Balkanis v Fisher

[2018] FCCA 3777

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALKANIS v FISHER & ANOR [2018] FCCA 3777

Catchwords:
INDUSTRIAL LAW – Unlawful dismissal – general protections – application for extension of time – factors relevant to grant of an extension of time – 334 days out of time – no adequate explanation for delay – application for extension of time dismissed.  

Legislation:

Fair Work Act 2009 (Cth), ss.70(2), 370, 570(2)

Cases cited:

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Applicant: HELEN BALKANIS

First Respondent: KATHLEEN FISHER

Second Respondent: FRONDITHA AGED CARE

File Number: MLG 1147 of 2018

Judgment of: Judge McNab

Hearing date: 6 December 2018

Date of Last Submission: 6 December 2018

Delivered at: Melbourne

Delivered on: 19 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Z Partos

Solicitors for the Applicant: Carbone Lawyers

Counsel for the Respondents: Mr M Minucci

Solicitors for the Respondents: Holding Redlich

ORDERS

1. The application for an extension of time in which to bring an application, pursuant to s 370 of the Fair Work Act 2009 (Cth), be dismissed.

2. The application filed 27 April 2018 be dismissed.

3. There be no order as to costs.

FEDERAL CIRCUIT COURT

OF AUSTRALIA
AT MELBOURNE

MLG 1147 of 2018

HELEN BALKANIS

Applicant

And

KATHLEEN FISHER

First Respondent

FRONDITHA AGED CARE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 May 2018 the Applicant filed a claim under the Fair Work Act 2009 (Cth) (‘Act’) alleging dismissal in contravention of the general protection provision of the Act.

2. The matter came before the Court on 28 May 2018 as a directions hearing, where the Applicant appeared in person and there was no appearance by or on behalf of the Respondents. The Court ordered, amongst other things, that the Applicant file and serve a statement of claim, which included a chronology of relevant events, a statement of compensation under Order 12, and the response by 25 July 2018. Thereafter the Court ordered the matter be referred to mediation and to final hearing on 9 November 2018.

3. The orders were made by the Court without appreciating that the Respondents had not been served and that the application was substantially out of time. Although an application had been filed for leave to be granted for the application to be served out of time, the Respondents only became aware of the proceeding having been filed in August.

4. On 23 October 2018 the Respondents filed an application in the case seeking orders that:

   1The Second Respondent be replaced by the entity Fronditha Aged Care (ACN 138 152 682);

   2The proceeding number MLG1147/2018 (the proceeding) be summarily dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth);

   3Further and alternatively the document titled ‘Statement of Claim File No. MLG 1147/2018’ filed by the Applicant in the Proceeding be struck out in its entirety;

   4The Applicant pay the Respondents’ costs.

5. The Respondents’ application is supported by an affidavit of Hannah Maude Dunai, affirmed 19 October 2018. Ms Dunai is an Associate at the firm Holding Redlich who are acting for the Respondents in this matter. In substance, Ms Dunai deposed that the First Respondent become aware of the proceeding when she received a notice of mediation dated 21 August 2018. On 18 October 2018, Ms Dunai received a call from Mr John Karantzis of Carbone Lawyers, who identified himself as a solicitor for the Applicant proceeding.

6. On 23 October 2018, orders were made by consent that:

   1The mediation on listed on 20 October 2018 be vacated.

   2The Orders of Judge McNab dated 28 May 2018 be vacated.

   3The hearing of the Respondents application case list of

   
   

   30 October 2018 be vacated and relisted to 6 December 2018 at 9:30AM.

   4The Applicant file and serve an outline of submissions in response the Respondents application case by 4:00PM on

   
   

   9 November 2018.

7. The matter came on for hearing before the Court on 6 December 2018.

Background

1. The Applicant was terminated from her employment on

   
   

   24 February 2017. Her account of the termination of employment and the reasons for it are set out in an affidavit she filed which is sworn on

   
   

   9 November 2018. That provides that she was employed by Fronditha Aged Care on 30 August 2016 as a ‘head chef’. She was based at an aged care centre in Thornbury but controlled the menus of all the Fronditha Aged Care centres in Thornbury, Lower Templestowe,

   
   

   St Albans and Clayton.

2. She deposes that on 6 February 2017 she had a workplace injury where she cut her middle left finger badly, fracturing bone and severing nerves as she was cleaning a blender at work. As a result of the injury she obtained medical certificates from her treating general practitioner certifying that she was unfit for work until 27 February 2017.

3. She deposes that she had assumed that the WorkCover claim would be submitted by her employer and states that she became concerned that the employer was not treating her injury as a WorkCover claim. She texted her employer on 19 January 2017 regarding pay and that her absence was being treated as sick leave when she considered that she should be on WorkCover as she had suffered a workplace accident. On

   
   

   24 February 2017 she visited her doctor who gave her a medical certificate clearing her to resume work on light duties as from 27 February 2017. She states that she was told by the doctor to deliver the certificate to her employer’s HR department, which she did. On the same day she handed the certificate to her manager and was then handed a letter, dated 23 February 2017, which stated: ‘we wish to advise you that we have determined not to continue with your employment within the minimum employment period. This decision is effective from the date of this letter’.

4. The Applicant states at [23] of her affidavit:

   I was not given any reasons for my dismissal on 24 February 2017. After I requested reasons, I received a letter on 28 February 2017 suggesting that the reason for my dismissal was due to my performance. These reasons were unknown to me and untrue and I believe they are made up. I had never received any performance review or verbal or written warning during my employment with Fronditha.

5. On 15 March 2017 the Applicant filed a general protections application involving dismissal in the Fair Work Commission.

6. The Fair Work Commission conducted a conference to deal with the dispute on 1 May 2017 and issued a certificate under s 368 of the Act, certifying that it was satisfied that all reasonable attempts to resolve the dispute had been, or are likely to be, unsuccessful.

7. Pursuant to s 778 of the Act, the expiry date for the Applicant to file an application in the Court was 30 May 2017. The application filed on

   
   

   27 April 2018 (I note that the filing details are provided by the Court say that it was filed on 1 May 2018 but I give the benefit of to the Applicant of it having been submitted on 27 April 2018), is 334 days out of time.

Extension of time principles to be applied

1. Both parties refer to the principles identified by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 as matters to be taken into account by the Court relating to the exercise of its discretion to extend time. Those principles are:

   a)special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend;

   b)action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time;

   c)prejudice to the Respondents, including prejudice caused by delay will go against the granting an extension of time;

   d)the mere absence of prejudice to the Respondents is an insufficient basis to grant an extension of time;

   e)the merits of the substantive application may be taken into account in determining whether to grant an extension of time; and

   f)consideration of fairness as between the Applicant and other persons is in a like position are relevant to the exercise of the Court's discretion

2. In support of the application, the Applicant relied on her affidavit, sworn 9 November 2018, and an affidavit of Theodoros Diamandopoulos, sworn 9 November 2018.

3. The Applicant's affidavit deposes that after the certificate was issued by the Fair Work Commission, she attempted to lodge an application for arbitration to be conducted by the Commission on 29 May 2017. She says in substance that she had not appreciated that conciliation by the Commission requires consent of both parties and that she had not obtained that consent. She received a letter from the

   
   

   Fair Work Commission telling her that the form that she had lodged on

   
   

   29 May 2018 was not properly completed. The correspondence from the team leader of the Registry of the Fair Work Commission clearly advised the Applicant that the general protections consent application can only be used where both parties consent to the Commission arbitrating the matter. She was told that if the Second Respondent does not consent to arbitration then she may be able to lodge a general protections court application. She was also directed to JobWatch for assistance and a free legal service called the Workplace Advice Clinic.[1]

   [1] Affidavit of Helen Balkanis, sworn 9 November 2018 HB-5.

4. Later that same day, the Applicant sought advice from the Registry Manager in relation to the general protections court application and was promptly told by the Registry Manager that the general protections court application is not a Fair Work Commission application form. She was also told that in general protections matters, where the parties do not agree to the Commission arbitrating the matter, that the Applicant may apply to the Federal Circuit Court or the Federal Court for a final decision and that forms may be available online, or alternatively she could contact the Courts directly. Further, she was told that she may like to seek some legal advice if she was not sure which application to make.

5. At the time that the Applicant was dealing with the

   
   

   Fair Work Commission, she had consulted with her current solicitor in relation to her workplace injury (but not her general protections claim). The Applicant deposes that she then sought consent from the

   
   

   Second Respondent to agree to arbitration in the Fair Work Commission, but was advised by an email from the First Respondent that the

   
   

   Second Respondent did not agree to attend arbitration. This occurred on 5 June 2017, and at about this time she consulted with JobWatch.

6. On 12 June 2017 she completed paperwork to lodge a general protections claim with this Court. She then attempted to electronically lodge the application and says that she attempted to do so on

   
   

   27 June 2017, 5 July 2017, 6 July 2017, 20 July 2017, 14 September 2017 and 7 March 2018.

7. The documents appended to the Applicant's affidavit to demonstrate that from 2 June 2017 through to 20 July 2017, the Applicant was attempting to progress her claim and was, from July 2017, attempting to the lodge her claim with the Court. The documents disclose that she was corresponding with the Court by email in relation to the lodgement of the forms and waiving the filing fee on account of hardship. The documents also show that she was given being given individual assistance by staff at the Registry of the Court, including an email from a Client Services Officer to her on 6 July 2017, which gave her specific instructions in relation to properly lodging the documents. It seems much of the delay was caused by the Applicant seeking to apply for an exemption of fees due to financial hardship.

8. The Applicant's affidavit indicates that on 15 September 2017 she received an email from the e-lodgement Registry of the Court telling her that the lodgement of documents was rejected as it was not complete. Her next attempted lodgement was on 7 March 2018. At [79] of her affidavit filed 9 November 2018 she states:

   It is very hard for me to remember everything that happened throughout this period of trying to get the documents lodged, however, as I said in my March affidavit, after not hearing anything from the Court I decided to follow up and I called the general Federal Circuit Court number and they said they had nothing on file so I decided to re-lodge.

   She then attempted to re-lodge the documents on 7 March 2018,

   
   

   13 March 2018 and again on 27 April 2018, when she was successful.

9. The delay and inaction between September 2017 and March 2018 is significant. The Applicant says that throughout this period she was being treated for her injury, suffering from extreme pain, seeing a psychologist for depression, stress and anxiety and that she was receiving assistance from an occupational therapist and physiotherapist. She also states that she was taking medication including Panadeine Fort, Lyrica, Zoloft, Valium, Zomac, Mobic and Temazepam. The affidavit of

   
   

   Mr Diamandopoulos states at [7] that during the period from

   
   

   15 September 2017 to 7 March 2018 they were waiting to hear back from the Court and that during this period they believed that the lodgement was pending. It also states that while they were waiting for the Court to get back to them, through this period there was a Christmas and New Year break and Mr Diamandopoulos’ father was very sick and passed away in February 2018 and that his illness occupied much of their time.

10. The Respondents submit that the Applicant cannot use the fact that she was self-represented at the time and that she attempted to lodge documents as an excuse for the lengthy delay. They state that she has ignored advice has been given to her by Registry staff, both of the Fair Work Commission and the Court, and that in July 2017 she received advice from JobWatch in relation to the processing of the application (at which time the application would have been 31 days out of time). It was submitted that the very lengthy delays are inordinate and that, whilst no specific detriment can be pointed to, the application should not proceed.

Merits of the Applicant's Claim

1. At the return of this application, the Applicant relied on a proposed amended statement of claim, which removed the First Respondent as a respondent. This amended statement of claim also pleaded in a comprehensive and clear manner the basis of a claim that the Applicant's employment was terminated with the Second Respondent as a result of having exercised or proposing to exercise a workplace right, or alternatively that her employment was terminated because of a temporary absence due to injury.

2. The proposed statement of claim sets out that on 6 January 2017, the Applicant sustained an injury to her middle left finger in the course of employment, that the injury was a workplace injury and that the employer had not reported the injury to the Victorian WorkCover Authority.

3. The Applicant was absent from work from 6 January 2017 until her employment was terminated on 23 February 2017. Paragraph 17 of the proposed statement of claim pleads that on 23 February 2017, while the Applicant was temporarily absent from work due to injury, and without her knowledge, the Second Respondent terminated the Applicant's employment. Paragraph 18 pleads to the effect that the Applicant attended the workplace on 24 February 2017 to deliver a medical certificate which cleared her for light to normal work from

   
   

   27 February 2017. When she presented her manager with that certificate she was handed a letter of termination dated 23 February 2017, stating that: “we wish to advise you that we have determined not to continue with your employment within the minimum employment period. This decision is effective from the date of this letter”.

4. I accept on the basis of the matters raised in the proposed amended statement of claim that the Applicant has articulated an arguable claim.

Consideration

1. Whilst I accept that the Applicant has explained the difficulties that she had in filing her claim between June and September 2017, the delay between September and March 2018 has not been adequately explained and does constitute an inordinate delay.

2. I accept that the Applicant has demonstrated that from the date of termination she took steps to contest the decision to terminate her employment. However, I do not find that there has been an acceptable explanation for the very long delay, particularly between

   
   

   September 2017 and March 2018. I also take into account considerations of other persons in a like position to the Applicant, and in my view, there is no reason offered why the Applicant did not attend the Court Registry in person to file her application if she was having difficulty dealing with the e-lodgement process. Further, the documents attached to her affidavit demonstrate that throughout the process, Court Registry staff have actively assisted her and she had the benefit of assistance from JobWatch.

3. Whilst the steps that the Applicant has taken show that she contested the termination, that consideration is outweighed by the length of delay and what I regard as a lack of a reasonable explanation for that delay. The Applicant was clearly informed in September 2017 that the filing of her application had been rejected by the Court, yet delayed until March 2018 to attempt to refile the application. The matters raised by the Applicant and Mr Diamandopoulos do not provide an adequate explanation for that length of delay. Whilst the Applicant does have an arguable claim, that consideration is also outweighed by the length of the delay.

4. That the Second Respondent cannot point to particular prejudice is not of itself a basis for extending the time period. In my view, the grounds advanced by the Applicant do not persuade me that it is appropriate to extend the time to file an application. Accordingly, the Applicant's application for an extension of time is rejected.

5. As this is a matter arising under the Act, I will make no order as to costs;[2] there is no apparent basis for suggesting that the application was made without reasonable cause.

   [2] See Fair Work Act 2009 s 570(2).

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 19 December 2018