Cacoutas v HBO Accounting Pty Ltd
[2021] FedCFamC2G 270
•26 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cacoutas v HBO Accounting Pty Ltd [2021] FedCFamC2G 270
File number(s): MLG 1134 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 26 November 2021 Catchwords: INDUSTRIAL LAW – Application pursuant to s370(a)(ii) of the Fair Work Act 2009 (Cth)for an extension of time within which to make a general protections court application – whether applicant has reasonable explanation for delay– whether application is meritorious – application allowed Legislation: Fair Work Act 2009 (Cth) ss.340, 342, 351(1), 352, 360, 361, 370
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) rr.1.04, 1.07, 15.12, 15.13
Cases cited: Bird v Foreshew & Ors [2015] FCCA 3315
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Chou v Digital161 Pty Ltd [2021] FCA 640
Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 28 October 2021 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: In person Solicitor for the Respondent: HR Legal ORDERS
MLG 1134 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN CACOUTAS
Applicant
AND: HBO ACCOUNTING PTY LTD
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
26 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant is granted an extension of time to file his application – Fair Work Division form dated 4 April 2021 and Form 2 Claim under the Fair Work Act 2009 (Cth) alleging dismissal in contravention of a general protection dated 31 December 2020 - to 31 May 2021.
2.The respondent file and serve a response within 14 days from the date of this order.
3.Pursuant to section 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding be referred to mediation by a Registrar of this Court with such mediation to be conducted as soon as practicable.
4.In the event that the matter does not settle at the conclusion of the mediation, the Registrar conduct a case management conference immediately following the mediation to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Registrar may give further directions. The Registrar is to report the results of the mediation or case management conference to the Court as soon as is reasonably practicable after the conclusion of the mediation or case management conference.
5.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION
The applicant in this proceeding, Mr Cacoutas, filed an application in this Court on 31 May 2021. In that application, Mr Cacoutas alleges that the respondent, HBO Accounting Pty Ltd (“HBO Accounting”), took adverse action against him, in the form of dismissal, because he exercised a workplace right by asking for a pay review and because of his possession of two physical attributes. Mr Cacoutas claims that HBO Accounting contravened ss.340, 351(1) and 352 of the Fair Work Act 2009 (Cth) (“the Act”). He seeks an order for compensation.
No response has been filed by HBO Accounting. A notice of address for service has been filed.
Pursuant to s.370(a)(ii) of the Act, Mr Cacoutas was required to file his application in this Court within 14 days of a certificate being issued by the Fair Work Commission (“FWC”) pursuant to s.368 of the Act. Here, the certificate was issued on 18 December 2020. Accordingly, Mr Cacoutas was required to file his application on or before 1 January 2021. He did not do so. Rather, as noted above, he filed his application on 31 May 2021 – that is 149 days late.
Section 370(a)(ii) of the Act gives the Court the discretion to extend the time for filing of an application. At the first court date on 16 September 2021, Mr Cacoutas appeared in person. Mr Sztrajt appeared for HBO Accounting. Mr Sztrajt indicated that HBO Accounting opposed an extension of time being granted.
The Court made orders as follows:
1.The applicant file and serve an affidavit together with an outline of submissions (not exceeding five pages) directed at his application for an extension of time by not later than 7 October 2021.
2.The respondent file and serve any reply, affidavit and submissions (not exceeding five pages) by not later than 28 October 2021.
3.By 4.00 pm today, the applicant serve on the respondent by sending to [email protected] a sealed copy of his originating application and Form 2 filed on 31 May 2021.
4.The application for an extension of time be will be determined on the papers.
The “papers” that are before the Court in determining the extension of time are:
(a)the originating application and Form 2 filed 31 May 2021;
(b)an outline of submissions filed by the applicant on 10 September 2021;
(c)an affidavit of the applicant dated 9 September 2021 (“first Cacoutas affidavit”);
(d)an affidavit of the applicant dated 3 October 2021 (“second Cacoutas affidavit”);
(e)an outline of submissions in relation to the request for an extension of time filed by HBO Accounting on 28 October 2021; and
(f)an affidavit of Ben Orlanski of HBO Accounting dated 26 October 2021.
EXTENSION OF TIME
As noted above, s.370(a)(ii) of the Act requires that an application in this Court be commenced within 14 days after the day the certificate is issued. However, the Court has the discretionary power to extend time if it deems it appropriate to do so.
The principles that the Court applies when considering whether to extend time are not “fixed”. However, the factors identified by Justice Marshall in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 in the context of considering an application made under a provision of the Industrial Relations Act 1988 (Cth) that is similar to s. 370(a)(ii) of the Act have been regularly transposed and applied to this jurisdiction.
The factors identified by Justice Marshall in Brodie-Hanns are:
(a)Special circumstances are not necessary but the Court must be positively satisfied that the 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 respondent including prejudice caused by delay will go against the granting of an extension of time.
(d)The mere absence of prejudice to the respondent 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.
(f)Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the court’s discretion.
The Court can also consider any other matters it considers relevant and which the parties raise in support of, or in opposition to, the request for an extension of time.
MR CACOUTAS’ CASE
In a submission attached to the second Cacoutas affidavit, Mr Cacoutas states that he lodged his application within the prescribed time frame but it was rejected on the grounds that it was not substantially complete. He submitted “Form 2” and paid the court fee of $690 but had not lodged the “Small claims Fair Work Application Form” for the following reasons:
(a)Due to medical conditions and immense stress, Mr Cacoutas planned a trip to Queensland from the 28th December to 26th January 2021. This time away impacted lodging the application after it was initially rejected.
(b)After he was terminated, Covid-19 made it difficult for Mr Cacoutas to maintain proper organisation, especially as he spent time searching for a new job. He also spent time taking care of his father, who has terminal cancer, from February 2021 to April 2021, including working for him during the month of February. This took time away from attending to the application in this matter.
(c)Mr Cacoutas has a legitimate case against HBO Accounting due to circumstances of his termination with strong evidence supporting that if he had not been absent from work and exercised his workplace right he would not have been terminated.
(d)The timing of Mr Cacoutas’ termination was in close proximity to the events of his work enquiry, his absence from work as well as the aggressive confrontation between himself and Henry Orlanski to which he received an official warning a day before his termination.
Annexed to Mr Cacoutas’ affidavit was a two-page document described as a “summary of all lodgements on Federal Circuit Court E-lodgment Portal that were rejected”. The document records that on the following dates and for the following reasons, a document (not identified in the summary) was rejected for filing by the Melbourne Registry of this Court:
Date Reason
1 January 2021 It is not substantially complete
2 March 2021 It does not comply with Court Rules
6 April 2021 It does not comply with Court Rules
12 April 2021 It does not comply with Court Rules
16 April 2021 Other reasons
8 September 2021 It does not comply with Court Rules
HBO ACCOUNTING’S CASE
HBO Accounting opposes any extension of time. In that regard, HBO Accounting filed an affidavit from its Managing Partner, Mr Ben Orlanski. Insofar as the affidavit addresses procedural matters it records, as follows:
10.On 18 December 2020, the respondent received a certificate under section 368 which I understood was a result of the matter not settling or resolving during the conciliation…
11.Also on 18 December 2020, I received an email from the applicant concerning the treatment of the superannuation guarantee charge listing in his final pay slip…
12.As the Respondent had received legal advice that the applicant had 14 days from the provision of the certificate to make an application to the Court and we did not receive any such application by that deadline, I believed that the applicant had dropped the matter and moved on.
13.On 14 July 2021, I was copied in on an email from the applicant to the Court in which he was seeking an adjournment to a hearing for an adverse action matter against the respondent…
14.It was only after that, that I was made aware of the further application made by the applicant on 4 April 2021, as that application was never served on the respondent.
15.On 16 July 2021, the legal representatives for the respondent wrote a letter to the applicant confirming that his application had not been served on the respondent and setting out that the application was out of time…
16.On 1 August 2021, the applicant sent the legal representative for the respondent an email with the subject line ‘Fwd: Proof of lodgement’ containing two image attachments (Images) that purported to be evidence that he had lodged the application on time…
17.The Images show a record on the eLodgement platform of the applicant’s attempt to file his Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, listing the date of lodgement as 1 January 2021.
18.The Images confirm the reasons that the lodgement was rejected, being that the form was “not substantially complete”.
19.The Images confirm that the applicant was notified by the Court that, ‘Your Form 2 application is blank, Please complete the form. You need to also lodge a Application Fair Work Division’ and file this document plus the Form 2 to pay the correct fee. Regards Robert (03) 8600 333’.
20.The applicant was generally skilled with the everyday use of computers and had the capacity to lodge the required form properly with the registry on time.
21.The applicant is fluent in the English language and had the capacity to contact Robert on the above number.
22.The applicant should have had no difficulty understanding that the lodgement of his form in January 2021 had been rejected.
…
24.I do not believe that the applicant had any valid reason for not filing on time. I understand that the applicant was employed following his termination with the respondent and before lodging his out of date application on 4 April 2021. I am not sure if he was employed for the duration of the period.
25.Given that the applicant was able to lodge an incomplete application on 1 January 2021, there is no reason why he could not have filed a complete application at that time, or in the immediate days after.
…
27.I believe that the respondent has been prejudiced by the way that the matter has now been put and would be prejudiced if the Court grants the applicant the extension of time he is seeking.
HBO Accounting submits – beyond the matters identified in Mr Orlanski’s affidavit - that the following decisions, each of which have characteristics in common with this case, provide a useful guide as to the disposition of the application. These cases are:
(a)Chou v Digital161 Pty Ltd [2021] FCA 640, where the applicant filed his application only one day out of time. The applicant subsequently argued that the reason for the delay was that he encountered difficulties in navigating the claim procedure and the Court’s processes as a self-represented litigant. As evidence, the applicant established that his attempts to lodge his application had been rejected three times. The Court found that without clear prospects of success, it could not be satisfied that it was appropriate to grant an extension of time.
(b)Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671, where the applicant filed his application four days out of time and argued for an extension of time on the basis that he was not familiar with the Court’s processes, that he was waiting for additional information from the respondent and that his depression was a contributing factor. The Court did not consider any of the explanations to satisfactorily explain the delay, noting that most self-represented litigants are unfamiliar with Court processes and this was not a factor that weighed in favour of an extension of time.
(c)Bird v Foreshew & Ors [2015] FCCA 3315, where the applicant sought an extension of time on the basis that he had been diagnosed with depression and anxiety. The Court found that those conditions did not satisfactorily explain the applicant’s inability to file on time and rejected the application for an extension of time.
(d)Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, where the applicant filed four days out of time. He had made two failed attempts to file online and found the process confusing. Ultimately, he filed by posting his completed application from NSW to the FWA office in Canberra. It was found that the applicant had made a bona fide attempt to file his application before the 14-day time limit expired. This finding was confirmed when permission to appeal was later refused.
(e)Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, in which the Fair Work Commission clarified the consideration that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances that might excuse a delay in filing.
CONSIDERATION
As noted above, the factors which the Court considers when determining whether to grant an extension of time are not fixed. However, in circumstances where neither party has raised any additional matters for consideration, the Court will address the following factors:
(a)length of the delay and the explanation (including the steps taken to pursue the matter further);
(b)any prejudice which arises for the parties as a result of the delay;
(c)fairness; and
(d)the merits of the application.
Before doing so, I make the observation that insofar as the respondent has sought to rely (by analogy) on decisions of the FWC concerning applications for an extension of time, such applications are determined by reference to s.366(2) of the Act which provides that the FWC may allow a further period [to make a general protections dismissal application] if the FWC is satisfied that there are exceptional circumstances. The language of exceptional circumstances is absent from s.370(a)(ii), which this Court has to consider, so that this requirement does not form part of my analysis.
Length of the delay and explanation
Mr Cacoutas does not in any of his material identify the date on which his originating material was accepted for filing. The Court file records this date as being 31 May 2021. HBO Accounting, in its submissions and affidavit material, identifies the date as 4 April 2021. The identification of this earlier date (instead of 31 May 2021) might be explicable having regard to the fact that the application document and Form 2 that appear on the electronic court file have a hand-written date of “04/04/21”. This means that on the respondent’s case (in opposition to the grant of an extension of time) the length of the delay is 98 days. Whereas, it would appear that in actual fact, as noted at the outset, the delay is in the order of 149 days.
Although there is a not insignificant difference between these two numbers, I do not consider ultimately that it is a discrepancy that needs to be reconciled for the purpose of deciding this application. On the best case for Mr Cacoutas – a delay of 98 days – there is still a substantial period of time that requires explanation and it is to that explanation (or lack therefore) that these reasons are directed.
Turning to that explanation, I accept that Mr Cacoutas took steps initially to file an originating application within the time prescribed by the Act and that this consideration is capable of operating in his favour. However, the difficulty is that after the initial (unsuccessful) attempt was made, and despite the identification by Court staff of the deficiencies in the documents Mr Cacoutas had produced for filing and the provision of a contact person to whom inquiries might reasonably have been directed, there is no evidence before the Court that Mr Cacoutas took any further step to file his application until a further two months had passed (on 2 March 2021). When that attempt also proved unsuccessful, Mr Cacoutas again waited another month (on 6 April 2021) to again attempt to electronically file his application.
In this respect, although Mr Cacoutas makes the submission that he lodged his application within the prescribed time frame, I do not understand him to be saying that he was, at any relevant time, labouring under a false impression that his documents had, in fact, been accepted for filing. To the contrary, his material gives every indication that he was aware that this had not occurred but he instead sought to explain his inaction by reference to, principally, five matters. These being his medical conditions of asthma and obesity and “immense stress”, his trip away to Queensland that ended on 26 January 2021, the impact of Covid on his organisational skills, time spent looking for a new job and time spent caring for and working for his father (between February and April 2021).
HBO Accounting is critical of what it describes as Mr Cacoutas’ non-compliance with orders of the Court and notes that both the first and the second Cacoutas affidavit do not comply with various provisions of the Oaths and Affirmations Act 2018 (Vic) and should be “taken by the Court to be invalid”.
While it is the case that the affidavits filed by Mr Cacoutas are deficient in a number of respects and therefore do not conform to the requirements of rr.15.12 and 15.13 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (“the GFL Rules”), I do not propose, for the purpose of this application to rule on their validity or to exclude from consideration, material that bears on the issues that I need to decide. This recognises the status of Mr Cacoutas as a self-represented litigant, the fact that on questions of delay HBO Accounting does not seek to impugn the veracity of Mr Cacoutas’ explanations (but instead, challenges their adequacy) and because, to the extent that the material goes to the substance and merits of Mr Cacoutas’ case, this is a matter that I propose to assess on an impressionistic basis. It is also the case that the Court has the power, under r.1.07 of the GFL Rules, to dispense, in the interests of justice, with compliance with any of the Rules and must act consistently with the overarching purpose (set out in r. 1.04) to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Having said all of this and accepting Mr Cacoutas’ various explanations as far as they go, I am not satisfied that they adequately explain the substantial periods of inertia between taking what might be characterised as modest steps to file and progress his application. The explanations are given in general terms, unsupported by medical evidence, lacking in any detail as to the impact they created on Mr Cacoutas’ ability to file his application and fail to create the impression of an individual who, at relevant times, was prosecuting his case with any degree of tenacity or diligence.
Relatedly, I do not consider that Mr Cacoutas has, outside of the jurisdiction and procedures established by the Act, conducted himself in a way that, through the period of the delay, demonstrated that the decision to terminate his employment was actively contested. If this consideration is understood (at least in part) to recognise the ameliorative impact of such actions on a proposed respondent, the evidence of Mr Orlanski indicates that once the prescribed time for filing had passed, HBO Accounting understood that Mr Cacoutas no longer intended to pursue it in relation to his dismissal.
In these circumstances, I consider that the length of delay and explanation weigh against the granting of an extension of time.
Prejudice
Although Mr Orlanski deposes that HBO Accounting has been prejudiced by the way that the matter has now been put and would be prejudiced if the Court was to grant Mr Cacoutas an extension of time, I do not consider that HBO Accounting has identified any real prejudice – beyond that which occurs inevitably as the result of being a respondent to litigation – that would accrue in the event that an extension of time was granted. I however acknowledge that the absence of prejudice does not supply a powerful reason, in and of itself, to extend time. It is a factor that weighs, modestly, in favour of granting an extension of time in this case.
Fairness
Neither party has identified any person who is in a similar position to that of the applicant. In those circumstances, there is no issue of unfairness between the applicant and such persons if an order were to be made extending the time by which the applicant may make a general protections court application.
However, Mr Cacoutas alleges, amongst other things, that there is a breach of s.340 of the Act. This, if established, would represent a contravention of the Act to which pecuniary penalties apply. There is a public interest in ensuring that any breach of the Act is properly identified and, if appropriate, sanctioned. The public interest weighs in favour of granting an extension of time.
Merits
Often, the merits of an application are a determinative factor in deciding whether an extension of time should be granted. It would be futile to grant an extension if an application was assessed as having no reasonable prospect of success.
The Court is bound, particularly where litigants represent themselves, to look at the substance of the claims made and to approach the assessment of the merits of the case from a “reasonably impressionistic level”. This is the approach that I have adopted.
In his Form 2, Mr Cacoutas alleges that he was terminated over text message on Thursday 5th November 2020 during the evening after his workshift without any reason given besides “covid 19 making it difficult for all”. He alleges further that he was told in a meeting on 6 November 2020 by Mr Ben Orlanski that he was terminated because he was not the mentor Ben was looking for.
The case for Mr Cacoutas is further particularised in the document described as outline of submissions that was filed on 10 September 2021. In this document, Mr Cacoutas states (in part) as follows:
I john Cacoutas was terminated by Ben Orlanski of HBO Accounting Pty Ltd for reasons that breach section 352 and section 351 of the Fair Work Act and evidently adverse action in the form of discrimination and coercion was committed against myself directly as a result of myself exercising a workplace right.
One of the reasons behind terminating myself was due to myself being taking sick leave and being temporarily absent from work due to being sick on October 27 and October 28 2020.
A second reason for my termination was myself exercising my workplace right to inquire about my pay review as stipulated in the employment agreement between HBO Accounting Pty Ltd and myself which is effectively a workplace instrument, concerning the relationship between HBO Accounting Pty Ltd and myself.
Another contributing factor to my termination was my medical issues, specifically as I was diagnosed with obesity and to which Ben made comments to myself which left me with the impression that he had a problem with my weight.
I was away sick on October 27 and 28…and I was given 3 days to be absent from work by my medical General Practitioner. I was unduly made to work by my co-workers on October 28 with the intention that I assist in completing a job that was not initially under my purview of allocated work in progress…despite myself notifying HBO Accounting Pty Ltd that I would be taking October 27 and October 28 off for sick leave. I was also excluded from returning to work at the office where every other staff member was allowed back. On the balance of probabilities, taking sick leave and presenting my injured head to Ben was a reason for my termination especially supported by Ben’s later statement where he accuses me of being under the influence of alcohol.
On Wednesday the 4th November during the meeting with Ben Orlanski in his office, part way through the meeting I expressed that I would like to request a pay review as per our employment agreement…Ben had expressed his disapproval with my performance and his stance to be more so reluctant to give me a pay increase with comments that were unwarranted and unprofessional. I argue that requesting the pay review was connected to the event of Henry Orlanski later that day conducting adverse action against myself…who similarly challenged my competence and performance and issued myself an official warning…..there is an explicit term within my employment agreement granting myself a pay review after 3 months employment and my inquiry to this was a major cause of my termination just the next day after my inquiry…and due to making a complaint to Ben about Henry.
I complained to Ben Orlanski immediately after Henry Orlanski made his second appearance in my office…to which I was scolded…
Ben’s position about my weight issue, as evidenced by stressing for me to make a plan to lose weight and explaining that it will “affect me socially”…during the same morning meeting on Wednesday the 4th November 2020 where I had asked for a pay review, led myself to understand that he had a problem with my weight. As I told him that during time at home my asthma had become severe it was clear that both the asthma and weight were interconnected as medical issues and being away sick in the week prior, would have raised concerns with Ben of my future performance and attendance.
In HBO Accounting Pty Ltd’s responses to my original court application as noted by Ben Orlanski, he has raised issues with my appearance as well as my scent. I argue that his issue with my appearance did relate to my weight and my clothes worn which were not entirely upgraded after my weight gain, considering that I had put on about 12 kilograms since I had last seen Ben.
Ben has admitted in his response to my original fair work application that the encounter between Henry and myself led to Ben and Henry resolving to terminate myself after they had consulted with one another…
In a series of what are described as “witness statement 1.1”, “witness statement 1.2” and “witness statement 1.3” that were attached to the first Cacoutas affidavit, Mr Cacoutas provides further detail that relevantly includes:
(a)On the morning of 27 October 2021, Mr Cacoutas texted Ben Orlanski to inform him that he had fallen sick and after seeing his general practitioner that morning, he then proceeded to get tested for Covid-19. Mr Cacoutas was aware that he could not return to the office until he was cleared as negative for Covid-19 and he was notified on Wednesday night October 28 that he was negative to COVID-19. However, despite being cleared, Ben Orlanski had already made it clear by text message at 1.15 pm that because Mr Cacoutas was “not well” he couldn’t attend the office but Ben Orlanski still expected him to work even under the impression that he was still sick.
(b)On Sunday night at 7.05 pm Ben Orlanski notified Mr Cacoutas that he did not want him in the office on Monday because he “may still have a cold” and he assumed that Ben Orlanski thought that he could have been a risk to other staff members, despite being cleared of Covid-19. Mr Cacoutas states that he was being discriminated against by being excluded from coming back to work when he wasn’t sick anymore and every other staff member was allowed to return.
(c)Also, Ben Orlandski’s tone towards him had changed significantly in a way after he took time off sick.
(d)On 4 November 2020 when Mr Cacoutas returned to work, Ben Orlanski asked him to come in for a meeting during which he raised some facts about Mr Cacoutas’ performance from home saying that he was “unresponsive on Microsoft teams” and “out of everyone at the firm you were the worst in performing” in terms of completed work. Mr Cacoutas questioned this but did answer to Ben that “there were times where I responded to staff members later in the day but there were staff members who mostly did not reply to my Microsoft teams messages or SMS messages at all”.
(e)Ben raised the topic of Mr Cacoutas’ weight. In this context, Mr Cacoutas explained that he had been diagnosed with obesity and also that his condition as an asthmatic had deteriorated in the past six months. Ben questioned if he was going to follow an action plan to lose weight and concluded by saying that because of Mr Cacoutas’ weight “you are going to be affected socially”. Mr Cacoutas considered at this point that it appeared that Ben had an issue with his condition of obesity.
(f)When Mr Cacoutas requested a pay review (in the same meeting), Ben looked at him disapprovingly and immediately said “do you think you deserve one?”. Mr Cacoutas replied by stating that he did and was looking to receive $3,000 per annum. Ben told Mr Cacoutas that he would come back to him about the subject.
(g)In the afternoon of 4 November 2020, Henry Orlanski came into Mr Cacoutas’ office and spoke aggressively to Mr Cacoutas about his work on an audit query. Mr Orlanski returned about 35 minutes later and again spoke aggressively to Mr Cacoutas about his work.
(h)In the context of this exchange, Mr Cacoutas told Mr Henry Orlanski that “he needs to be careful with how he speaks to me”. In response, Henry Orlanksi said, “Excuse me, you can’t tell me that” to which Mr Cacoutas replied by saying, “I can when you are acting rude”. Mr Orlanski explained to Mr Cacoutas that due to what he had said to him (Mr Orlanski), his criticism constituted an official warning. Mr Orlanski advised Mr Cacoutas that he would put the warning in writing. It is Mr Cacoutas’ contention that during this exchange he was speaking assertively, whilst Henry Orlanski was speaking aggressively and displaying ‘rude body language’ including ‘standing over’ Mr Cacoutas.
(i)Mr Cacoutas then went immediately to Ben Orlanski’s office and explained to him the details of the encounter with Henry Orlanski, to which Ben Orlanski said he would speak to Henry Orlanski and get back to him.
HBO Accounting’s response to the merits of Mr Cacoutas’ claim is primarily contained in the affidavit of Ben Orlanski in which he states, relevantly, that:
(a)Mr Cacoutas was employed by HBO Accounting as a senior accountant on 29 June 2020.
(b)On 5 November 2020, Mr Orlanski made the decision to terminate Mr Cacoutas’ employment and held a meeting with Mr Cacoutas the next day to give effect to that decision.
(c)On 6 November 2020, Mr Orslanski informed Mr Cacoutas of the various issues that had been found with his performance and his behaviour, that he had failed to meet necessary standards and that he had acted in a consistently unprofessional manner. At the conclusion of that meeting, he terminated Mr Cacoutas’ employment.
(d)Mr Orlanski believed that it was lawful and reasonable to terminate Mr Cacoutas’ employment at the time, as a result of his consistent poor performance, his repeated failures to meet standards or professionalism, and his recurring abusive outbursts that were directed towards other employees of HBO Accounting and to Mr Orlanski.
(e)There were no other reasons underpinning Mr Orlanski’s decision to terminate Mr Cacoutas’ employment.
In its written submission (rather than in evidence), HBO Accounting identifies, with greater particularity, the “reasons for dismissal” as being:
(a)On 28 September 2020, Mr Cacoutas displayed unacceptable and unprofessional behaviour during a work call with Mr Brian Chong, in which he began to yell and use profane language;
(b)Mr Cacoutas’ repeated listings of 1-hour periods (or more) on his time sheets for ‘technical issues’ which was unusual and without explanation;
(c)Mr Cacoutas’ repeated failure to be online during expected work hours between 9 am and 10 am while working from home;
(d)On 30 October 2020, Mr Cacoutas displayed unacceptable and unprofessional behaviour during a work call with Ms Sophie Zhu, in which he began to yell and use profane language;
(e)On 4 November 2020, Mr Cacoutas arrived at the office with unacceptable presentation and scent;
(f)Mr Cacoutas failed to meet expected performance standards while he was working from home, particularly in comparison to other workers in similar roles;
(g)Mr Cacoutas’ delays with particular work caused clients to repeatedly complain to the respondent;
(h)Also on 4 November 2020, Mr Cacoutas behaved in an unacceptable and unprofessional manner towards Mr Henry Orlanski (Partner), becoming aggressive and abusive towards him without provocation.
Mr Cacoutas largely denies that he engaged in the behaviours identified at [35] above and/or that they were not, at the time they were alleged to have occurred, raised with him.
Consideration of the merits
Section 340(1)
Subsection 340(1) of the Act relevantly provides that a person must not take ‘adverse action against another person….because the other person….has exercised a workplace right’. Three matters must be established before a person will be held to have contravened s.340 of the Act. First, the person has taken ‘adverse action against another person’. That expression is defined in a table contained in s.342(1) of the Act which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purpose of this application, the relevant person who must take the adverse action is ‘an employer’, and the person against whom the employer takes the adverse action must be ‘an employee’; and the employer takes ‘adverse action’ if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
It is not in dispute that HBO Accounting took adverse action against Mr Cacoutas when it terminated his employment on 5 or 6 November 2020.
The second matter that must be established before a person can be found to have contravened s.340 of the Act is that the employee against whom the employer has taken adverse action has, among other things, exercised a ‘workplace right’. Under s.341(1)(c)(ii) of the Act a person has a ‘workplace right’ if, among other things, the person, being an employee, ‘is able to make a complaint or inquiry in relation to his or her employment’. In this respect, it is not in dispute that during the meeting between Mr Cacoutas and Mr Ben Orlanski that took place on 4 November 2020, Mr Cacoutas inquired, in relation to his employment, about a pay review.
The third matter that must be proved to establish a contravention of s.340 of the Act is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason (s.360). Where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be an ‘operative or immediate reason for the action’: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [140] (Heydon J).
The evidence of the decision-maker, Mr Ben Orlanski, is that the decision to terminate Mr Cacoutas’ employment was actuated by a range of performance and behaviour-based considerations and did not include any other reasons, including, any proscribed reasons. Mr Cacoutas disputes this and contends instead that his inquiry about a pay review was a major cause of his termination that occurred just the next day. Mr Cacoutas therefore asks the Court to infer that the proximity between the exercise of the workplace right and the adverse action establishes the necessary relationship.
It might well be that when Mr Ben Orlanski’s evidence is tested at trial, his explanation as to the reason for dismissal withstands scrutiny and the “reverse onus” imposed on HBO Accounting by s.361 of the Act, is discharged. However, and recognising that the proximity of the dismissal to the making of the inquiry might not be direct evidence of the alleged adverse action, when viewed in conjunction with the peremptory nature of the dismissal and the limited prior identification to Mr Cacoutas of issues that were said to inform that decision, it might arguably allow an inference to be drawn from those facts that it was the exercise of the workplace right (amongst other considerations) that gave rise to the dismissal. Whether the evidence gives rise to a reasonable and definite inference, and not merely to conflicting inferences of equal degrees of probability, or mere conjecture, is a matter which might be developed further at hearing when all of the evidence is in. For present purposes, however, the matters set out above might arguably give rise to such an inference. This is not to say that Mr Cacoutas will succeed at final hearing but rather that on a reasonably impressionistic examination of his case, he has identified an arguable ground. This weighs in favour of an extension of time within which to file the substantive application.
CONCLUSION
This matter is finely balanced. On the one hand, I have found that the length of delay and explanation weigh against the granting of an extension of time. On the other side of the ledger, the question of prejudice and considerations of fairness and the merits of the proposed case, weigh in favour of an abridgement. Taking all considerations into account, I am positively satisfied that the time for filing a general protections court application should be extended.
Accordingly, there will be an order extending the time to commence proceedings in the Court until the date of filing.
Noting that HBO Accounting has not filed a response, an order will be made requiring it to do so within 14 days.
The matter will be referred to mediation as is the usual course for matters of this sort.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 26 November 2021
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