (a) and (b) of s.577(1) of the Act.

  1. The Application for an Orders Requiring a Person to Attend Before the Commission directed to Nissrine Kahdra Daher, Jamileh Fakhri, Hamssa Danil, Dalal Naddaf, and Samir Kasim, is dismissed.

DEPUTY PRESIDENT


[1] [2018] FWCFB 3847 at [46].

[2] Applicant’s Submission at [2(c)] and {2f].

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Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847