Chand v Soft Star Pty Ltd
[2016] FCCA 121
•29 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAND v SOFT STAR PTY LTD | [2016] FCCA 121 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case seeking extension of time for filing of application – factors for consideration – difficulties with recently introduced electronic court filing. INDUSTRIAL LAW – Dismissal from employment in contravention of general protections provisions of the Fair Work Act 2009 (Cth) – whether dismissal of employment due to redundancy – application filed out of time – application in a case seeking extension of time for filing of application. EMPLOYMENT – Employment visa – contract of employment – claim for loss of earnings for reminder of period of four year employment visa. MIGRATION – Employment visa – sponsorship by employer – claim for loss of earnings for remainder of period of four year employment visa. |
| Legislation: Fair Work Act 2009 (Cth), ss.340(1)(a)(ii), 342, 361, 365, 368, 370, 570 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 2.04, 2.07, 13.04, 21.02, 45.06 |
| Abigroup Contractors Pty Ltd v Carnegie [2013] FCCA 1099 Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551 Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281; (2006) 33 WAR 82 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28; (2010) 62 AILR 101-129 Hanssen Pty Ltd v Jones [2009] FCA 192; (2009) 179 IR 57 Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 In the marriage of Locke & Locke [1993] FLC 92-352; (1992) 112 FLR 238; (1992) 16 Fam LR 336 Jimenea v Dynamic Supplies Pty Ltd [2013] FCCA 63 Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395; (1985) 67 ALR 652 Owen v Cudeco Ltd [2013] FCCA 1827 Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671 Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327 Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 |
| Applicant: | SUREN CHAND |
| Respondent: | SOFT STAR PTY LTD T/A CHRISTMAS ISLAND RESORT |
| File Number: | PEG 425 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 10 April 2015 |
| Date of Last Submission: | 10 April 2015 |
| Delivered at: | Perth (by telephone link to Christmas Island) |
| Delivered on: | 29 January 2016 |
REPRESENTATION
| For the Applicant: | Mr G Thomson |
| Union for the Applicant: | Union of Christmas Island Workers |
| Counsel for the Respondent: | Ms B Robinson |
| Solicitors for the Respondent: | Allion Legal |
ORDERS
The applicant’s Application in a Case filed 18 March 2015 be granted, and pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the time for filing of the Application initiating these proceedings be extended to the time of filing on 30 December 2014.
The parties to confer within 7 days as to future directions and programming of the Application.
Matter be adjourned to 9.30am on 11 February 2016 for further directions, with liberty to the applicant to appear by telephone.
Any Application in a Case for the costs of the applicant’s Application in a Case filed 18 March 2015 must be filed, together with any supporting affidavit, by 5 February 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 425 OF 2014
| SUREN CHAND |
Applicant
And
| SOFT STAR PTY LTD T/A CHRISTMAS ISLAND RESORT |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment relate to an Application in a Case for an extension of time by the applicant, Suren Chand (“Mr Chand”), in which to file his Application in these proceedings under the Fair Work Act 2009 (Cth) (“FW Act”) against the respondent, Soft Star Pty Ltd T/A Christmas Island Resort (“Soft Star” and “Resort” respectively).
Application
On 30 December 2014 Mr Chand filed the Application under the FW Act alleging dismissal from employment with Soft Star in contravention of a general protection as set out in his “Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (“Claim Form” which together with the Application will be referred to below as the “Application”). Mr Chand claims the sum of $280,800 by way of loss of earnings for the remaining three year period of an employment visa seemingly sponsored by Soft Star.
The Application alleges that:
a)on 31 October 2014 Mr Chand was told by his manager, Michael Asims (“Mr Asims”), that he was not required anymore and that he would finish work on Friday 31 October 2014 and that the decision to terminate Mr Chand’s employment was made by Mr Kwon the owner of Soft Star;
b)Mr Asims told Mr Chand he would finish work on 31 October 2014 and leave Christmas Island on the following day, 1 November 2014. Mr Asims gave Mr Chand an airline ticket to depart Christmas Island on Saturday 1 November 2014. The air ticket included flights from Christmas Island to Perth, and on to Melbourne and Fiji;
c)on the day prior to Mr Chand’s dismissal, 30 October 2014, Soft Star, Mr Kwon and Mr Chand had signed and executed a Deed of Release (“Deed of Release”) in settlement of a claim against Soft Star for underpayment of wages made by the Union of Christmas Island Workers (“Union”) on behalf of Mr Chand. Soft Star agreed to pay the amount of $36,345.15 in back wages for the period of 9 October 2013 to 9 October 2014;
d)Mr Chand has not obtained employment since his dismissal. Mr Chand requires employment to satisfy the terms of his employment visa for work in Australia. If Mr Chand does not find an alternative sponsor employer within three months of the termination of his employment with Soft Star, he will not be able to work in Australia; and
e)from the commencement of his employment on 9 October 2013 Mr Chand was entitled to, but was denied, the workplace right to be paid in accordance with the industrial instrument applying to his work and the law regarding the appropriate level of remuneration to satisfy requirements for the issuance of the employment visa to Mr Chand and the operation of Soft Star as a sponsor employer under the Department of Immigration and Border Protection’s (“Department”) sponsored worker arrangements. In exercising his workplace right to obtain redress for underpayment of wages Mr Chand was successful in obtaining back-pay. It is asserted that the exercise of that workplace right to be paid properly led directly to his dismissal the day after settlement of the underpayment claim. It is asserted that Mr Chand was dismissed because the Union acted for him in making the claim for back-pay.
Response
Soft Star filed a Response on 15 January 2015:
a)alleging that the Application was made out of time, and noting that:
i)section 370(a)(ii) of the FW Act requires a general protections court application to be made within 14 days after the day a certificate is issued by the Fair Work Commission (“FWC”) under s.368 of the FW Act (“Section 368 Certificate”), or within such period as the Court allows on an application made during or after those 14 days;
ii)the Section 368 Certificate was issued on 10 December 2014;
iii)the Application was filed on 30 December 2014, 20 days after the Section 368 Certificate was issued;
iv)the Application was required to be filed on or before 24 December 2014 to be made in time; and
v)no extension of time has been granted by the Court for the filing of the Application out of time; and
b)seeking an order that the Application be dismissed as being made out of time.
Orders made
At the first directions hearing on 4 March 2015 the Court made the following orders:
1. The applicant file and serve:
a. an application in a case seeking an extension of time for filing of the application;
b. any affidavit in support of the application in a case; and
c. an outline of submissions;
by 18 March 2015.
2. The respondent file and serve:
a. any affidavits in opposition to the application in a case; and
b. an outline of submissions;
by 1 April 2015.
3. The applicant’s application in a case be listed for hearing at 1.30pm on 10 April 2015, with leave granted to the applicant to appear by telephone.
4. Costs of today, if any, be reserved.
Application in a Case
Orders sought
On 18 March 2015 Mr Chand filed an Application in a Case in accordance with the Court’s orders of 4 March 2015, and sought the following orders:
1. The application for extension of time for filing of the Application - Fair Work Division on behalf of Mr Suren Chand, the Applicant, in matter PEG425/2014, is granted.
2. That the time for the filing of the application be extended to 30 December 2014.
3. That the matter be listed for hearing.
Affidavit in support
The Application in a Case is supported by an affidavit made by the Secretary of the Union, Gordon Thomson (“Mr Thomson”) sworn on 18 March 2015 and filed the same day (“Mr Thomson’s Affidavit”) which states:
1. I am the single full time official of the Union of Christmas Island Workers and the person responsible for representing all members, including the making of applications to industrial tribunals.
2. I made the substantive application-APPLICATION- Fair Work Division (filed with Form 2) Suren Chand v Soft Star Pty Ltd, in the Federal Circuit Court of Australia- Perth Registry, on behalf of the Applicant Suren Chand.
3. I represented Suren Chand (Applicant), a Fiji national in a dispute he had with Soft Star Pty Ltd over underpayment of his wages.
4. Soft Star Pty Ltd (Respondent) employed the Applicant as a plumber at the Christmas Island Resort under a sub-class 457 Visa.
5. On 30 October 2014 the Respondent agreed to settle the dispute by making good the underpayment of the Applicant’s wages in the sum of $36,345.15.
6. I am informed by the Applicant and believe that on 31 October 2014 Mr Michael Asims, Manager Christmas Island Resort told the Applicant that Mr David Kwon, Director of the Respondent, had decided that the Applicant was not required anymore.
7. I am informed by the Applicant and believe that on 31 October 2014 Mr Asims gave him an airline ticket for flights from Christmas Island to Perth, Perth to Melbourne and Melbourne to Fiji and told the Applicant he would leave the Island on the following day, 1 November 2014.
8. At no stage during my negotiations to resolve the dispute with Mr Asims on behalf of the Respondent over the underpayment of the Applicant’s wages was there any suggestion that the Respondent no longer required the Applicant’s services as a plumber or otherwise.
9. I made the substantive application -APPLICATION- Fair Work Division (Filed with Form 2) Suren Chand v Soft Star Pty Ltd, in the Federal Circuit Court of Australia - Perth Registry, on behalf of the Applicant Suren Chand.
10. On 10 December 2014 Fair Work Commission Deputy President Kovacic issued a CERTIFICATE UNDER SECTION 368 in relation to Mr Chand’s Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal. The Applicant was advised that a general protections court application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order should be made within 14 days of the date of the certificate, unless the court extends the time for making such an application.
11. Immediately upon receipt of the certificate, 10 December 2014, the Applicant, Mr Suren Chand, requested the union make the application to the Court. The 14 day period for the making of the application ended on 24 December 2014.
12. I prepared the application and upon receiving advice about lodgement of the application I registered with the Court’s eLodgment service. On 24 December 2014 I received an email notice from eLodgement [email protected] stating that registration of the UCIW was approved.
13. I entered the eLodgment domain on 24 December 2014. Due to difficulties encountered I telephoned the Perth Registry of the Court. I was coached through the eLodgment process by a Registry staff member. The application was lodged. However I received an email from the registry advising me that this first application was "pended". I telephoned the Registry as directed in the email. I was advised the application was " pended" because I had not completed the section " Registry". Because of the difficulties I had experienced in the eLodgment process I suggested that I make the application by fax. I was encouraged to persist with the eLodgment process. I duly inserted Perth in registry section and resubmitted the application.
14. I then received an email stating that the resubmitted application was " rejected" and I should contact the registry by telephone. I did so but the registry was closed. For the next four days, Christmas Day, Boxing Day and the weekend of 27 and 28 December the Registry was closed.
15. On Monday 29 December 2014 I telephoned the Registry to establish the reason for rejection of the application on 24 December. I was informed that the eLodgment application incorrectly stated the " document type". I corrected that mistake and resubmitted the application. Again the application was rejected.
16. On Tuesday 30 December a further application was finally accepted.
Affidavits in opposition
Affidavits in opposition to Mr Chand’s Application in a Case were filed by:
a)Mr Kwon, the General Manager of Soft Star, sworn 7 April 2015 (“Mr Kwon’s Affidavit”); and
b)Mr Asims, the Manager of the Resort, which is seemingly a trading entity of Soft Star, sworn 1 April 2015 (“Mr Asims’ Affidavit”).
Mr Kwon’s Affidavit and Mr Asims’ Affidavit assert that:
a)Soft Star is the operator of the Resort based on Christmas Island: Mr Kwon’s Affidavit at [1]; Mr Asims’ Affidavit at [1]-[2];
b)Soft Star’s primary business has been providing long term accommodation to the Department (“the Contract”). Soft Star has minimal private guests: Mr Kwon’s Affidavit at [3]; Mr Asims’ Affidavit at [4];
c)Mr Chand was employed by Soft Star from 9 October 2013 to 31 October 2014: Mr Kwon’s Affidavit at [6] and [9]; Mr Asims’ Affidavit at [3] and [7];
d)Mr Chand’s employment ended due to his position becoming redundant as a result of a reduction in headcount at Soft Star’s operations: Mr Kwon’s Affidavit at [9] and [12]; Mr Asims’ Affidavit at [7]-[11];
e)between Mr Chand commencing employment and when his position became redundant, staffing levels had been reduced by 20%, from 30 people to 24: Mr Kwon’s Affidavit at [10];
f)since Mr Chand’s employment ended there have been further significant reductions in staffing levels : Mr Kwon’s Affidavit at [10]; Mr Asims’ Affidavit at [9];
g)the reduction in headcount was and continues to be a result of economic reasons, including a substantial drop in business levels and the impending loss of the Contract with the Department: Mr Kwon’s Affidavit at [5]-[12]; Mr Asims’ Affidavit at [4]-[11];
h)in October 2013 when Mr Chand commenced employment, occupancy levels at the Resort were 97%: Mr Kwon’s Affidavit at [11];
i)in October 2014, when Mr Chand’s position became redundant, occupancy levels had reduced to 53%: Mr Kwon’s Affidavit at [7];
j)on 8 February 2015, the Contract expired and occupancy would be 0%: Mr Kwon’s Affidavit at [11]; Mr Asims’ Affidavit at [10];
k)Mr Chand’s position became redundant due to the outlined drop in business levels and resulted in the ending of Mr Chand’s employment: Mr Kwon’s Affidavit at [12]; Mr Asims’ Affidavit at [11];
l)there were issues with respect to payments to Mr Chand but these were resolved in good faith when they were raised and were unrelated to the decision to make Mr Chand redundant which was treated as a separate process: Mr Kwon’s Affidavit at [13];
m)Mr Asims recalled speaking to Mr Thomson by telephone on or around 3 December 2014 following the unsuccessful FWC conference: Mr Asims’ Affidavit at [12]; and
n)during the telephone call with Mr Thomson on 3 December 2014 Mr Asims says that Mr Thomson told him that he would be away from Christmas Island later in the month including over the Christmas period, and that he was going to attend his daughter’s wedding in Perth and then go on holiday, and Mr Asims understood from this conversation that Mr Thomson was not at work on Christmas Island on 24 December 2014: Mr Asims’ Affidavit at [13].
Consideration
Legislation
Section 370 of the FW Act provides as follows:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Substantively, Mr Chand relies upon s.340(1) of the FW Act which provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
For the purposes of s.340(1) of the FW Act adverse action taken by an employer against an employee includes the dismissal of the employee: FW Act, s.342(1), Item 1.
In relation to substantive rights the reason for taking action stated in an application is to be presumed unless proved otherwise in relation to the alleged contravention, by reason of s.361(1) of the FW Act which is in the following terms:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Principles
There is no doubt that it is for the applicant to satisfy the Court that an extension of time is appropriate, and for that onus to be discharged in the context of a relatively short limitation period of 14 days fixed by the Parliament in s.370(a)(ii) of the FW Act: Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [5] per White J (“Youth Council”).
In each of Jimenea v Dynamic Supplies Pty Ltd [2013] FCCA 63 (“Jimenea”) and Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 (“Henshall”) (which are cited in Mr Chand’s submissions) reference is made to the principles or considerations relevant to the granting of an extension of time as outlined in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (“Brodie-Hanns”). In Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327 (“School Bus Contractors”) the Federal Magistrates Court found that the Brodie-Hanns principles were not binding upon the Federal Magistrates Court (and thus the Federal Circuit Court as its successor), but had been regularly applied, and do constitute a relevant criteria to be considered, and were therefore to be used as non-binding but guiding criteria on an application for an extension of time in which to file an application under the FW Act: School Bus Contractors at [37] per Lucev FM, followed in Owen v Cudeco Ltd [2013] FCCA 1827 at [7] per Judge Driver and Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [34] per Judge Lucev (“One Key Resources”), and referred to without disapproval in Youth Council at [5] per White J.
In Brodie-Hanns the criteria for consideration are stated as follows:
1. 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.
2. 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.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
Brodie-Hanns at 299-300 per Marshall J.
Explanation of delay
Mr Chand’s submissions
Mr Chand submitted that:
a)an acceptable explanation of the delay makes it equitable to extend;
b)in this case the efforts to lodge the Application on time are evidenced in Mr Thomson’s Affidavit;
c)the electronic lodgement system is implicated in the delay;
d)although the Application was refused on two days, 24 December 2014 and the next working day Monday 29 December 2014, the Application was not made out of time because of any deficiency in the documents lodged;
e)the Application was not varied except on the first occasion of lodgement which was pended to allow the Application to be re-submitted with the word “Perth” added to identify the Registry at which the Application was lodged;
f)the Application, as then amended, was lodged in time on 24 December 2014; and
g)had the Application as amended been lodged by fax the causes of the delay in lodgement would have been avoided, and the lodgement would have occurred on time.
Soft Star’s submissions
Soft Star submits that there was not an acceptable reason for the delay in filing the Application, and says that:
a)the starting position for an out-of-time application is that the time limit should be complied with unless there is an acceptable explanation for the delay;
b)the explanation for the delay given on behalf of Mr Chand appears to be Mr Thomson’s issues experienced with the e-lodgement system, but that this is not borne out by Mr Thomson’s evidence which does not provide an acceptable reason for the delay because:
i)Mr Thomson did not attempt to file the Application until 24 December 2014, the last day for filing;
ii)the initial rejection of the Application was due to a failure to complete the prescribed form correctly, and was not an issue with the e-filing system;
iii)the second rejection of the Application was again due to user error and not a fault in the e-filing system;
iv)Mr Thomson was aware that a failure to file the Application would result in the Application being out of time;
v)Mr Thomson was aware that the Application could be filed by facsimile, and this option was open to him, but he elected not to exercise this option;
vi)Mr Thomson did not file the Application on 24 December 2014, and his attempts to file the Application again on 29 December 2014 were rejected on the basis of user error;
vii)the second attempt to file the Application on 29 December 2014 was rejected, and Mr Thomson provides no explanation as to why the rejection occurred on this occasion; and
viii)the Application was successfully filed on 30 December 2014;
c)the evidence does not reveal an acceptable reason for the delay in filing the Application and complying with the time limit imposed by s.370(a)(ii) of the FW Act, in circumstances where:
i)Mr Thomson was well aware of the time limit and states he had instructions on 10 December 2014 to lodge the Application;
ii)Mr Thomson was a full-time official of the Union, and was responsible for the making of applications, and was aware of the methods available for filing documents with the Court and the time limit for the filing of the Application; and
iii)Mr Thomson elected to leave the filing of the Application to 24 December 2014, the last day for filing. The difficulties encountered by Mr Thomson due to this election should weigh against a conclusion that the reason for the delay was acceptable: Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671 at [37] per Judge Jones (“Potts”);
d)Mr Asims’ evidence raises the question as to whether Mr Thomson was on leave the day the Application was due to be filed, but there is currently no documentary evidence before the Court allowing an assessment as to what, if any, effect this may have had on the reasons for the delay in filing the Application;
e)Mr Thomson’s evidence in relation to the e-lodgement system as being the reason for the delay does not, in light of the difficulties experienced by Mr Thomson, disclose an issue with the e-lodgement system as Mr Thomson suggests;
f)in any event, the Application was knowingly filed out of time in circumstances where the delay in the filing of six days was readily avoidable by:
i)filing the Application prior to 24 December 2014; and
ii)using alternative filing options, such as filing by facsimile, when difficulties were encountered; and
g)further, in the knowledge that the Application was filed out of time, no efforts were made by Mr Thomson to make an application for an extension of time with the filing of the Application, which has resulted in further delay.
Consideration of explanation for delay
There is no dispute that the Application was required to be lodged on 24 December 2014 if it was to be lodged within the time required by s.370(a)(ii) of the FW Act. There is also no doubt that the starting point in a consideration of an extension of time application is that the time limit should be complied with, absent an acceptable explanation for not complying with it: Brodie-Hanns at 299-300 per Marshall J; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per McHugh J.
In this case Soft Star acknowledges that there is a very short delay of some six days. The Court further notes that four of those days were 25 to 28 December 2014, being Christmas Day (Thursday), Boxing Day (Friday) and the Saturday and Sunday which followed. This means that the Application, as finally accepted for filing by the Registry, was accepted for filing on the second working day after it was required to be filed, and in circumstances where there were attempts to file the Application:
a)on the day that it ought to have been filed, namely, 24 December 2014; and
b)on the next working day after it ought to have been filed, namely, 29 December 2014.
The fact that there was no attempt to file prior to the final day for filing is of little or no consequence in the Court’s view. An applicant is entitled to file on any day up to and including the final day for filing, that is, in this case up to 24 December 2014.
The first attempt to file the Application was on 24 December 2014. The undisputed evidence is that the Application was “pended” (that is not rejected), on the first occasion that it was sought to be filed, and that it was explained to Mr Thomson that this was because the name of the Registry in which it was filed, namely, the “Perth” Registry of this Court was not included in the Application. The evidence is that this “omission” was rectified, and the Application re-submitted on 24 December 2014. It was only then that the Application was rejected, not because of the original omission of the Registry name, but seemingly because there was an error in naming the “document type” in the e-lodgement form. The e-lodgement form is no more than an administrative requirement or tool requiring specification of the “document type”, and does not itself form part of this Court’s approved form for the purposes of filing an application, or an application under the FW Act: Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), rr.2.04, 45.06. On the evidence it would appear that the Application was again rejected on 29 December 2014, but subsequently, on 30 December 2014, was accepted, seemingly without any change from the Application which had been rejected the previous day.
It is clear on the evidence that:
a)on 24 December 2014 the Application was initially rejected because it did not nominate the Registry as “Perth”;
b)subsequently on 24 December 2014, and without any prior advice to Mr Thomson, the Application was again rejected because of an incorrect nomination of “document type”;
c)when Mr Thomson became aware of the incorrect document type, which was not until the next working day, being 29 December 2014, that “error” was corrected, but the Application was still rejected; and
d)the Application was accepted the next day without any further changes having been made, when it was re-submitted.
In summary, the Application was pended because it did not nominate Perth as the Registry, and later rejected because an incorrect document type was specified. The Court notes that had these two matters been drawn to Mr Thomson’s attention initially when the Perth Registry omission was raised they both might have been corrected on 24 December 2014.
Throughout the above process there was, on the evidence, no change to the substantive parts of the Application.
Rule 2.04 of the FCC Rules provides that:
(1A) The Chief Judge may approve a form for a provision of these Rules.
(1B) A reference in these Rules to a notice of risk is a reference to Form 1 in Schedule 2.
(1) Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.
(2) A document prepared in the form prescribed for a similar purpose for the Family Court or the Federal Court may be taken to substantially comply with the appropriate form for a proceeding.
(3) However, unless otherwise provided in these Rules, a document to be filed in a proceeding must be headed:
FEDERAL CIRCUIT COURT OF AUSTRALIA
At (Registry).
Rule 45.06 of the FCC Rules provides as follows:
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3‑1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
There is a “Registry header” on the Application – Fair Work Division and the Claim Form, which are both approved forms, respectively as follows:
IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA
REGISTRY: .......
It might be observed that the form of the Registry header for the Application – Fair Work Division and Claim Form, differ slightly from the header provided for in r.2.04(3) of the FCC Rules, and this can be taken (given that both the Application – Fair Work Division and Form 2 are approved forms) to be something “otherwise provided in these Rules” for the purposes of r.2.04(3) of the FCC Rules.
Rule 1.06(1) of the FCC Rules provides that:
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
A provision such as r.1.06(1) of the FCC Rules confers a wide discretion exercisable where there is no apparent injustice and the alleged error can only be one of procedure, and thus enables the Court to do what justice appears to require: Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395; (1985) 67 ALR 652; FCR at 403-404 per McGregor J and 414 per Neaves J; Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28; (2010) 62 AILR 101-129 at [61] per Logan and Flick JJ. Rule 1.06(1) of the FCC Rules is clearly a power which enables the Court to dispense with the requirements of rr.2.04 and 45.06 of the FCC Rules.
The occasion for the exercise of the dispensation power does not presently arise in this matter. It is clear, however, that where an application which fails to include either the header or the name of the Registry, but is otherwise within the jurisdiction of the Court and raises an arguable case, dispensation from such requirements in the FCC Rules would be granted: In the marriage of Locke & Locke [1993] FLC 92-352; (1992) 112 FLR 238; (1992) 16 Fam LR 336 (dispensation with all necessary rules to enable a hearing of the real issue); Abigroup Contractors Pty Ltd v Carnegie [2013] FCCA 1099 (dispensation with a requirement for the inclusion of a penal endorsement in Court orders).
The arguments run by Soft Star, in the Court’s view, fail to have proper regard to the circumstances of the matter. Proper consideration of the procedural irregularities which have arisen by reason of the rigidities of an electronic lodgement scheme might have resulted in significant savings in time, resources and money, in circumstances where the interests of justice are not served by upholding the procedural irregularities relied upon by Soft Star in opposition to Mr Chand’s application to extend time for the filing of the Application: compare Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281; (2006) 33 WAR 82 at [9] per Martin CJ (albeit there in the context of objections to pleadings).
In the above circumstances, and where there was no change to the substance of the Application sought to be filed on 24 December 2014, to countenance the rejection of the Application by refusing to extend time based upon the omission and an error in the e-lodgement form, would represent a triumph of form over substance.
Soft Star submitted that the Application could have been filed by facsimile. There is no doubt that it could have been filed by facsimile: FCC Rules, r.2.07. The evidence is that Mr Thomson was however encouraged by the Registry staff to use the e-lodgement filing system. As the Court pointed out during the course of the hearing the fact that the Registry staff are said to have done so is entirely consistent with the Federal Court’s Practice Notice CM 23 at cl.4.7 which “encourages all court users to lodge any document … in or relating to a proceeding through eLodgement”, noting, as the Court did, the Court’s Registry’s services in Perth are provided by Federal Court Registry staff.
Mr Thomson therefore did what he did at the request of the Registry, and by the time on Christmas Eve that he was aware that the Application had been rejected, the Registry was closed for Christmas. Thus, Mr Thomson could not have filed within time prior to his being aware of the rejection of the Application. Mr Thomson acted in the manner that he did at the request of the Registry staff, and it would be wrong to regard his failure to file the Application by facsimile, especially at a time when the Application had not been rejected, as constituting an unacceptable reason for delay in the filing of the Application.
Soft Star also submits that the consequences of the delay in filing, that is that the Application was not sought to be filed until the last day on which it was able to be filed (absent an extension of time order from the Court) ought to be regarded as unacceptable delay. As indicated above: see [20] above, this ignores the fact that there was an entitlement up until 24 December 2014 to file the Application. Furthermore, steps were taken by Mr Thomson to correct the “omission” pointed out to him by the Registry when the Application was “pended”, but another “error”, which had not been brought to Mr Thomson’s attention by the Registry, seemingly resulted in the Application being rejected. Thus, the opportunity to rectify that “error” was not brought to the attention of Mr Thomson, who was acting on behalf of Mr Chand, until the time for filing the Application had expired. The Court also notes that the “error” was in fact not on or in the Application, but in the electronic lodgement form required to be completed to facilitate filing of the Application, which electronic lodgement form is not itself part of the approved form for the Application.
Soft Star relies upon the judgment of this Court in Potts for the submission that Mr Thomson’s election to leave the filing of the Application to the last day for filing, likewise, the “election” not to file the Application by facsimile, should weigh against a conclusion that the reason for the delay was acceptable.
For reasons already set out above:
a)there was an entitlement to file the Application up until 24 December 2014; and
b)the failure to file by facsimile could not properly be described as an “election” by Mr Thomson. Rather, he was acting as he was requested to do by the Registry, which the Court considers was not an unreasonable course in the circumstances.
In relation to Potts the Court considers that insofar as Potts is relied upon by Soft Star it is distinguishable. In Potts there was no action taken at all by the applicant within the time frame required under s.370(a)(ii) of the FW Act which would possibly have enabled Mr Potts’ application to be filed. Mr Potts did not seek to file his application until four days after time had expired for the filing of his application: Potts at [7] per Judge Jones. Whatever criticism might be made of Mr Thomson’s actions on behalf of Mr Chand on or before 24 December 2014, it remains the case that Mr Thomson sought to file the Application, not once, but twice, on 24 December 2014 and was not successful in doing so. On the next two available days for filing of the Application Mr Thomson again sought to file the Application. By contrast, Mr Potts did nothing by way of seeking to actually file his application until four days after time had expired. For that reason, Potts does not assist Soft Star in its argument that the delay was not acceptably explained in relation to the Application by Mr Chand.
Soft Star also raised a question as to whether Mr Thomson was on leave on the day, or at or around the time, that the Application was able to be filed. In the Court’s view whether or not Mr Thomson was on leave is immaterial: he took steps on 24 December 2014 to file the Application, and subsequently continued to take steps to facilitate the filing of the Application on 29 and 30 December 2014. There is no evidence to indicate that Mr Thomson was actually on annual leave, but even if he was, there is no evidence that it had a material effect in terms of the timing of the filing of the Application.
Soft Star also submits that there has been further delay as a consequence of there being no application for an extension of time filed by Mr Chand until ordered to do so by the Court on 4 March 2015. Once again, the Court is of the view that that is immaterial. The question for the Court is whether or not there was an acceptable explanation for the delay in filing the Application, not the application for an extension of time in which to file the Application.
There is minimal delay in the filing of the Application, it being filed on the second working day after 24 December 2014. Such delay as there is, is in the Court’s view adequately explained by reason of the circumstances in which the Application was sought to be filed on 24 December 2014, and ultimately rejected for filing on that date, but subsequently accepted on 30 December 2014, following further steps taken by Mr Thomson on behalf of Mr Chand to ensure that the Application was accepted for filing. It is fair to observe that part of the reason for the delay appears to have been a nuance of the e-lodgement system in first pending the Application on one basis, and then rejecting it on another which had not been brought to Mr Thomson’s attention prior to the time for filing the Application expiring. In any event, the bases on which the Application was first pended and then rejected as part of the e-lodgement process were so overtly technical that to uphold them would elevate form over substance, particularly bearing in mind that the actual substance of this Application did not change between when it was first sought to be filed and when it was accepted for filing a mere two working days later.
For reasons set out in School Bus Contractors authorities going back for more than a hundred years make it clear that, depending on the particular circumstances of the case, a person who has been dismissed should not be disadvantaged by the error or oversight of their representative, be it a lawyer or a union representative, and that the principle applies not just in workplace relations law but across a wide variety of areas of law: School Bus Contractors at [42]-[67] per Judge Lucev (and cases there cited).
Assuming for present purposes that the actions of Mr Thomson, which are set out above, constitute error or oversight by him in his capacity as Mr Chand’s Union representative, then it is a case in which Mr Chand as applicant is blameless and the delay, such as it is, arises in circumstances where Mr Chand gave clear instructions for the Application to be lodged, and Mr Thomson as Union representative has not been able to carry out those instructions, through no fault of Mr Chand as applicant. No responsibility for the delay in filing the Application can be attributed to Mr Chand: he gave instructions that it be filed by Mr Thomson in his representative capacity, and there is nothing to indicate that Mr Chand should have been on guard to ensure that Mr Thomson carried out those instructions. Even had Mr Chand been on guard it is difficult to see what difference that would have made to the actual circumstances in which the Application was first pended and then rejected on 24 December 2014.
For reasons set out above the nature of the representative error arose in circumstances where the pending and rejection of the Application was so overtly technical that it ameliorates, arguably wholly, but if not wholly, then to a very considerable extent, the degree of severity of the representative error. The nature of the representative error is, in any event, not a serious one, and not one which should give rise to adverse consequences for, or otherwise prejudice, Mr Chand as the applicant. In the circumstances, the Court is of the view that to the extent that the explanation for the delay can also be put down to representative error, it was representative error which has resulted in a very short delay, and representative error which should not prejudice Mr Chand as the applicant.
In all of the above circumstances the Court is of the view that there is an acceptable explanation for the delay in filing the Application which supports the grant of an extension of time.
Whether termination contested
Mr Chand’s submissions
Mr Chand submits that in this case the termination was contested:
a)firstly, on the day of dismissal by telephone conversation between the Union representative, Mr Thomson and Soft Star’s representative, Mr Asims, in which Mr Thomson attempted to persuade Soft Star to rescind the decision to dismiss Mr Chand;
b)secondly, by Mr Thomson’s failed attempts to speak with the owner Mr Kwon;
c)thirdly, in making the application to the FWC and attempting to have Mr Chand re-instated by discussion in the conciliation conference before the FWC; and
d)fourthly, in making the application to this Court.
Soft Star’s submissions
Soft Star submitted that:
a)it was not aware of any evidence demonstrating that Mr Chand took action to contest the termination of his employment, other than his general protections applications made under ss.365 and 370 of the FW Act;
b)there is currently no evidence before the Court as to the steps taken by Mr Chand, aside from bringing the claim to dispute the dismissal; and
c)there is no evidence from Mr Chand as to:
i)the steps he took to ensure that the Application was filed on time; and
ii)any proactive steps to seek an extension of time to file the Application, despite Mr Thomson being aware it was filed out of time.
Consideration of whether termination contested
The utilisation of the statutory mechanism established under the FW Act to contest a dismissal in the FWC under s.365 of the FW Act is sufficient to show that a person has taken action otherwise to contest their dismissal: School Bus Contractors at [68]-[77] per Lucev FM; Henshall at [21] per Judge O’Sullivan.
As in School Bus Contractors, where the legislative history of the relevant provisions are set out, making an application under s.365 of the FW Act to the FWC suffices for Mr Chand to establish that he has taken action otherwise to contest his dismissal by making the application under s.365 of the FW Act to the FWC. That fact of the application under s.365 of the FW Act is not in doubt, and therefore the fact that the termination has otherwise been contested by Mr Chand supports the grant of an extension of time.
Fairness
Mr Chand’s submissions
Mr Chand submits that:
a)in Jimenea and Henshall each of the applicants was granted an extension of time where there were like positions with respect to negotiating the lodgement process;
b)in this case the Application was finally accepted two (working) days after the due date for lodgement, and the extension of time sought in this Application is two days compared with the 28 days and 21 days respectively in Jimenea and Henshall; and
c)the likeness has to do with reasons for the delay in lodgement: namely, the system or process that must be followed when lodging an application.
Soft Star’s submissions
In relation to fairness Soft Star submits that:
a)the exercise of a discretion to extend time for filing of a document necessarily turns on its own facts, and Soft Star is unaware of any sufficiently similar factual cases to provide a comparison for the Court;
b)whilst there are numerous cases where representatives have made errors in respect of filing dates, these errors are usually the result of inadvertence by the representative or self-represented applicant, and can be distinguished from this matter where the date for filing was known, recognised and not met by choice;
c)Mr Chand has not demonstrated any urgency or initiative in seeking an extension of time, only filing an extension of time 77 days after filing the Application and 84 days after the Application was due to be filed; and
d)if Mr Chand was not already on notice that the Application was out of time, a finding inconsistent with the evidence of Mr Thomson, Mr Chand should have been on notice from 15 January 2015, when Soft Star filed their Response noting the issue. There is no evidence that Mr Chand took any steps at that time to seek an extension.
Consideration of fairness
Jimenea was not a case where the applicant was represented by a union, but rather where the applicant was self-represented. Jimenea involved the applicant failing to lodge her application on time in circumstances where she had made numerous approaches to lawyers, and a court registry (the State Magistrates Court Registry in that case), before ultimately obtaining legal assistance through a referral or pro bono scheme and filing her application 28 days out of time. Furthermore, in that case, it was relevant to bear in mind that the applicant had English as a second language, and was acting on her own behalf, until such time as she finally obtained legal assistance. In this case, the position is different in that Mr Chand has a union, a registered organisation under the FW Act, acting on his behalf. There is nothing in the circumstances of Jimenea which means that the applicant in that case and Mr Chand are in a like position.
In Henshall the applicant filed an application alleging termination in contravention of the general protection provisions of the FW Act, but somehow managed to do so, via the Commonwealth Law Courts portal, in the Family Court of Australia rather than this Court: see Henshall at [7] per Judge O’Sullivan. In Henshall the Court observed that:
a)the applicant’s evidence was that:
… had the applicant been able to successfully navigate the Court’s e-filing system the substantive application could have been filed by the required date and within the specified time set out in … the [FW Act]:
Henshall at [20] per Judge O’Sullivan; and
b)the Court was satisfied to extend time for the application which involved a delay of 21 days: Henshall at [26]-[27] per Judge O’Sullivan, and:
… in the circumstances, [it would] be unfair to deny the applicant who appears to have a proper basis for making a claim a chance to do so because of difficulties that arose in the course of his interactions with the Court’s registry.
Henshall at [26]-[27] per Judge O’Sullivan.
It is also relevant to note that in Henshall the applicant does not appear to have endeavoured to file his application via the e-lodgement service until either the day before or the day of the expiry of the 14 day time limit under s.370(a)(ii) of the FW Act: Henshall at [7] per Judge O’Sullivan. Further, the application was not finally finalised and filed until 21 days outside of the time permitted, and for 12 of those days the applicant was waiting to hear from the Registry in circumstances where receipt of his application had been confirmed and he had been advised that it had been marked “pending”.
The circumstances in Henshall are not dissimilar to those in this case, save for the fact that Mr Thomson, as might be expected of a union representative in the circumstances, has, following the rejection of the Application, acted promptly to endeavour that the Application was filed, albeit out of time. Otherwise, save for the length of the delay, the circumstances are not dissimilar insofar as the late filing of the Application was caused by difficulties with the e-lodgement process. That there have been difficulties with the e-lodgement process in the past is apparent from the circumstances in Henshall where an application intended to be filed in the Fair Work Division of this Court was somehow able to be filed, not even with this Court, but in the Family Court of Australia, which has no jurisdiction under the FW Act. Further, it then sat in the Registry of the Family Court for 12 days with nothing being done until such time as further enquiries were made by the applicant in Henshall. In that regard, it would be unfair in the Court’s view if the Application, which was filed promptly following its rejection, were not to be the subject of an extension of time, when compared to the circumstances in Henshall.
It is not the case that the Application in this case was not filed in time “by choice” as is submitted by Soft Star. For reasons otherwise explained above: see [18]-[42] above, the Application would have been in time but for overtly technical reasons of form precluding it being filed within time. As in Henshall, substance must prevail over form, and it would be unfair to treat the Application in this case differently to the manner in which the Court dealt with an application which was not filed in time because of difficulties in the course of interactions with the Court’s Registry in Henshall, especially when, in Henshall, the delay in filing was much longer.
The issue of representative error is dealt with above: see [43]-[45] above, and need not be repeated here.
Considerations of like with like fairness do not extend to considering whether or not Mr Chand filed an extension of time application, and when he did so, but rather whether time in which to file the Application should be extended having regard to the circumstances which existed at the time of that filing. It is not to the point to consider what steps were taken to seek to make an application to extend time: see [41] above.
Even if the Court were to take into account the fact that no extension of time application was filed by Mr Chand it would make no practical difference. That is because when the Application was filed it was given a first directions hearing time and date of 4 March 2015 at 9.30am. Any subsequent Application in a Case to extend time would simply have been afforded the same time as the Application for a first directions hearing, resulting in both the Application and the Application in a Case having a first directions hearing before the Court as presently constituted (and as constituted for the purposes of the 4 March 2015 directions hearing). There might have been some slight difference in the directions made on 4 March 2015 if an Application in a Case and supporting affidavit had already been filed, but it is unlikely that the hearing date of 10 April 2015 would have been any different, as the orders made on 4 March 2015 at the directions hearing would have listed the Application in a Case then ordered to be filed at the first available hearing date for a matter of that type. Therefore, in practical terms, the fact that Mr Chand did not separately file an Application in a Case with supporting affidavit seeking an extension of time until ordered to do so by the Court at the first directions hearing on 4 March 2015 has made no practical difference to the timeframe for the disposition of the Application in a Case to extend time. In this respect, Soft Star’s submissions are simply not made out.
For the reasons otherwise set out above, the considerations of like with like fairness which arise under this criteria, especially as they relate to Henshall, favour the granting of an extension of time.
Prejudice
Mr Chand’s submissions
Mr Chand did not put any specific arguments with respect to the issue of prejudice.
Soft Star’s submissions
In relation to prejudice Soft Star submits that:
a)the six day delay beyond the prescribed 14 day time limit to file the Application is acknowledged as a relatively short delay;
b)the 77 days from the date the Application was filed to the date an extension of time was sought has not been explained and cannot be considered insignificant, particularly in light of the evidence of Mr Thomson that he was aware the Application was made out of time;
c)the issue of the Application being out of time was only addressed after it was raised by Soft Star in the Response filed on 15 January 2015, and raised again at the directions hearing on 4 March 2015;
d)the onus for applying for an extension of time to file the Application rests with Mr Chand: Youth Council at [39] (and see also at [8]-[9]) per White J;
e)there were no demonstrable steps taken by Mr Chand to seek an extension of time in the matter until ordered to do so by the Court, or to explain the reasons for the delay in filing, but rather it was left to Soft Star to identify and raise the issue, resulting in prejudice from the additional time and costs in appearing at the directions hearing on 4 March 2015 and responding to the application for an extension of time;
f)had Mr Chand filed the Application within the prescribed period, or filed a request for an extension of time when the Application was filed, Soft Star may not have incurred the further delay and costs caused in dealing with the out-of-time issues, and the constraints of s.570 of the FW Act in relation to costs mean that this is a relevant prejudice unlikely to be ameliorated by a costs order, and should therefore be considered as a factor weighing against the extension being granted; and
g)Soft Star is entitled to the benefit of the time limits imposed by the FW Act.
Consideration of prejudice
For reasons set out above: see [60] above, the Court is of the view that any failure by Mr Chand to file an extension of time application has not resulted in any further delay or any prejudice in that regard to Soft Star.
In relation to the question of additional time and costs, no additional time or costs in appearing at the directions hearing on 4 March 2015 would have been incurred, as the Application as filed resulted in the allocation of a directions hearing on that date being listed by the Registry.
Generally, however, Soft Star may, by reason of the failure of Mr Chand to file the Application within the prescribed time, incur additional costs in arguing the extension of time application.
The provisions of the FW Act make it clear, however, that the Parliament envisaged that applications for an extension of time in which to file a general protections Court application might be necessary. No specific provisions with respect to costs were inserted in the FW Act by the Parliament to deal with such circumstances, and Soft Star must fall back on the general provisions of s.570(2) of the FW Act to argue that one of the criteria in s.570(2) of the FW Act is met. Having regard to the Court’s comments with respect to the merits of the Application: see below at [73]-[76], the Court is of the view that it could not be said that Mr Chand instituted the proceedings vexatiously or without reasonable cause for the purposes of s.570(2)(a) of the FW Act. That would then require the Court to be satisfied that Mr Chand’s unreasonable act or omission caused Soft Star to incur the costs with respect to the extension of time application. Although the circumstances in which the Application was filed, and the Application in a Case for an extension of time also, may have resulted in some additional costs being incurred by Soft Star, the Court is of the view that those costs cannot be characterised as “unreasonable” in the circumstances of this case: Construction, Forestry, Mining and Energy Union v Clarke [2008] FCAFC 143; (2008) 170 FCR 574; (2008) 176 IR 245 at [29] per Tamberlin, Gyles and Gilmour JJ, and in particular having regard to the Court’s comments concerning:
a)the overtly technical basis upon which the Application was first pended, and then rejected: see [18]-[42] above; and
b)Soft Star’s approach to the question of whether or not the explanation for the delay was acceptable: see [32] above.
In the circumstances, therefore, the Court is not of the view that Soft Star suffers any prejudice by reason of the imposition of additional costs.
Ordinarily, Soft Star would be entitled to the benefit of s.370(2)(a)(ii) of the FW Act, and the consequent assertion that it should be entitled to the benefits of the limitation period therein. The Court is, however, of the view, for reasons expressed above, that the circumstance in which the Application was pended, and then rejected: see [18]-[42] above, are such as to offset the usual weight to be given to the benefit that a party might expect where the other party has not complied with a limitation period and so the prejudice, if any, suffered by Soft Star is minor.
In all of the above circumstances, the Court is of the view that if Soft Star suffers prejudice it will be minor.
Merits of the Application
Mr Chand’s submissions
Mr Chand submits that:
a)his dismissal followed the day after the Deed of Release was executed;
b)the Deed of Release settled an underpayment claim that was made by the Union on behalf of Mr Chand and the dismissal occurred because of that action by Mr Chand and the Union;
c)at the dismissal interview Soft Star offered no reason for the dismissal, save that Mr Chand was told he was no longer required;
d)during the weeks of discussion with Soft Star about the underpayment of wages to Mr Chand no mention was made of any business condition that would warrant Mr Chand’s dismissal; and
e)in the months preceding Mr Chand’s dismissal additional trades and non-trades maintenance staff had been engaged to reduce Mr Chand’s burden of maintenance work at the Resort.
Soft Star’s submissions
Soft Star submits that there is no merit in the claim set out in the Application, and that the merits of the case do not provide a compelling reason to grant an extension of time, because:
a)Mr Chand’s employment was terminated by way of genuine redundancy for reasons outside of Soft Star’s control, in particular the reduction in occupancy of the Resort and the expiration of the Contract;
b)the proximity of the exercise of the workplace right with respect to underpayment is not evidence of the reason for the alleged adverse action;
c)the proximity of the underpayment issues to the dismissal is not relevant as the underpayment issues were fully resolved in good faith by Soft Star;
d)the redundancy was a separate, unrelated process to the underpayment negotiations, and was appropriately treated as such by Soft Star; and
e)the reason for Mr Chand’s termination of employment is therefore not a prohibited ground for the purpose of the general protections provisions of the FW Act.
Consideration of merits of the Application
Mr Chand alleges dismissal by reason of his exercising his workplace right under an industrial instrument and by reason of the requirements for payment in relation to a visa under cl.457 of Schedule 2 (“457 Visa”) to the Migration Regulations 1994 (Cth) (“Migration Regulations”), and that the exercise of the workplace right which led to his being paid in accordance with the Deed of Release led directly to his dismissal from employment with Soft Star the day after execution of the Deed of Release. That amounts to an assertion that adverse action was taken against Mr Chand by reason of s.340(1)(a)(ii) of the FW Act. The relevant circumstances are not seriously in dispute, in that the Deed of Release was executed in relation to the underpayment, and Mr Chand was dismissed the next day and promptly departed from the Resort and Christmas Island. For present purposes it may be accepted that Mr Chand intends to argue that although he was told that he was no longer required, no more specific explanation than that was given to him. It may also be accepted for present purposes that there was no consultation with either Mr Chand or the Union in relation to Mr Chand’s impending redundancy. Likewise, it can be accepted for present purposes that Soft Star’s assertions of reductions in occupancy at the Resort, and termination of the Contract with the Department with effect from 4 February 2015, are correct. There is no evidence of the engagement of additional trades and non-trades maintenance staff at the Resort in the months preceding Mr Chand’s dismissal, and the Court will therefore not have regard to that submission by Mr Chand.
The proximity of the dismissal to the signing of the Deed of Release may not be direct evidence of the alleged adverse action, but when viewed in conjunction with the peremptory nature of the dismissal, the failure to explain the circumstances of the redundancy to Mr Chand at the time of his dismissal, or to Mr Chand or the Union prior to his dismissal, and the failure to consult in respect thereof, it might arguably allow an inference to be drawn from those facts that it was the exercise of the workplace right by Mr Chand that gave rise to the alleged adverse action: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551 at [71]-[73] per Mansfield and Gilmour JJ (and cases there cited). 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, and it is proper that whether or not that be so be determined at hearing.
Soft Star placed significant emphasis upon the reduction in occupancy and the termination of the Contract as irrefutable evidence that it made Mr Chand redundant, and therefore did not contravene a general protection. Without more, the Court cannot accept this argument. It may ultimately prove to be right, but without knowing how many other employees were engaged on plumbing and maintenance work at the Resort, how much plumbing and maintenance work there was notwithstanding the reduction in occupancy, and whether there was ongoing plumbing and maintenance work notwithstanding the forthcoming termination of the Contract, it is not possible to safely draw the conclusion that Soft Star did in fact make Mr Chand redundant on the basis that his job was no longer required as at 31 October 2014. It might also be arguable that although Mr Chand might not have been redundant as at 31 October 2014, he would have become redundant upon the termination of the Contract. That might not relieve Soft Star from liability for any alleged adverse action, but might have implications for the quantum of any compensation sought, subject to any issues arising with respect to the ongoing obligations of Soft Star with respect to Mr Chand’s 457 Visa which was for a period of four years of which Mr Chand had worked a little over one year at the time of his dismissal. Further, whether the negotiations concerning resolution of Mr Chand’s underpayment were conducted in good faith, and whether they were a separate, unrelated process to the redundancy, might, given the proximity of the dismissal of Mr Chand, and the failure to raise or consult with either Mr Chand or the Union concerning the impending redundancy of Mr Chand, might be dependent upon what evidence of the various processes, and their interaction or otherwise, is able to be adduced, and if adduced, whether it withstands cross-examination.
In all of the above circumstances the Court considers that the cases of Mr Chand and Soft Star, as they presently appear, may both be arguable, and may both have merit. As the Application may have merit, and as Soft Star has not been able to persuade the Court that its argument concerning the alleged redundancy of Mr Chand is an obviously strong one: see FW Act, s.361, the Court is of the view that the merits of the Application do not weigh against an extension of time being granted.
Other matters
In considering whether to extend time the Court has not taken into account that there may be a public interest in ventilating a redundancy by Soft Star, as a contractor to the Department with responsibility for administration and enforcement of visa obligations for both sponsors and employees, and whether those obligations were met in this case, in circumstances where it might be said that Mr Chand was a potentially vulnerable employee by reason of the nature of the sponsorship arrangements in respect of a 457 Visa. At this stage, there is insufficient evidence for the Court to draw any conclusion which might bear upon that issue in the context of the extension of time application. The potential vulnerability or otherwise of Mr Chand in that respect would have to be the subject of proper evidence: Hanssen Pty Ltd v Jones [2009] FCA 192; (2009) 179 IR 57 at [54]-[62] per Siopis J.
Conclusions and orders
The Court has carefully considered all of the circumstances and the evidence (such as it presently is), and had regard to the usual criteria in considering whether to extend time to file a general protections Court application. Having done so, the Court, having regard in particular to its consideration of the explanation for the short delay, the contesting of the termination by Mr Chand, and the Court’s approach to a not dissimilar situation in Henshall, all of which weigh significantly in favour of time being extended, and each of the other factors not weighing either significantly or at all against time being extended, the Court is positively satisfied that time to file the Application should be extended to the time of actual filing on 30 December 2014. There will be an order accordingly.
The parties should confer within seven days as to the future directions and programming of the Application. Otherwise, the matter will be adjourned to 9.30am on 11 February 2016 for further directions, with liberty to the applicant to appear by telephone. There will be orders accordingly. If the parties are in agreement as to future directions and programming of the Application (which may at this stage be no more than the usual orders made by this Court referring a matter for mediation, and referral back if mediation does not settle the matter) the parties can file a consent order in terms: FCC Rules, r.13.04.
As to the costs of the Application in a Case, if either party considers that they can claim costs under s.570(2) of the FW Act, an Application in a Case, supported by affidavit, must be made by 5 February 2016: FCC Rules, r.21.02(1)(a).
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 January 2016
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