Najmitdinov v Woolworths Group Limited

Application to adjourn the hearing of the appeal

1. The hearing of the appeal was listed for 2.15pm on 13 December 2019. On the afternoon of 12 December 2019 Mr Najmitdinov emailed the Tribunal a request that the hearing be postponed. That request was opposed by Woolworths. The Tribunal advised the parties that the hearing would proceed as listed and the application for adjournment would be dealt with at the commencement of the hearing.
2. In his email seeking an adjournment Mr Najmitdinov submitted: 1. Woolworths and its representatives have breached their duty to cooperate with the Tribunal, and breached s 71 of the NCAT Act, and his properly submitted appeal material which would be possible with an adjournment will expose unlawful acts by Woolworths and its representative at the hearing of the interim order application; 2. His properly completed appeal submission which would be enabled by an adjournment would provide full substantiation of arguments based on rule of law and humanitarian principles; 3. He was denied a proper and just hearing, which can be demonstrated in his full submissions; 4. There are issues with help and assistance provided by Benestar, subcontracted by Woolworths; and 5. He has further grounds not specified due to time-restricted circumstances.
3. In oral submissions Mr Najmitdinov stated that he is self represented and needs more time to provide material in support of his claim that the respondent and its representatives have made false statements. He has a health condition, and it has taken him time to transcribe the hearings of 15 and 22 February 2019.
4. The respondent opposed an adjournment, submitting that Mr Najmitdinov had six weeks to prepare his submissions for the appeal and had an extension of time, and did not comply. The respondent has filed its material. The appeal is delaying progress with consideration of Mr Najmitdinov's complaint in the Tribunal.
5. The Appeal Panel considered the submissions on the adjournment request, and refused the application to adjourn the hearing. The reasons for that decision are as follows.
6. The Tribunal's power to adjourn proceedings is conferred by s 51 of the NCAT Act. The principles applicable to applications for adjournment were discussed by the Appeal Panel in Armee v Brealey [2017] NSWCATAP 141, where the Appeal Panel said: 121. The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22]. …
7. The power to adjourn a hearing, as with any exercise of power under the NCAT Act or the procedural rules, must be exercised so as to seek to give effect to the guiding principle in s 36(1) of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
8. In Mesiha v Murrell [2017] NSWCATAP 1, the Appeal Panel summarised the statutory obligations of the Tribunal in the following terms: 36. Section 36(1) of the NCAT Act requires the Tribunal to give effect to the guiding principle which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal is required to exercise the powers given to it in order to give effect to this principle: S36(2). The parties are under a duty to cooperate with the Tribunal to give effect to this principle "and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal": S36(3). In doing so the "practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings": s36(5). 37. Section 38 of the NCAT Act provides that: (1) while the Tribunal is not bound by the rules of evidence, it is to observe the rules of natural justice: s38(2); (2) the Tribunal is to act with as little formality as the circumstances of the case admit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s38(4); (3) the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings: (a) understand the nature of the proceedings: s38(5)(a); (b) have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s38(5)(c). 38. These requirements make clear that in giving effect to the guiding principle the Tribunal is to have regard to the interests of both parties as well as issues of proportionality which include issues of cost and the impact upon the Tribunal in meeting its obligations in respect of other applications which it is required to determine.
9. In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 the Appeal Panel referred (at [20]) to the decision of the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.
10. The Appeal Panel continued, identifying the following principles governing applications for an adjournment: 22. It follows that a number of principles apply to applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.
11. The directions made at the appeal callover on 29 October 2019 required Mr Najmitdinov to provide to the Tribunal and the respondent by 19 November 2019 the material below on which he sought to rely, any fresh evidence, his submissions in support of the appeal, and the sound recording of the hearing at first instance and transcript. The time for compliance was extended at the request of Mr Najmitdinov to 22 November 2019. Mr Najmitdinov did not file and serve documents in accordance with those amended directions. Woolworths provided its documents, submissions and transcript on 9 December 2019.
12. The request for an adjournment was made by email, and the Tribunal received several subsequent emails from Mr Najmitdinov on the afternoon of 12 February and the morning of 13 February 2019. It is apparent from the documents provided by Mr Najmitdinov, which number several hundred pages, that most of that material is intended to be material in support of the claims made in the appeal, and that in substance the basis for the adjournment application was that he needed more time.
13. Mr Najmitdinov provided to the Tribunal material in support of his asserted medical condition, the detail of which he requested remain confidential. That material, in emails sent to the Tribunal at 9.08am and 9.16am on 13 December 2019, includes a medical certificate that confirms that Mr Najmitdinov has a medical condition, and other issues which he asserts are attributable to the claimed discriminatory conduct of the respondent.
14. The Appeal Panel was not persuaded that an adjournment of the appeal hearing was required or warranted in the circumstances. The Appeal Panel accepts that Mr Najmitdinov is self-represented, and that he has a medical condition which may (although the documents do not confirm) have affected his ability to prepare submissions in support of his appeal. The material provided by Mr Najmitdinov does not explain why he did not make a further request for an extension of time to provide material in support of his appeal, or waited until the afternoon before the hearing to request an adjournment. The respondent is prejudiced, having prepared for the hearing, and the hearing time allocated to this appeal cannot be used for the hearing of another matter. Notwithstanding that he had already been granted an extension of time, Mr Najmitdinov provided no material to the Tribunal or the respondent in compliance with the Tribunal directions, a factor which in the absence of a clear explanation counts against the grant of an adjournment. Adjourning the appeal hearing would further delay the hearing and determination of Mr Najmitdinov's application for leave to proceed with his complaint against Woolworths under the AD Act.

Whether time to lodge the appeal should be extended

1. Mr Najmitdinov submitted that an extension of time should be granted because the primary reason for the delay was a severe health and wellbeing breakdown in the aftermath of his termination on 1 April 2019. He applied to the Fair Work Commission because the respondent's lawyer had mentioned it, and did not pursue that further to the Federal Court because he was in no state to do so. Part of the delay was because he had applied for a fee waiver.
2. The respondent opposed an extension of time. The respondent submits that the delay is lengthy and significant, with no proper explanation, and during the period April to August 2019 Mr Najmitdinov had been able to file a general protections application in the Fair Work Commission on 16 April 2019 seeking reinstatement, and alleging contraventions in relation to his dismissal based on disability discrimination and victimisation grounds. A conciliation on 22 May 2019 was unsuccessful, and Mr Najmitdinov had not thereafter made a general protections court application. Mr Najmitdinov was also able to participate in the ADB investigation of the underlying discrimination and victimisation complaint. The respondent submits that no practical purpose would be served by an extension of time being granted, since Mr Najmitdinov's employment was terminated 8 months ago, and there are poor prospects of success.
3. The Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22] set out the relevant principles in relation to an extension of time in which to bring an appeal (references omitted): 21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), … and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable…
4. In considering those factors, the Appeal Panel finds: 1. The delay is lengthy. It was common ground that the decision and reasons for the refusal to grant the interim order were provided to the parties on 28 March 2019. The appeal was lodged on 14 October 2019, which was 171 days after the 28 days specified in rule 25(4)(c) of the Rules; 2. The reason for the delay is not satisfactory. As noted above, the Tribunal accepts, based on the medical certificate provided to the Tribunal on 13 December 2019, that Mr Najmitdinov has a medical condition and other issues. However, in circumstances where, as is not in dispute, Mr Najmitdinov was able in April and May 2019 to make an application to the Fair Work Commission and participate in the Commission conciliation process, and where he was able to participate in the ADB investigation processes between April and September 2019, the lengthy delay is not adequately explained. The Tribunal file confirms that Mr Najmitdinov did request a fee waiver, however that issue was resolved after further information was provided, on 21 October 2019, and did not affect the date recorded for the lodging of the appeal; and 3. There are poor prospects of success, as discussed below.
5. The respondent did not identify any specific prejudice, however the Appeal Panel notes the general prejudice in a party being required to participate in an appeal process including provision of documents and submissions well after the required period. There is also the prejudice to the proper conduct of the Tribunal proceedings in which Mr Najmitdinov is seeking leave to pursue his claim under the AD Act in the Tribunal.
6. In considering the prospects of success of an appeal, the Appeal Panel notes the grounds of appeal as stated in the Notice of Appeal: 1. The decision maker erred in the interpretation of s 50(1) of the AD Act, in requiring compliance with a more restrictive interpretation of s 50(1)(c) of the AD Act than was warranted or specified in the directions hearing on 22 February 2019; 2. Breach of procedural fairness and integrity; 3. Reliance on false and misleading statements by the respondent's representatives; 4. Respondent's provision of false and misleading statements in breach of s 71 of the NCAT Act; and 5. Bias towards the respondent's statements and ignoring relevant information and arguments provided, given the direct contradiction between the case presentations made by each party.
7. In oral submissions Mr Najmitdinov relied on what he asserted were errors in the submissions made at the hearing on 22 March 2019 as to his previous disciplinary history, submitting that Woolworths' legal representative had provided false information to the Deputy President and that he had in fact made multiple complaints which were complaints of breaches of the AD Act. He submitted that he had been caught out by relying on low level evidence.
8. In addressing the grounds of appeal the appropriate starting point is the reasons for decision provided by the Deputy President for refusing the interim order.
9. The Deputy President identified the criteria to be met before an interim order could be granted under s 105 of the AD Act, which are first, whether an applicant has made out a prima facie case, that is, has demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending the hearing, and secondly, the balance of convenience, that is, whether the inconvenience or injury likely to be suffered if an order is not granted outweighs or is outweighed by the injury the respondent would suffer if the order were granted.
10. The Deputy President then considered whether Mr Najmitdinov had made out a prima facie case of victimisation, noting that s 50 requires that the applicant has been subjected to a detriment, that the applicant has done one of the things listed in s 50(1)(a) - (d), and that the detriment be on the ground that the applicant has done or intends to do one of those things. The focus was on s 50(1)(c), which provides: (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has - … (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or … or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
11. The Deputy President stated: 10. For the purpose of these proceedings, Woolworths does not dispute that terminating Mr Najmitdinov's employment would subject him to a detriment. Woolworths also concedes that, in accordance with s 50(1)(c), Mr Najmitdinov has alleged that employees of Woolworths have "committed an act which, whether or not the allegation so states, would amount to a contravention of" the Anti-Discrimination Act." There are at least three instances where Mr Najmitdinov submits that emails he sent fall within s 50(1)(c).
12. Those three instances were emails sent by Mr Najmitdinov on 19 October 2018, 15 November 2018 and 24 December 2018, each of which referred to a complaint to be made with "a state authority".
13. The issue was whether Mr Najmitdinov had provided evidence that demonstrated a sufficient causal connection between any allegations under s 50(1)(c) and the threatened termination to justify preserving the status quo. The Deputy President considered the material relating to the incidents that triggered the investigation which occurred on 18 and 23 January 2019, and the submissions of both parties as to the inferences that could or could not be drawn as to any connection. The Deputy President considered the history of disciplinary action against Mr Najmitdinov, which included a written formal warning on 19 January 2018, and notification on 16 August 2018 of a proposed investigation of allegations of inappropriate workplace behaviour in August 2018, and noted that that investigation predated any of the three allegations made under s 50(1)(c). The Deputy President concluded that the evidence did not support Mr Najmitdinov's case that the January 2019 allegations were manufactured. While accepting that Mr Najmitdinov's allegation of discrimination made on 24 December 2018 was proximate to the alleged incidents on 18 and 23 January 2019, the Deputy President concluded that given the history there was almost no basis for inferring any connection between the threatened termination and Mr Najmitdinov's allegations. The Deputy President was not persuaded that if the evidence remained as it was there was a sufficient likelihood of success to justify the preservation of the status quo.
14. The Deputy President then considered the balance of convenience, concluding that there was prejudice to Mr Najmitdinov if the order was refused and to Woolworths if it was granted; and concluded that given the extremely low prospects of success an interim order was not justified.
15. The Appeal Panel concludes that there is no error in the statement of the principles applicable for the grant of an interim order under s 105 of the AD Act in the reasons for decision, or in the application of s 50(1)(c) of the AD Act in considering whether Mr Najmitdinov's claim of victimisation was likely to succeed.
16. Appeal grounds 1 and 2 take issue with what is said to be a disparity between what was said in the directions hearings and the approach taken to the evidence provided by Mr Najmitdinov. The respondent provided a transcript of the hearing on 22 March 2019, and Mr Najmitdinov provided a transcript of the directions hearings on 15 and 22 February 2019. The parties were asked to confirm to the Tribunal by 20 December 2019 whether they identified any inaccuracies in the transcript prepared by the other party. The respondent's representative confirmed that differences between the transcript prepared by Mr Najmitdinov and transcripts they prepared were of form and not substance and they had no objection to those transcripts. No response was received from Mr Najmitdinov. The Appeal Panel relies on the three transcripts provided.
17. At the directions hearings on 15 and 22 February 2019 Woolworths was represented by its Operations Manager, and Mr Najmitdinov represented himself. The Deputy President explained on both occasions that the hearing of the interim order application would require the parties to provide evidence, however the interim order application would not be deciding whether Mr Najmitdinov had a discrimination complaint that would succeed. On 22 February 2019 the Deputy President explained that she would be taking into account the strength of Mr Najmitdinov's case without deciding it, as well as prejudice to both Mr Najmitdinov and Woolworths. The Deputy President described the evidence required as "low level", that all that would be decided would be whether Mr Najmitdinov had a weak case or a strong case, and that if Mr Najmitdinov had a very weak case it would be unlikely that the order would be made. The Deputy President was clear that Mr Najmitdinov would need to establish that he had been targeted because of the previous complaints.
18. The transcript of the hearing on 22 March 2019 confirms that the Deputy President sought to have Mr Najmitdinov explain the connection between a complaint he had made and the allegations on which Woolworths was relying, and that she explained that he needed to point to the evidence of the link between an intention to make a complaint in October 2018 and his belief an incident was being manufactured. There is no indication in the transcript, or in the reasons for decision, that the Deputy President was imposing a different or higher evidentiary standard than that which she had explained in the directions hearings.
19. As to grounds 3, 4 and 5, the transcript of the hearing on 22 March 2019 confirms that the Deputy President heard from both parties, and that considerable time was taken working through the material provided by Mr Najmitdinov. The reasons for decision confirm that, as stated during the hearing, the task was not to determine the claim of discrimination and victimisation, but to consider whether there was a prima facie case. The fact that Mr Najmitdinov disagrees with the Deputy President's conclusion that he had not established a prima facie case does not constitute any error on her part in evaluating the evidence.
20. The Appeal Panel concludes that none of the grounds of appeal are sufficiently arguable for it to conclude that Mr Najmitdinov's case on appeal has substantial merit. In circumstances where the delay is long, and the reason for that delay is not satisfactory, the Appeal Panel is not satisfied that to refuse the application for an extension of time would work an injustice. There is no proper basis on which to extend the time to lodge the appeal. That conclusion means that the appeal must be dismissed.

Whether leave to appeal would be granted

1. As noted above, Mr Najmitdinov would require leave to appeal the interlocutory decision. The Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17 gives some guidance as to when leave to appeal should be granted, as follows: [84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45].
2. The circumstances in which it is appropriate to grant leave are not fixed or closed, subject to the principle that the power to grant leave should be exercised sparingly: Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24. As previous Appeal Panels have indicated, the circumstances where it is appropriate to grant leave identified in Collins v Urban "is not an exhaustive list": AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 at [58]; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [34].
3. Mr Najmitdinov submitted that leave should be granted because the matter raises issues of public importance, namely a decision based on unlawful conduct. Woolworths' legal representatives had submitted that he had been given multiple warnings but there had been only one, in April 2018; a warning on 16 August 2018 was within the period of the complaint to the ADB, which he made on 6 June 2018. The decision is morally wrong and unacceptable result. He had made multiple complaints which were in fact complaints of breaches of the AD Act. Human rights principles including Magna Carta were breached. In reply Mr Najmitdinov stated that the respondent had changed its position in the hearing on 22 March 2019, and he was caught out by relying on low level evidence.
4. The respondent opposed leave being granted, submitting that there was no error in the decision to refuse the interim order. The respondent properly conceded that terminating Mr Najmitdinov's employment would subject him to detriment, and the show cause letter of 11 February 2019 preceded the respondent's knowledge of the complaints to the ADB. The case focussed on s 50(1)(c) of the AD Act, and Mr Najmitdinov relied on three emails he had sent in 2018. The Deputy President concluded there was no or insufficient connection between the threatened termination and each of the three emails, and was not persuaded that there was sufficient likelihood of success to justify the preservation of the status quo. The Deputy President concluded on the balance of convenience that if ultimately successful Mr Najmitdinov could be entitled to a remedy including damages, and that he would have an opportunity to summons material on Woolworths' email system to support his complaints, whereas if an interim order were granted and Mr Najmitdinov was ultimately not successful Woolworths would not be able to recoup wages paid.
5. The Appeal Panel has considered, and rejected, Mr Najmitdinov's arguments as to the decision reached by the Deputy President above. The Appeal Panel is not persuaded that there is any issue of principle or question of public importance, or any error apparent in the decision or unorthodox findings of fact, that might warrant a grant of leave to appeal. Further, in circumstances where Mr Najmitdinov's employment was terminated six months before he lodged this appeal, it is not apparent that to grant leave to appeal would have any practical utility.
6. The Appeal Panel concludes that even if an extension of time to lodge the appeal were granted, it would not grant leave to appeal the decision to refuse the application for an interim order.

Orders

1. The Appeal Panel orders: 1. The application for an extension of time to lodge the appeal is refused. 2. Leave to appeal is refused. 3. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2020