FEDERAL COURT OF AUSTRALIA
Chou v Digital61 Pty Ltd [2021] FCA 640
File number: ACD 39 of 2020 Judgment of: ABRAHAM J Date of judgment: 11 June 2021 Catchwords: INDUSTRIAL LAW – General protections claim under Fair Work Act 2009 (Cth) – termination of employment – where applicant filed application outside the statutorily prescribed period – application for extension of time Legislation: Fair Work Act 2009 (Cth) ss 340, 368, 370, Part 3-1
Industrial Relations Act 1988 (Cth) s 170EA
Workplace Relations Act 1996 (Cth) s 170CP
Cases cited: Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Clarke v Service to Youth Council Inc [2013] FCA 1018
Jennings v Salvation Army [2003] FCA 1193; 128 IR 366
Division: Fair Work Division Registry Australian Capital Territory National Practice Area: Employment and Industrial Relations Number of paragraphs: 41 Date of hearing: 29 March 2021 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Mr. A Opas Solicitor for the Respondent: Mackenzie Workplace Law ORDERS
ACD 39 of 2020 BETWEEN: IRWIN CHOU
Applicant
AND: DIGITAL61 PTY LTD
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
11 JUNE 2021
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
On 4 October 2019 the applicant commenced employment with the respondent, Digital61 Pty Ltd, a Canberra-based IT company. He was employed as the Operations Manager pursuant to a written employment agreement dated 2 October 2019. On 6 March 2020, the respondent terminated the applicant’s employment with four weeks’ notice.
The applicant seeks an extension of time to bring a general protections court application in respect of his dismissal from employment, which he contends is in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act). An application of this kind must be brought within 14 days after the Fair Work Commission (FWC) issues a certificate stating that the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful: s 370(a)(ii) of the FW Act. The applicant filed his originating application one day outside of the statutorily prescribed 14 day period.
A judge of this Court directed that the applicant file an application for the extension and imposed a timetable for so doing, together with the filing of written submissions and evidence in support of the application.
Pursuant to the orders, on 20 October 2020 the applicant filed an Interlocutory Application seeking an extension of time pursuant to s 370(a)(ii) of the FW Act together with a supporting affidavit sworn by him that day. The applicant did not file any written submission in accordance with the orders.
The respondent opposed the application, and relied on the affidavits of Bill Ratcliff (Director of Digital61 Pty Ltd) affirmed 2 November 2020; Troy Rollan (Delivery Executive who…
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- AGLC
- Chou v Digital61 Pty Ltd [2021] FCA 640
- Case
- [2021] FCA 640
- Decision Date
CaseChat Overview and Summary
The Court identified that the applicant's explanation for the delay in filing the application was one consideration, but not the only one, in exercising the discretion to extend time. The applicant did not adequately address all relevant considerations in his initial submissions. The Court also considered the merits of the substantive application. The applicant had actively contested his dismissal in the Fair Work Commission and in the Federal Circuit and Family Court of Australia. However, the Court found the explanation for the delay to be inadequate due to insufficient detail, and the respondent's opposition was based on this and the merits of the substantive application.
The Court concluded that the deficiencies in the applicant's pleadings, particularly the inadequate explanation for the delay, warranted the dismissal of the application for an extension of time. The Court found that the applicant had not sufficiently demonstrated that an extension of time was warranted. The Court's decision was based on the respondent's submissions, which accurately summarised the relevant legal principles and legislative provisions.
The Court dismissed the application for an extension of time. The Federal Circuit and Family Court of Australia exercised its discretion under the Federal Court Rules 2011 to deny the applicant's request to extend the time for filing his application outside the statutorily prescribed period.
Orders
Orders of the court
1. The application for an extension of time is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
A reading of the respondent’s written submission, which includes a reference to the relevant legislative provisions and legal principles, makes it abundantly clear that an explanation for the delay is only one consideration in the exercise of the Court’s discretion to extend time. That would have been readily apparent to the applicant. The applicant was served with these submissions months before the hearing. Despite that, the applicant did not attempt to answer the submissions in writing, nor in his initial oral submissions. Rather, as noted above, he initially limited his submission as to his explanation. In that context, and by reference to the principles which were accurately summarised in the respondent’s submissions (which he said he had before him) an opportunity was provided to him to address the other relevant considerations. Given the deficiencies in the applicant’s pleadings, and the basis of the respondent’s opposition, I directed his attention in particular to the merits of his case. He then made some submissions on the merits of his case. Consideration It is appropriate to focus on the issues of the explanation for the delay and the merits of the substantive application, as they comprise the two bases of challenge. There is no suggestion that any of the other considerations relevantly adversely affect the grant of the application. The respondent accepts that in pursuing the proceedings in the FWC and in this Court the applicant has generally actively contested his dismissal with the respondent.Explanation for the delay The reason for the delay which is given by the applicant in his affidavit in support of his extension is that there were difficulties which he encountered in navigating the claim procedure and the Court’s processes as a self-represented litigant. He said that sometime between 3 and 7 August 2020, he sought assistance from Justice Connect who advised him that he would need to file the FWC s 368(3)(a) certificate himself. The applicant said that he needed to familiarise himself with the Court’s processes and to learn that he would need to file an originating application and statement of claim. He said it took two days for him to obtain access to the Court’s e-lodgement system and he attempted to lodge his originating application on three occasions (on 11, 12 and 13 August 2020), all of which were rejected. It was not until the fourth attempt at lodgement, on 13 August 2020, that he successfully filed his documentation. The applicant annexed the emails from the Court rejecting the filings which support the attempts made. The respondent challenges the adequacy of that explanation as providing insufficient detail, as the basis on which the applications were rejected was not provided. That is, there is no explanation as to the state of the documentation when it was rejected. That is correct, although some limited information is provided in the emails as to why the documents were rejected, including that they did not comply with the rules.