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 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
At the time of the applicant’s email, it appears that he had some 645 hours of accrued personal leave.
On 21 December 2021, after receiving the respondents’ email with letter dated 13 December 2021, the applicant had clearly indicated that he was not proposing to proceed with any claim for workers’ compensation and that he was simply asking to take his accrued personal leave during the period he was unfit to work due to illness/medical conditions.
On 22 December 2021, just prior to 5pm, the second respondent responded via email. That email read:
The workers compensation claim has been commenced and the excess paid based on your claim on Monday 13/12/2021 (blood clots from lifting sheets) prior to your emergency surgery. We had to notify our insurer that’s the law.
You will need to send us a declaration signed by a JP or a lawyer stating that your illnesses in the last few months are not subject to a workers compensation claim so that we can forward to Icare. Until we get that we will not be processing your accrued sick leave through what is normally our annual break which we had discussed would be the whole of January.
…
I have spoken to you recently about how we are quiet with our excavation and you need to use your annual leave which has accrued you said you had to speak to Melinda. I still have no reply…
Until we receive the stat declaration leave will be paid as annual leave you can call me to discuss anytime as always[5]
[5] Affidavit of Applicant filed 16 September 2022 at annexure RC-4
The Court notes that it appears at first blush that the contents of the second respondent’s email of 22 December 2021, may be in conflict with the letter dated 13 December 2021, emailed on 21 December 2021, in respect of the respondents’ assertions as to the lodgement of any workers’ compensation claim.
In response to the email of 22 December 2022, the applicant replied via email on the morning of 23 December 2022, advising:
Please withdraw the workers compensation claim that was submitted without my consent to Icare… this is not a worker compensation matter, rather a regular sick leave matter…
I have submitted my medical certificate which entitles me to sick leave not annual leave…[6]
[6] Affidavit of Applicant filed 16 September 2023 at annexure RSC-5
That afternoon, the second respondent replied with
As requested I ask you to contact me to discuss our work going forward…
The matters raised in the applicant’s email about sick leave and workers’ compensation were not addressed by the respondents.
The applicant later that evening responded:
As you know I am unwell and I would prefer to converse over email please.
If you can please respond to this email address, with the point you wanted to discuss…
At approximately 3pm on 24 December 2021, an email from the second respondent advised the applicant that his position with the first respondent was made redundant as of 24 December 2021.
The General Protections Application
On 13 January 2022, the applicant made an application to the Fair Work Commission pursuant to s.365 of FWA.
The matter was the subject of conciliation on 28 March 2022.
The Fair Work Commission issued a s.368B Certificate dated 29 April 2022. As a consequence, the time for applying to this Court pursuant to s.370 FWA was 13 May 2022.
The Application to this Court was filed on 4 August 2022, some 12 weeks late.
The Application is however not limited to a general protection claim, and encompasses a claim for underpayments of overtime said to be in breach of the applicable award and thus in breach of s.45 FWA; a claim for annual leave said to be in breach of s.90(2) FWA; a claim for long service leave said to be in breach of s.4 Long Service Leave Act 1955 (NSW); and a claim for payment in lieu and/or redundancy pay, said to be in breach of s.117(2) and s.119(1) FWA. There is no suggestion that the other claims are out of time.
Relevant Principles
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; and
iv.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
The respondents are critical of the applicant’s explanation and submit that the Court would not consider the applicant’s evidence explaining the delay as being probative. Such submission is not accepted. The applicant, as is his right, did not waive privilege in respect of the entire solicitor’s file and/or the advice he had received from his previous solicitor. The applicant was not cross-examined. No Jones v Dunkel inference was sought to be made.
Unchallenged evidence should prima facie be accepted by a tribunal of fact. However, the Court is not bound to accept such evidence as there may be circumstances in which the evidence may be rejected or subject to criticism or doubt, such as where it is illogical or inherently inconsistent.[9]
[9] Hull v Thompson [2001] NSWCA 359 at [21]
There are no such circumstances in the present case, that is, there is no justifiable basis as to why the applicant’s evidence about his lack of knowledge of the issuance of the s.368 certificate until mid-July 2022 should not be accepted and indeed, as to why his evidence about the conduct of his previous solicitors and the advice (including lack of) that they provided to the applicant, should not be accepted.
The only reasonable inference to be drawn from a failure to cross-examine, is that the cross-examiner had instructions that the witness’ evidence was probably right or that a calculated decision (perhaps influenced by the first point) was taken to try to argue the matter without attacking the evidence.[10] Counsel for the respondents did not concede that the applicant’s evidence should be accepted simply because it was not challenged. From the Court’s exchange with counsel for the respondents, it would not be open to the Court to infer (as the authorities suggest) that the legal representatives had instructions that the applicant’s evidence was probably right. Such evidence was sought to be attacked because it was not corroborated by the evidence of the former solicitors or by the production of the solicitor’s file. However, a calculated decision was taken to argue the matter without attacking the evidence through cross-examination.
[10] Hull & Thompson at [25] said in the context of an expert’s report, however, there is no reason as to why the same principles would not apply to evidence of lay witnesses
Consequently, the Court accepts the applicant’s evidence going to the explanation of the delay.
The applicant was not aware of the s.368 certificate being issued until at least 12 July 2022. He was given advice on 18 July 2022 that the time to file an application in this Court was 14 days from the date of the certificate. By 12 July 2022, he was well and truly out of time.
The applicant submits that the failure to commence proceedings within time was almost entirely due to the erroneous advice given by the applicant’s previous solicitor. The alleged erroneous advice is not simply the lack of notification of the receipt of the s.368 certificate, but also is said to be the suggestion that there was no point in continuing with the claim as the first respondent was winding up the business, and that no advice about a potential claim against the second respondent had been provided.
The applicant explains that his ill-health was also a factor which influenced his actions, and in part resulted in the delay. While there is no medical evidence about any diagnosis or the effects of such a diagnoses, the Court accepts that the applicant did not feel well and that this impacted him in the ways he describes.
The Court accepts that the applicant did become increasingly concerned about his financial position as a result of not being able to work, not only due to his ill health, but also as a result of not having a position to return to after he was well-enough to work again. The Court accepts that the applicant took some time after he started feeling better to come to a decision to obtain further legal advice, and accepts the applicant’s explanations as to why this was so.
The applicant says that from about mid-June 2022 he started feeling well enough to tackle these issues. The time from mid-June 2022 until he terminated the retainer with his former solicitors and obtained advice from his new solicitors in July 2022, is to be understood in the context of the applicant already having been provided with advice and feeling uneasy about it. The applicant is, after all, not legally trained, and went to lawyers because they are the ones who are meant to know.
Even though the certificate was forwarded to the applicant from his former solicitors, together with the rest of the file on 12 July 2022, and the applicant says he and his wife looked at the documents, the Court accepts that he did not fully understand them. Once the file had been provided to his current solicitors, the applicant very promptly received advice about the s.368 certificate and the time that had started to run. The application to this Court was lodged for filing on the 17th day after the applicant learnt of the time limitation relevant to the certificate which had been issued. Once again, by that stage he was well and truly out of time. However, the evidence is that the applicant acted promptly in providing instructions, obtaining advice and acting on that advice once his new solicitors had been engaged, which was on 29 July 2022.
The Court is satisfied that the applicant has provided an adequate explanation for the delay in filing his general protections application to this Court.
Action taken by the applicant to contest the termination
There is no dispute that the applicant took steps to contest the termination by filing a general protections claim with the Fair Work Commission. The parties attended a conciliation conference with the Commission. There is evidence that offers to settle have been made.
At the time of the filing of the application to the Fair Work Commission, the applicant sought re-instatement. He no longer seeks such relief in respect of the general protections claim. Instead, he seeks compensation.
Prejudice to the respondents
Apart from submitting that the respondents believed that the applicant was not pressing ahead with his claim for adverse action as he had not commenced proceedings out of time, and as such going about with their lives as usual, the respondents have not identified any prejudice they might suffer if time for filing is extended.
The mere absence of prejudice however, does not of itself justify an extension of time. It is simply a relevant factor in the exercise of the Court’s discretion.
Merits
Whether treated as a neutral consideration or otherwise, the substantive claim is not plainly unmeritorious or vexatious. The Court accepts that the applicant appears to have an arguable claim and that if the extension of time is not granted, he will not be able to pursue that claim.[11]
[11] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [34]
Fairness
No submissions were made in respect of fairness as between the applicant and other persons in a like position which may be relevant to the exercise of the Court’s discretion.
Determination
The applicant bears the onus of satisfying the Court that there are grounds which warrant the Court exercising its discretion under s.370(a)(ii) to extend time for the filing of the application.
In determining whether the Court ought to exercise its discretion in the applicant’s favour, the Court has taken into account all of the relevant matters outlined above, which in summary indicate that:
(a)The substantive application is a significant period out of time, however, the reasons for delay have been satisfactorily explained;
(b)The applicant made the requisite application in the Commission, attended the conciliation conference and engaged in settlement discussions;
(c)There is no prejudice to the respondents; and
(d)The application appears to be arguable on the merits.
Taking all relevant matters into account, the Court is satisfied that this is an appropriate occasion for that discretion to be exercised and that it is in the interests of justice to grant the applicant the extension sought.
In that regard, the Application was lodged for filing on 4 August 2022, but not accepted for filing on the Court’s system until 5 August 2022, when it was sealed. For that reason, the extension to file will be until 5 August 2022.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 February 2023
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