Construction, Forestry, Maritime, Mining and Energy Union v Forever New Clothing Pty Ltd
[2022] FedCFamC2G 366
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Construction, Forestry, Maritime, Mining and Energy Union v Forever New Clothing Pty Ltd [2022] FedCFamC2G 366
File number: MLG 926 of 2021 Judgment of: JUDGE FORBES Date of judgment: 20 May 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – general protections court application – application filed out of time – application for extension of time – matters relevant to exercise of court’s discretion – extension of time granted Legislation: Fair Work Act 2009 (Cth) s 340, 351, 365, 368, 369, 370
Federal Circuit Court of Australia Rules 2001 (Cth) r 45.06
Industrial Relations Act 1988 (Cth) s 170EA
Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd [1995] 67 IR 298
Carfoot v SAC Sydney Archdiocese t/as St Vince De Paul Society [2010] FW Act 4080
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344
Kyvelos v Champion Socks Pty Ltd (AIRCFB) Print T2421
Transport Workers Union v School Bus Contractors [2011] FMCA 28
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submissions: 23 July 2021 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicants: Ms Wiles Solicitor for the Applicants: Construction, Forestry, Maritime, Mining and Energy Union Solicitor for the Respondent: Mr Smith Solicitor for the Respondent: Norman Waterhouse Lawyers ORDERS
MLG 926 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Applicant
GALIT MARKS
Second Applicant
AND: FOREVER NEW CLOTHING PTY LTD
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) the time for making a general protections court application shall be extended until 6 May 2021.
2.
The Applicants have leave to file and serve their Application dated 6 May 2021 and Form 2 – Claim alleging dismissal in contravention of a general protection dated
29 April 2021.
3.The Respondent shall file and serve a Response and Points of Defence by 1 July 2022.
4.
The Application shall be listed for a first directions hearing before me on
6 July 2022 at 9.30am.
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 FORBES
INTRODUCTION
This matter involves an Application by the Construction, Forestry, Maritime, Mining and Energy Union and Ms Galit Marks (collectively, the Applicants) dated 6 May 2021 seeking to invoke the Court’s discretion under section 370(a)(ii) of the Fair Work Act 2009 (Cth)
(“the FW Act”) to grant an extension of time in which to file an application alleging dismissal in contravention of the general protection provisions of the Act.The employment of the Second Applicant (Ms Marks) was terminated by the Respondent (“Forever New”) on 26 February 2021 on the stated ground of redundancy. Ms Marks contends, however, that Forever New took adverse action against her by dismissing her from employment because she exercised various workplace rights and by discriminating against her on the basis of her physical disability and carer responsibilities. In the substantive claim the Applicants seek relief against Forever New in respect of alleged contraventions of sections 340 and 351 of the FW Act.
Relevantly, section 370 of the FW Act provides that a person must not make general protections court application in relation to a dismissal dispute unless two criteria are satisfied, namely:
(a)the Fair Work Commission (Commission) has issued a certificate under paragraph 368(3)(a) of the FW Act in relation to the dispute; and
(b)the application to the court 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.
The first of the criteria is not in issue in the context of this application. Ms Marks applied to the Commission requesting that it deal with the alleged dismissal dispute. Following a conciliation conference conducted on 15 April 2021, the Commission was satisfied pursuant to s.368(3)(a) of the FW Act, that all reasonable attempts to resolve the dispute between Ms Marks and Forever New Clothing had been unsuccessful. The Application to this Court attaches a certificate (“FWC Certificate”) to that effect.
The application presently before the Court agitates the second criteria, namely the time allowed for the making of a general protections court application in relation to the dismissal dispute.
Section 370(a)(ii) of the FW Act requires a general protections court application to be made within 14 days after the FWC Certificate is issued. It is common ground that the Applicants were required to lodge the Application and Form 2[1] in this Court by 29 April 2021 if they wished to commence the proceeding as of right.
[1] See rule 45.06(b) of the Federal Circuit Court of Australia Rules
The Applicants did not file the present application, which includes an application for an extension of time, until 6 May 2021, 7 days after the expiry of the 14 day period. For that reason the Applicants now seek that the Court exercise its discretion under section 370(a)(ii) to extend time for the application to be made.
Forever New opposes the Application for an extension of time.
It is not disputed that the onus falls on the Applicants to satisfy the Court that grounds exist for exercising the Court’s discretion to grant an extension of time in their favour.[2] Nor is it controversial that Forever New, as the prospective respondent, bears an evidentiary onus to raise any consideration telling against the exercise of the Court’s discretion.[3]
[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Toohey and Gummow JJ at [553]
[3] Ibid at [547]
In support of their extension of time application, the applicants have filed two affidavits deposing to background matters and an outline of submissions dated 2 July 2021. An outline of submissions dated 16 July 2021 was filed by the respondent and on 23 July 2021 the applicants filed a short reply.
This application was recently docketed to me and on 28 March 2022 an order was made by consent that the Applicant’s extension of time application be dealt with “on the papers”. The respondent has indicated that it does not wish to cross-examine the deponents of the affidavits filed on behalf of the applicants. Those affidavits have been received into evidence unopposed and have been read. Accordingly this application falls to be determined on the materials presently before the Court.
BACKGROUND
The chronology of events explaining the circumstances of the late lodgement of the Application are set out in the affidavit of Ms Doreen Mary French (Industrial Support Officer for the CFMMEU) dated 2 July 2021 and the affidavit of Ms Vivienne Lee Wiles (Senior National Industrial Officer of the CFMMEU) also dated 2 July 2021.
No affidavits have been filed on behalf of Forever New Clothing which contest the events deposed in the Applicants’ affidavits. The Court also notes that in submissions filed on
16 July 2021, the Respondent says that it does not intend to produce evidence in response to the Applicants’ affidavits and the Respondent accepts the respective affidavits of Ms Wiles and Ms French.[4][4] Respondent’s Outline of Submissions filed 16 July 2021, para 6 and 7
In substance, the Applicants and the Respondent agree that the circumstances which led to the delay in filing the substantive claim with the Court were caused by the representative error of
Ms French, and no responsibility for the delay can be apportioned to Ms Marks. The circumstances for the delay are set out below.On 29 April 2021, the final day of the 14 day time period, Ms Wiles instructed her subordinate Ms French to lodge the Application and Form 2 via the Court’s eLodgment portal and to pay the requisite filing fee.[5]
[5] Affidavit of Ms French filed 2 July 2021 (“French Affidavit”), para 6
Ms French deposes that at 3.53pm that day, an attempt was made to electronically lodge the documents with the Court Registry. However, Ms French made an accidental error by selecting the incorrect category for the Application and as a result, an incorrect filing fee of $690.00 was withdrawn from the credit card used to make the payment, belonging to the First Applicant’s National Secretary, Ms Jenny Kruschel, who had authorised the Court filing.[6]
[6] French Affidavit, para 7
At about 4.00pm, after the documents had been lodged, Ms French telephoned the Federal Circuit Court Registry (“FCC”) aiming to remedy the mistake. Ms French deposes that she wanted to rectify her selection of the incorrect filing category and to prevent the $690.00 filing fee being deducted. Ms French deposes to having been on hold with the Registry for approximately 30 minutes until the call was transferred by a member of Court staff to another sector only to then be disconnected. Thereafter, a second attempt to contact the FCC Registry was made and Ms French was successful in raising her concerns with a female Registry officer.[7]
[7] French Affidavit, para 9 and 10
The Registry officer notified Ms French that the filing fee of $690.00 would be refunded back to Ms Kruschel’s credit card in 2-3 days. Further, Ms French says she was informed that the Application which had been lodged would be rejected on the basis that the incorrect category had been selected at the time of lodgement. Ms French was told that she would be required to re-lodge the Application in the appropriate form.
An email was sent to Ms French by the FCC Registry on 29 April 2021 at about 5.09pm reiterating this information. The email received by Ms French stated, inter alia, that the Application was rejected because it did not comply with Court Rules, the fee was incorrect, the document type that should have been selected was ‘Application – Fair Work Division’ and if any fees had been paid with the lodgement, that they would be refunded. The email is marked Annexure ‘DMF-1’ and is attached to Ms French’s affidavit affirmed on 1 July 2021.[8]
[8] French Affidavit, para 11, 12, 13
Ms French deposes to having re-lodged the Application and Form 2 on the eLodgment portal at about 5.36pm that same day, 29 April 2021. Ms French says that she took a ‘screen shot’ of the relevant page on the eLodgment portal to demonstrate that the Application and Form 2 were successfully lodged with the Court. Annexure “DMF-2” of her affidavit attaches the said screen shot, however the annexure is entirely illegible.[9]
[9] French Affidavit, para 15
In her affidavit, Ms Wiles says that on the following day, 30 April 2021, she received a phone call from the FCC Registry. The Registry officer and Ms Wiles had a conversation about the unsuccessful lodgement attempt which occurred the day prior. Ms Wiles says she was advised that the documents had been subsequently lodged in the correct form and that the matter was awaiting allocation. Ms Wiles says that she presumed, by virtue of that discussion, that the Application and Form 2 had been successfully filed with the Court.[10]
[10] Wiles Affidavit, para 17 and 18
Ms French says that between 30 April 2021 and 6 May 2021, upon instruction from Ms Wiles, she regularly logged in to the FCC eLodgment portal to check the status of the Application. On each occasion the application was identified as “Unprocessed Awaiting Allocation”.[11]
[11] French Affidavit, para 16
On 4 May 2021, Ms French called the FCC Registry to seek an update on the filing of the documents which had been lodged by her on 29 April 2021. Ms French says that the Registry officer advised her that the Application was still awaiting allocation to a Judge, and that an email would be circulated once the matter had been duly allocated.[12]
[12] French Affidavit, para 17
On 6 May 2021 Ms Wiles received a phone call from a Registry officer of the FCC. During the conversation, Ms Wiles was informed that the matter had not been allocated to a Judge as the Application was filed at 5.36pm on 29 April 2021, not before 4.30pm, and therefore the Application was not lodged within the prescribed 14 day time period. The Registry officer advised Ms Wiles that if the Applicants intended to proceed with the general protections claim, then an Amended Application or a new Application, including an application for an extension of time, would need to be lodged.
Ms French also received an email on 6 May 2021 which confirmed that the Application had been rejected as it did not comply with Court Rules and explained that the Applicants may request an extension of time to refile. A copy of this email is attached to Ms French’s affidavit and is marked Annexure ‘DMF-3’.[13]
[13] French Affidavit, para 18, Wiles Affidavit, para 22
Ms Wiles prepared a new Application which sought an extension of time and the new Application and Form 2 were lodged by Ms French on 6 May 2021. At 3.01pm that day,
Ms French received an email from the FCC Registry which again stated that her lodgement had been rejected as it failed to comply with Court Rules. This email is marked as Annexure ‘DMF-4’ in Ms French’s affidavit.[14][14] French Affidavit, para 21
Upon receipt of that email, Ms French contacted the FCC Registry to seek an explanation as to which Court Rules the Application did not satisfy. In response, Ms French was told that the Application was rejected on the grounds that it did not include the Second Applicant and the Respondent in the lodgement.[15]
[15] French Affidavit, para 24
Thereafter, Ms French re-lodged the Application and Form 2. The said Application sought interlocutory orders for an extension of time to file the Application and accompanying Form F2. At 4.59pm on 6 May 2021, Ms French received an email from the FCC registry confirming that the lodgement had been accepted and processed.
The relevant legislation and principles concerning extension of time
An application to the Commission to deal with a general protections dismissal dispute under s.365, may be initiated by the person being dismissed or an industrial association that is entitled to represent the industrial interests of the person. For present purposes, I am satisfied that the First Applicant is an industrial association who is entitled to represent Ms Marks.
The Court does not have jurisdiction to hear a general protections court application under s.368 of the FW Act unless a s.369 Certificate has been issued. As stated earlier the Commission has issued a certificate, so this criteria is satisfied.
Section 370(a)(ii) specifies that a general protections court application must be made within 14 days after the day the FWC Certificate has been issued “or within such period as the court allows on an application made during or after those 14 days”. Plainly, the language of
s. 370(a)(ii) vests in the Court a broad general discretion to grant an extension of time outside of the 14 day time period.Section 370 also contains a note as follows:
Note:For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
Brodie-Hanns v MTV Publishing Ltd was a case which concerned an application for the grant of an extension of time under s.170EA of the Industrial Relations Act 1988 (Cth). Marshall J articulated the following principles as being relevant to the exercise of the Court’s discretion to extend time beyond the prescribed period:
(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.
In Transport Workers Union v School Bus Contractors [2011] FMCA 28, Lucev FM (as his Honour then was) held that the Commonwealth Parliament did not intend for the Brodie-Hanns principles to be binding or exhaustive and that the note in s.370(a)(ii) ought not to be considered as being part of the statute. However, his Honour observed that the Brodie-Hanns principles have been regularly applied by this Court and do constitute a relevant guide to the criteria to be applied[16].
[16] Transport Workers Union v School Bus Contractors [2011] FMCA 28 at [42]
Similarly, in Clarke v Service to Youth Council Inc, White J held that it is sufficient to treat the note as a reference to the kinds of considerations which may be relevant.[17]
[17] Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Consistent with authority and the well-established practice of this Court and the Federal Court, it is appropriate to consider the current application within the Brodie-Hanns framework but noting that the Court’s discretion is broad and not constrained by only those factors.
CONSIDERATION
Explanation for the delay
I do not need to consider whether ‘special circumstances’ exist in order to exercise my discretion to extend time. Rather the court should focus on whether there is an acceptable explanation for the delay ‘which makes it equitable to extend’.[18]
[18] Brodie-Hanns v MTV Publishing Ltd [1995] 67 IR 298
I have outlined the circumstances pertaining to the late filing of the Application and Form 2 in detail above. The chronology of events is set out transparently in the affidavits of Ms Wiles and Ms French. That evidence has not been challenged.
In essence, the Applicants attribute their failure to filing the Application and Form 2 on time to an error on the part of Ms French, occasioned by her unfamiliarity with the FCC eLodgment system. Ms French is an officer of the union which represents the Second Applicant. It was her error, rather than the error of the dismissed employee Ms Marks, which caused the prescribed time limit to be missed.
In considering whether an error by an employee’s representative (so-called “representative error”) is relevant to the exercise of discretion to extend time, a Full Bench of the Australian Industrial Relations Commission in Clarke v Ringwood Private Hospital[19] observed that:
... the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for the delay:
(1) Depending on the circumstances, representative error may be a sufficient reason to extend time within which an application for relief may be lodged...
(2) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant...
(3) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(4) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted...”
[19] Clarke v Ringwood Private Hospital [1997] 74 IR 413
It is not contested that Ms Marks provided the First Applicant union instructions to prepare and file the Application and Form 2 with the Court. I accept that Ms Marks was attentive and responsive in giving the First Applicant instructions once the FWC Certificate had been issued.[20] The affidavit evidence does not suggest that Ms Marks prevaricated or contributed to any delay in commencing proceedings. Ms Marks would have had a reasonable expectation that her instructions would be actioned and, in the circumstances, I accept that Ms Marks was blameless in relation to the delay.
[20] Wiles Affidavit, para 10
The principle that an affected person should not be disadvantaged by the error or oversight of their representative is well established. In Hunter Valley Developments Pty Ltd v Cohen, Wilcox J stated that it would be erroneous to treat the fault of the solicitors as if it were the direct fault of the client.[21] In Transport Workers Union v School Bus Contractors, the Court held that an error by a union representing an employee may be properly described as representative error even though, as here, the union is itself an applicant in the proceedings[22]. Ms Marks should not be disadvantaged in pursuing her claim against Forever New because of the error of Ms French.
[21] Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 at [351]
[22] Transport Workers Union at [54]
As to whether the First Applicant union has itself provided an acceptable explanation for its delay in filing the Application, I am satisfied that it has. The Applicants were not oblivious to the limitation period. The Applicants acknowledge their awareness of the operation of
s. 370(a)(ii) and that this provision required the Application and Form 2 to be lodged with the Court by Thursday, 29 April 2021.[23] The evidence demonstrates that Ms French took steps to file the application before the time limit and did in fact succeed in lodging a document albeit in the incorrect manner.[23] Applicants’ Outline of Submissions filed 2 July 2021, para 4
The Respondent says that the Applicants should not have waited until 3.53pm on
29 April 2021, 37 minutes before the 14 day deadline, to attempt to file the documents, especially considering Ms French was not well acquainted with the FCC eLodgment portal.[24] Hence, it is the Respondent’s position that steps should have been taken to file the claim earlier.[24] Respondent’s Outline of Submissions filed 16 July 2021, para 4
The point is well made by the Respondent that the Applicants have only themselves to blame for leaving the filing until the eleventh hour. Any party to litigation who leaves such important matters to the last minute runs the risk that a time limit will be missed and that a Court will not exercise discretion in their favour. There is certainly no automatic right to an extension of time and prima facie statutory time limits should be enforced.
However, in the circumstances of this case, I am satisfied that the delay arises from inadvertent representative error caused by the First Applicant, through the agency of Ms French. I am persuaded on the evidence that had Ms French not made an administrative error due to her unfamiliarity with the e-Lodgment system, in all likelihood the application would have been made within time.
Action taken by the Applicants to contest the termination
It is not disputed by Forever New that Ms Marks took steps to contest the termination of her employment. This is not a case where an applicant has been idle and seeks to agitate a claim only after the time limit for commencement has passed.
There is evidence that Ms Marks has actively agitated her claim. She engaged the union to contest her dismissal. Ms Marks pressed her objection to the Respondent’s conduct by filing a General Protections application in the Commission on 19 March 2021. Then, following an unsuccessful conciliation held on 12 April 2021 and a FWC Certificate being issued on
15 April 2021, Ms Marks instructed the union to file an Application and Form 2 in the FCC.Furthermore the steps taken by the union to correct the administrative error of Ms French and to regularise the filing of the Application are matters which I take into account. As soon as the error came to the attention of the union, there was a flurry of activity to set things right and the union actively engaged with the Court’s registry. I am left in no doubt that the Applicants contest the dismissal of Ms Marks and wish to prosecute the substantive claim.
Prejudice to the Respondent
The Applicants submit that the seven day delay in filing the claim has not caused any, or at least very minimal, prejudice to the Respondent.[25] In its submission, the Applicant relies on Carfoot v SAC Sydney Archdiocese t/as St Vince De Paul Society, where an extension of time in a general protections application was granted after it was found that any prejudice from a delay of five days in filing material would be minimal.[26]
[25] Applicants’ Outline of Submissions filed 2 July 2021, para 9
[26] Carfoot v SAC Sydney Archdiocese t/as St Vince De Paul Society [2010] FW Act 4080
The Respondent concedes that the late lodgement of the Application has not caused it any prejudice, but notes that the absence of any prejudice should not be the basis to warrant an extension of time. That is a correct statement of principle. In the absence of other factors weighing in favour of the applicants the mere absence of prejudice to a Respondent would not ordinarily move a Court to exercise discretion.
Merits of the substantive application
The Applicants submit that the Points of Claim attached to the Form 2 filed with the Court on 6 May 2021 deal in great detail with the alleged contraventions by Forever New against
Ms Marks, with respect to her dismissal. The Points of Claim allege, amongst other things, multiple contraventions of sections 340 and 351 of the Act.The Applicants also submit that in a general protections proceeding the Respondent bears the onus to prove that the dismissal was not taken for a prohibited reason or reasons which include prohibited reasons. The gist of the Applicants’ submission is that the Application inherently has merit as the claim has not yet been contested or challenged and in the absence of evidence the Court should not regard it as unmeritorious.
In response, the Respondent says that Ms Marks’ claim has no merit and submits that Forever New did not dismiss Ms Marks for any prohibit reason(s), but that her position was made redundant due to an organisational restructure.[27]
[27] Respondent’s Outline of Submissions filed 16 July 2021, para 4
Primary regard should be directed to the circumstances which have caused the claim to be lodged out of time, rather than the merits of the substantive application – unless the substantive claim is plainly unmeritorious or vexatious. In Clarke v Service to Youth Council Incorporated White J held that:
34.Given the application for the extension of time is being dealt with as a preliminary issue, it is not practical for the Court to form a view as to the merits of these competing positions. Accordingly, I consider that this is not a case in which the Court’s assessment of the merits of the applicant’s claim can be a significant consideration. I can do no more than accept that the applicant may have an arguable claim and that, if the extension of time is not granted, she will not be able to pursue that claim.[28]
[28] Clarke v Service to Youth Council Incorporated [2013] FCA 1018
The Applicants have filed a claim which is 109 paragraphs in length, and which raises various allegations regarding the dismissal of Ms Marks by Forever New. The claim is pleaded in a fairly conventional way and it alleges the essential ingredients of a general protections claim, namely adverse action (dismissal) and that the Respondent was actuated by prohibited reasons (exercise of workplace rights and discrimination). It alleges contraventions of the FW Act and seeks relief in the form of declarations, compensation and civil penalties. I need not embark on a detailed consideration of the substantive case[29] but it is typical of the general protections claims which routinely fall to be determined by this Court. The pleaded claim is at least arguable and with the benefit of the reverse onus which falls on the Respondent by operation of s 361 of the FW Act, the claim has at least some prospect of success. On its face the claim is not so devoid of merit so as to warrant a refusal to extend time.
[29] Kyvelos v Champion Socks Pty Ltd (AIRCFB) Print T2421
Fairness
Both the Applicants and the Respondent agree that the consideration of fairness between the applicant and other persons in a like position is a neutral consideration.
CONCLUSION
The Applicants bear 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. Taking all relevant matters into account, I am satisfied that this is an appropriate occasion for that discretion to be exercised in favour of the Applicants.
Upon arriving to this decision, I have carefully considered the following:
(a)Ms Marks was blameless in causing the delay;
(b)the application was lodged outside of the statutory time period due to the representative error of Ms French;
(c)I consider the attempts made to file the documents and to subsequently correct and regularise the filing, stands as an acceptable explanation for the delay;
(d)Ms Marks has taken steps to contest her termination, including by filing a General Protections application in the FWC and instructing the First Applicant to lodge the Application and Form 2 in this Court;
(e)there is no prejudice to Forever New if an extension of time is allowed;
(f)the prima facie case appears to be arguable, but the Court does not need to place much weight on the Points of Claim filed; and
(g)the seven day delay was not substantial.
Having regard to all of the above, the Court is satisfied that it would be fair to grant an extension of time for the Applicants to file the Application and Form 2.
Accordingly, I will make orders to the following effect:
(a)Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) the time for making a general protections court application shall be extended until 6 May 2021;
(b)The Applicants have leave to file and serve their Application dated 6 May 2021 and Form 2 – Claim alleging dismissal in contravention of a general protection dated 29 April 2021;
(c)The Respondent shall file and serve a Response and Points of Defence by 1 July 2022; and
(d)
The Application shall be listed for a first directions hearing before me on
6 July 2022 at 9.30am.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate: Nada Govedarica
Dated: 20 May 2022
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