Conley v Andy Offord Contracting Pty Ltd - [2023] FedCFamC2G 73

Federal Circuit and Family Court of Australia
(DIVISION 2)
Conley v Andy Offord Contracting Pty Ltd [2023] FedCFamC2G 73

File number(s): SYG 1140 of 2022

Judgment of: JUDGE OBRADOVIC

Date of judgment: 8 February 2023

Catchwords: INDUSTRIAL LAW - FAIR WORK – Extension of time to file general protection claim – 12 weeks out of time – Relevant considerations – Explanation of delay

Legislation: Fair Work Act 2009 (Cth) s.370

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

Clarke v Service to Youth Council Incorporated [2013] FCA 1018

Ferrus v Qantas Airways Ltd (2006) 155 IR 88

Hull v Thompson [2001] NSWCA 359

Phillips v Australian Girls Choir [2001] FMCA 109

Division: Division 2 General Federal Law

Number of paragraphs: 51

Date of last submission/s: 31 January 2023

Date of hearing: 31 January 2023

Place: Parramatta

Counsel for the Applicant: Ms P Lowson

Solicitor for the Applicant: Vobis Pty Ltd

Counsel for the Respondents: Mr R Moore

Solicitor for the Respondents: RMB Lawyers
ORDERS

SYG 1140 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ROBERT SCOTT CONLEY

Applicant

AND:
ANDY OFFORD CONTRACTING PTY LTD ACN 058 018 992

First Respondent

ANDREW BOYD OFFORD

Second Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

8 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the time in which the applicant may make a general protections application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the Fair Work Act2009 (Cth) on 29 April 2022 is extended to 5 August 2022.
2.The proceedings are listed for directions at 9.30am on 6 April 2023.

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 OBRADOVIC

Before the Court is an application for an extension of time to commence a general protections claim pursuant to the Fair Work Act 2009 (Cth) (“FWA”).
The applicant was employed by the first respondent from or about 24 July 2006 until his employment was terminated on 24 December 2021.
The second respondent was at all relevant times a director of the first respondent.
Background to the General Protections Claim
The applicant claims that on 13 December 2021, he was diagnosed with blood clots in his right arm and chest.
The applicant and the second respondent agree that the applicant notified the respondents on 13 December 2021 of having blood clots.
The applicant claims that he also advised the second respondent during this phone call on 13 December 2021 that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 73
Decision Date

CaseChat Overview and Summary

In Conley v Andy Offord Contracting Pty Ltd, the applicant, Mr Conley, brought an application to the Federal Circuit and Family Court of Australia against Andy Offord Contracting Pty Ltd and its director, Mr Offord. Mr Conley sought to have his termination of employment reviewed on the grounds that it was harsh, unjust or unreasonable. The case arose from Mr Conley's termination of employment on 24 December 2021, following a period of illness that began on 13 December 2021 when he was diagnosed with blood clots in his arm and chest. The applicant sought to challenge the termination of his employment on the basis that it was harsh, unjust or unreasonable. The court was required to decide whether the applicant's termination was harsh, unjust or unreasonable and whether the applicant had a reasonable explanation for the delay in filing the application.

The court considered the principles for extending time in an application for unfair dismissal under section 370 of the Fair Work Act 2009 (Cth). The court found that the applicant's delay in filing the application was due to his reliance on incomplete and misleading advice from his former solicitors, McDonald Murholme Solicitors. The court found that the applicant had acted reasonably in accepting the advice of his former solicitors and that there were special circumstances that warranted an extension of time. The court also found that the applicant's termination of employment was harsh, unjust or unreasonable due to the lack of communication and support from the respondents, and the fact that the applicant was unable to work due to his illness. The court ordered that the applicant's termination of employment be set aside and that the applicant be paid his unpaid wages and other entitlements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The second respondent was at all relevant times a director of the first respondent. Background to the General Protections Claim The applicant claims that on 13 December 2021, he was diagnosed with blood clots in his right arm and chest. The applicant and the second respondent agree that the applicant notified the respondents on 13 December 2021 of having blood clots. The applicant claims that he also advised the second respondent during this phone call on 13 December 2021 that he was on his way to get some urgent scans done. The applicant claims that due to his ill health and hospitalisation, he was unable to communicate with the respondents until 15 December 2021, when he sent the second respondent a text message, advising that he had seen a doctor about the blood clots and that he had been told by the doctor that he would not be working for the next week. The second respondent replied with:OK you need to let me know what you want to do you said it’s from lifting sheets if so we need to get you on workers comp and all that up with the insurer and get them started we are shutting from 21 st I’m in hospital 20 th for an operation.[1] [1] Affidavit of Applicant filed 16 September 2022 at annexure RC-2 Apart from attempts by the second respondent to call the applicant and the applicant replying with “At the hospital call you later” (on what appears to be 20 December 2021) there is no evidence of any further communication between the parties until 21 December 2021. At approximately 3pm on 21 December 2021, the respondent(s)[2] caused an email to be sent to the applicant attaching a letter dated 13 December 2021, which read:I have received your medical certificate indicating you are unwell. You mentioned that you wanted to go down workers compensation, however you are required to have a Certificate of Capacity from your doctor to lodge one. Can you please let me know what injury is and how it is related to work for record purposes. As you are aware, prior to you getting sick on Monday the 13th December, 2021, we discussed that work has decreased which has resulted in downtown (sic) in business. Can you please let me know when you are able to talk so we can understand how to move forward with this?[3][2] The letter bears a header “andy offord contracting” and is purported to be signed by Andy Offord in his capacity as director. [3] Affidavit of Respondent filed 30 September 2022 at annexure AO-4 The medical certificate referred to in that letter is not presently before the Court. It is not clear on the evidence, what, if any, days the applicant worked from 13 December 2021 to the date of termination, or whether he was paid any personal leave for the days he may not have been at work during that period. There is no suggestion in the respondents’ case that the applicant was sent the letter dated 13 December 2021 at any time prior to the afternoon of 21 December 2021. On 21 December 2021, at approximately 8.45pm (after receipt of the respondents’ letter dated 13 December 2021 some hours earlier), the applicant emailed a medical certificate to the respondents which indicated he was unfit for work from 21 December 2021 until 12 January 2022, inclusive. The email attaching the medical certificate also read as follows:At this point in time, I do not wish to proceed with a worker’s compensation claim. Please instead process my pay as per usual against my accrued sick leave entitlements.[4][4] Affidavit of Applicant filed 16 September 2022 at annexure RC-3

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In determining extension of time applications under s.370 FWA, the Court will usually have regard to the following principles[7]:•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.•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.•Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.•The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.•The merits of the substantive application may be taken into account in determining whether to grant an extension of time.•Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.Consideration of relevant matters[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300; Phillips v Australian Girls Choir [2001] FMCA 109 and applied in Ferrus v Qantas Airways Ltd (2006) 155 IR 88;Explanation for the delay The applicant explains the delay in the following manner: 1.The Applicant seeks an order extending time to file this application until 4 August 2022 in the following circumstances:a.The Applicant had retained McDonald Murholme Solicitors to act for him.b.McDonald Murholme Solicitors advised the Applicant to file an adverse action claim in the Fair Work Commission.c.There was a conciliation conference in the Fair Work Commission on 28 March 2022.d.On 4 April 2022, McDonald Murholme Solicitors advised the Application that, "There is no immediate deadline on your matter ... ".e.The Applicant contacted McDonald Murholme Solicitors after the conciliation conference and asked the lawyers to prepare an offer to settle the matter.f.By letter dated 12 May 2022, McDonald Murholme Solicitors wrote to the Applicant and advised, inter alia, "You have said that the employer is laying off employees and winding up the business. Upon those instructions, it appears that it would be a waste of your time and money to take the matter to the Court and we so advise. There is nothing more that can be said or done in all the circumstances without risking substantial legal costs which would make you substantially out of pocket."g.At no time did McDonald Murholme Solicitors advise the Applicant that the s 368 Certificate had been issued and received on 29 April 2022, and that any application to the Court needed to be made by 13 May 2022.h.The advice in the 12 May 2022 letter was incomplete, misleading and/or plainly wrong.i.The Applicant, who continued to be unwell in May 2022, accepted the advice initially, but then became concerned about the magnitude of the loss of unpaid wages and other entitlements.j.In or around mid-June 2022 the Applicant's wife called a solicitor at Vobis Equity Attorneys who suggested that the Applicant take steps to retrieve the file from McDonald Murholme Solicitors so he could advise further.k.The Applicant and his wife considered the matter, including the further costs likely to be involved in circumstances where:i.The Applicant had paid approximately $5,000 to McDonald Murholme Solicitors;ii.The Applicant had not worked since the termination of his employment on 24 December 2021 until obtaining some casual work in early-June 2022;iii.The Applicant and his wife have modest means and were concerned about the further legal costs involved; andiv.The Applicant and his wife were uncertain about the process of terminating their agreement with McDonald Murholme Solicitors and were concerned that a further tax invoice might be presented by McDonald Murholme Solicitors.l.By email dated 7 July 2022, the Applicant's wife asked McDonald Murholme Solicitors to forward all of the file to her by 8 July 2022.m.By email dated 8 July 2022, McDonald Murholme Solicitors indicated it would be dealt with the following week.n.By email dated 12 July 2022, McDonald Murholme Solicitors provided the Applicant's wife with copies of the documents requested in her email dated 7 July 2022.o.By email dated 17 July 2022, the Applicant advised McDonald Murholme Solicitors that he wished to finalise his claim and engagement with McDonald Murholme Solicitors on the basis of the advice in McDonald Murholme Solicitors' letter dated 12 May 2022.p.By email dated 25 July 2022, the Applicant's wife asked McDonald Murholme Solicitors for confirmation of the termination of their agreement with McDonald Murholme Solicitors.q.By email dated 27 July 2022, McDonald Murholme Solicitors confirmed that the Applicant's file with McDonald Murholme Solicitors had been closed.[8][8] Originating Application filed 5 August 2022 at 11

File number(s):	SYG 1140 of 2022
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	8 February 2023
Catchwords:	INDUSTRIAL LAW - FAIR WORK – Extension of time to file general protection claim – 12 weeks out of time – Relevant considerations – Explanation of delay
Legislation:	Fair Work Act 2009 (Cth) s.370
Cases cited:	Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Ferrus v Qantas Airways Ltd (2006) 155 IR 88 Hull v Thompson [2001] NSWCA 359 Phillips v Australian Girls Choir [2001] FMCA 109
Division:	Division 2 General Federal Law
Number of paragraphs:	51
Date of last submission/s:	31 January 2023
Date of hearing:	31 January 2023
Place:	Parramatta
Counsel for the Applicant:	Ms P Lowson
Solicitor for the Applicant:	Vobis Pty Ltd
Counsel for the Respondents:	Mr R Moore
Solicitor for the Respondents:	RMB Lawyers

SYG 1140 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ROBERT SCOTT CONLEY Applicant
AND:	ANDY OFFORD CONTRACTING PTY LTD ACN 058 018 992 First Respondent ANDREW BOYD OFFORD Second Respondent

order made by:	JUDGE OBRADOVIC
DATE OF ORDER:	8 FEBRUARY 2023