A religious organisation has been forced to defend three separate unfair dismissal claims by the same former rabbi, prompting the Fair Work Commission to clarify its application procedures amid claims of bias against employers.
Strathfield & District Hebrew Congregation terminated the employment of Rabbi Samuel Tov-Lev on 1 July 2011, with the rabbi lodging an unfair dismissal claim three days later.
However, the application was withdrawn two weeks later, prior to any conciliation taking place.
Then in November 2013, Rabbi Tov-Lev lodged a second claim with the Fair Work Commission (FWC), despite being outside of the 21-day time frame from when the dismissal takes effect in which applications must be lodged.
The synagogue lodged a formal objection to the application on those grounds, which was upheld, resulting in the rabbi’s claim being dismissed.
Despite having the right to appeal judgements by the FWC, no appeal was lodged.
Yet in May this year, Rabbi Tov-Lev made a third unfair dismissal claim against the congregation.
Again, Strathfield & District Hebrew Congregation objected to the application on the grounds of it being outside of the commission’s time restrictions, as well as the fact that a previous determination on the matter had already been made.
And once again, the FWC sided with the congregation.
“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,” the commissioner said.
“There is no capacity under the Fair Work Act, having dismissed an application, for it to be rerun 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 rerun 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.”
At the centre of the claim were allegations that the congregation’s board was “illegal” and therefore they did not have the authority to terminate his employment.
Employers complain of anti-business bias
A separate unfair dismissal case – in which a small marketing analytics firm was forced to pay $70,000 compensation to a former employee despite it claiming to have issued the worker with numerous performance warnings – riled up many employers, who complained that the rules are overly generous to workers at the expense of businesses.
“Fair Work only looks after the employee,” one My Business reader commented.
“When consulting a lawyer regarding dismissing an employee, we were basically informed, even if [you] dot your I's and cross your T's, you still will probably have to pay out more if they put in an unfair dismissal claim.
“Yet you can train someone for years, put up with attitude and work issues and they can leave whenever they like. They probably even went to the interview on your time!”
Another asked: “So when can a business claim loss of revenue against a worker due to the poor performance of the worker?
“This unfair dismissal law is extremely one-sided and is all in the favour of the worker… the whole system needs to be levelled up so that the business and the worker have to provide documentation and proof. It is no wonder businesses in this country struggle to make ends meet.”
A third said that “unfortunately, there is no such thing as ‘Fair Work’”.
“In my opinion, Fair Work should mean that for both parties on the same terms. Employers have lost control of their businesses in this country.
“The cost and legislation regarding employment has become ridiculous. Hence, more job losses to overseas.”
Fair Work Commission says case 'unusual'
Responding to My Business’ request for comment, a spokesperson for the FWC said the case involving Rabbi Samuel Tov-Lev and Strathfield & District Hebrew Congregation was “quite unusual”.
Ultimately, the commission is governed to act under the conditions prescribed by the Fair Work Act – which, it appears, do side with workers in terms of the number of applications able to be made.
“The Fair Work Act does not limit the number of applications an individual can make to the Fair Work Commission, even if they have lodged previously. When an application is received, it is checked and processed. The commission does not have discretion under the act to determine whether it should accept an application or not,” the spokesperson said.
“[However,] the legislation doesn’t permit multiple applications being made at the same time in relation to the same conduct, such as lodging both an unfair dismissal application and a general protections application in relation to one dismissal.”
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.