Doe-Nunneh v Barlina Pty Ltd - [2010] FMCA 372

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOE-NUNNEH v BARLINA PTY LTD

[2010] FMCA 372

INDUSTRIAL LAW – Alleged unlawful termination – application to extend time to bring application – principles to apply – acceptable explanation for delay – prospects of success of proposed application.

Workplace Relations Act 1996 (Cth), ss.659(2)(e), 659(2)(f), 659(2)(g), 661, 663(6)

Brodie-Hanns v MTV Publishing Limited (1995) 67 ALR 298
Re Lewin; Ex parte He (2004) 133 IR 217
Zhang v The Royal Australian Chemical Institute (2005) 144 FCR 347
Tandoegoak & Anor v Marguerite Gerard Pty Ltd [2007] FMCA 621
Paciej v Austral Bowling Club [2007] FMCA 1144
Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490

Applicant:

ALBERT DOE-NUNNEH

Respondent:

BARLINA PTY LTD t/a CAGEMAKER

File Number:

BRG 100 of 2010

Judgment of:

Jarrett FM

Hearing date:

4 March, 2010

Date of Last Submission:

4 March, 2010

Delivered at:

Brisbane

Delivered on:

1 June, 2010

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

N/A

Solicitor for the Respondents:

N/A

Solicitors for the Respondents:

Chamber of Commerce & Industry Queensland Legal Sevices

ORDERS

The Application for extension of time to file and serve notice of appeal from Tribunal filed on 9 February, 2010 is dismissed.
The application filed on 9 February, 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 100 of 2010

ALBERT DOE-NUNNEH

Applicant

And

BARLINA PTY LTD t/a CAGEMAKER

Respondent

REASONS FOR JUDGMENT

On 9 February Mr Doe-Nunneh filed an application in which he seeks to invoke the Court’s jurisdiction under the Workplace Relations Act 1996. He represents himself in the proceedings.
The application refers in particular to “659 section 2” of the Act. It does not set out the grounds on which the application is made or the relief that is sought, but rather says: “The grounds of the application are set out and described in claim filed with this application.” There is no claim document as such filed with the application, but Mr Doe-Nunneh filed two affidavits, also on 9 February, 2010. Annexed to one is a letter that he wrote to the Australian Industrial Relations Commission dated 16 June, 2009 setting out his claim. Neither the affidavits nor the letter set out the relief he seeks. It is tolerably clear however, that he seeks redress for the termination of his employment with the respondent, although the form of the redress is unstated.
Mr Doe-Nunneh also filed an application for an extension of time within which to file his primary application. He used the form of application prescribed for seeking an extension of time within which to bring an appeal from a decision of the Administrative Appeals Tribunal pursuant to Order 53 rule 7 of the Federal Court Rules. Although that form is not apposite, nothing turns on the matter and Mr Doe-Nunneh’s intention is clear.
An extension of time is necessary because:
a)Mr Doe-Nunneh commenced an application for relief in the Australian Industrial Relations Commission claiming an alleged contravention of s.659 of the Act.
b)On 24 August, 2009 a Senior Deputy President of the Commission issued a certificate pursuant to s.650 of the Act certifying that the Commission was satisfied that conciliation between the applicant and the respondent was unsuccessful.
c)Mr Doe-Nunneh had 28 days from the date of the certificate within which to lodge a Notice of Election whereby he might elect to begin proceedings in this Court or the Federal Court for an order under s.665 of the Act in respect of the contraventions of s.659 of the Act alleged in the application.
d)A Notice of Election was executed by Mr Doe-Nunneh and lodged by him with the Commission on 29 August, 2009. He elected to commence court proceedings.
e)By s.663(6) of the Act the application to court must be made within 14 days after the lodgment of the Notice of Election, or within such period as a court allows on an application made during or after those 14 days.
f)Mr Doe-Nunneh’s application was lodged approximately five months after the lodgement of his notice of election.
At the first court date, both parties professed a preparedness to argue the extension application and these reasons relate to that application.
The application for the extension is opposed by the respondent on two bases. The first is that the applicant does not explain the delay in bringing the proposed application. The second is that the application has little, if any, prospects of success.
The matters to be taken into consideration by a court in deciding whether or not to exercise its discretion to extend the time for filing of an application such as that proposed by Mr Doe-Nunneh are those found in the decision of Marshall J in Brodie-Hanns v MTV Publishing Limited (1995) 67 ALR 298. His Honour considered the relevant principles to be that:
a)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.
b)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 any extension of time.
c)Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
d)The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
e)The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
f)Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
see also Tandoegoak & Anor v Marguerite Gerard Pty Ltd [2007] FMCA 621 and Paciej v Austral Bowling Club [2007] FMCA 1144.
The reasons for Mr Doe-Nunneh’s delay in commencing his application are not entirely clear from his affidavit material. In an affidavit deposed by him and filed on 9 February, 2010, he sets out his evidence (in the form of a letter) about the delay. In summary, he claims that he did not understand the Assessment of Merits Statement issued by the Commission in respect of his claim and that “impeded the momentum with which I would have liked to proceed with the application”. He says that he needed the advice of a lawyer.
I infer that Mr Doe-Nunneh had made an application for legal or financial assistance pursuant to the Unlawful Termination Assistance Scheme (UTAS) administered by the Department of Education, Employment and Workplace Relations. He says that he expected to hear from the Commission about the progress of the application and at “one point” he requested a lawyer “in keeping with my UTAS application”. He deposes: “I’ve just realized the processes of acquiring lawyer through the UTAS were not properly explained to me by the Registry even after receiving my application.” Finally, Mr Doe-Nunneh deposes:
Due to the multiplicity of issues raised in my complaint, and the Tribunal’s warning of that fact, as is perceived in the Assessment of Merit Statement written for the comprehension of the legal intelligential, I insisted on seeking a lawyer’s advice before proceeding. Unfortunately I have not been able to find any that I can afford.
In essence, therefore, it seems that Mr Doe-Nunneh claims that he did not understand the intricacies of the Commissions reasons and required legal assistance. He says that he applied for assistance through the UTAS process, but that was seemingly unsuccessful. He has not been able to retain a lawyer and obtain legal advice.
On the basis of those matters I am not satisfied that Mr Doe-Nunneh demonstrates a satisfactory explanation for the delay in commencing these proceedings. There is little particularity about the efforts that he has made to secure advice about the Commission’s reasons or to otherwise safeguard his rights while he sought the relevant advice.
There is no evidence of any particular prejudice on the part of the respondent if the extension of time is granted. That said, the absence of prejudice is not, without more, sufficient to grant an extension of time.
The prospects of success of the proposed application are relevant.
The nature of the application sought to be commenced by Mr Doe-Nunneh is ill-defined. It arises out of the cessation of his employment with the respondent. I say “cessation” because on the material before me there is a dispute about whether the applicant’s employment was terminated by the respondent or terminated by him. There is no doubt that it ceased.
Mr Doe-Nunneh’s complaint before the AIRC is annexed to an affidavit filed by him on 9 February, 2010. The Commission’s Assessment of Merit Statement is also in evidence. It is clear from the Assessment Statement that Mr Doe-Nunneh contended that the respondent had terminated his employment for a reason proscribed by the Act, namely that he had made a complaint against the respondent to a competent administrative authority (s.659(2)(e)) of the Act.
The AIRC did not accept the complaint on the basis that the only conclusion open was that there had been no complaint to anyone other than the respondent employer. No complaint had been made to a competent administrative authority and therefore the Act was not engaged.
Before me Mr Doe-Nunneh argued that there were three bases upon which the respondent had breached s.659(2) of the Act. First he relied upon s.659(2)(e) – recourse to a competent administrative authority, next he relied upon ss.659(2)(g) – failure to act reasonably and genuinely in negotiations for an ITEA. Finally he relied upon s.659(2)(f) – termination on the grounds of race or social group.
In support of his proposed application Mr Doe-Nunneh filed an affidavit annexed to which was his letter of complaint dated 16 June, 2009 addressed to the AIRC. By implication, he swears that the statements in the letter are true.
His evidence simply does not suggest that prior to his termination he had filed a complaint, or participated in proceedings, against the respondent involving alleged violation of laws or regulations or that he had recourse to competent administrative authorities. The only suggestion from Mr Doe-Nunneh is that he complained to his employer about the matters that were concerning him such as his work conditions and the “complications and security risks associated with the kind of assignments I was getting”.
To engage s.659(2)(e), there must be a complaint filed with a body other than the employer: Zhang v The Royal Australian Chemical Institute (2005) 144 FCR 347; Re Lewin; Ex parte He (2004) 133 IR 217. On Mr Doe-Nunneh’s claim or complaint there is no suggestion of such a complaint or recourse to a body outside of his employer. He did not suggest that there was such a complaint or recourse in his oral submissions.
There is no suggestion by Mr Doe-Nunneh that he was negotiating an ITEA with the respondent. An ITEA is an Individual Transitional Employment Agreement. It is defined in the Act as follows:
326 Individual transitional employment agreements
(1) An employer may make an agreement (an individual transitional employment agreement or ITEA) in writing with a person whose employment will be subject to the agreement.
(2) The agreement is not an ITEA unless:
(a) as at 1 December 2007 the employer employed at least one person whose employment with that employer was regulated by an agreement of a kind specified in subsection (3); and
(b) the person whose employment is to be subject to the ITEA:
(i) did not commence that employment more than 14 days before the day on which the ITEA was made, and had not previously been employed by the employer; or
(ia) did not commence that employment more than 14 days before the day on which the ITEA was made, and had previously been employed by the employer (not being employment that had ceased for the reason that, or for reasons that included the reason that, the employer would re-employ the person under an ITEA); or
(ii) is in an employment relationship with the employer and that employment relationship is regulated by an ITEA or an agreement of a kind specified in subsection (3).
Note: Subsection 583(1A) affects the operation of paragraph (2)(b) in the case of a transmission of business.
(3) The kinds of agreements for the purposes of paragraph (2)(a) and subparagraph (2)(b)(ii) are the following:
(a) an AWA within the meaning of Schedule 7A;
(b) a pre-reform AWA;
(c) a preserved individual State agreement within the meaning of Schedule 8;
(d) an employment agreement within the meaning of section 887.
There is simply no evidence, nor even a suggestion of evidence, in Mr Doe-Nunneh’s affidavit that there was any negotiation in connection with the making, signing, extending, varying or terminating an ITEA, let alone any refusal by the respondent to engage in that process.
Moreover, there is no suggestion by Mr Doe-Nunneh in his claim or complaint to the Commission (and consequently his evidence before me) that his employment was terminated by reason of his race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Although he mentioned this ground in his oral submissions after I stepped him through the provisions of s.659(2), there was nothing that Mr Doe-Nunneh could point to in support of his assertion that he was terminated by reason of his race, colour, national extraction or social origin.
If Mr Doe-Nunneh is granted the relevant extension of time and his application proceeds, he will have the benefit of s.664 of the Act which effectively casts an onus upon the respondent employer to prove that the termination was not for the proscribed reason contended for by the applicant. Notwithstanding s.664, as Wilson FM explained in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490 an applicant for relief for termination for a proscribed reason pursuant to s.659(2) of the Act must first raise facts sufficient to engaged the relevant head of proscription set out in that sub-section before s.664 can operate to cast the relevant onus of proof on the employer.
On the facts relied upon by the applicant (as set out in his two affidavits filed on 9 February, 2010), he does not engage ss.659(2)(e), 659(2)(f) or 659(2)(g).
Thus, even assuming that the applicant’s material establishes that he has a satisfactory explanation for not commencing his application within the relevant time period, I am not satisfied that his application has any real prospect of succeeding. In my view it is most likely bound to fail.
In my view the proposed application has such limited prospects of success that I should refuse the extension of time within which it might be commenced. Accordingly I order that the application seeking an extension of time filed on 9 February, 2010 be dismissed.
The primary application filed on 9 February, 2010 has not been filed within the time prescribed by s.663(6) of the Act and it too must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: Lynnette Chin

Date: 1 June 2010