Donegan v Good Games Pty Ltd
[2022] FedCFamC2G 1050
Federal Circuit and Family Court of Australia
(DIVISION 2)
Donegan v Good Games Pty Ltd [2022] FedCFamC2G 1050
File number(s): SYG 1478 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 December 2022 Catchwords: INDUSTRIAL LAW – application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) for extension of time within which to make a general protections court application – whether applicant has a meritorious case if extension granted – whether applicant has reasonable explanation for delay – extension granted. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 365, 368, 370(a)(ii) Cases cited: Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Clarke v Service to Youth Council Inc [2013] FCA 1018
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 8 December 2022 Place: Sydney Counsel for the Applicant: Mr J Pen Solicitor for the Applicant: WorkLawyers Counsel for the Respondent: Mr J Raftery Solicitor for the Respondent: Pivotal Law ORDERS
SYG 1478 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MITCHELL DONEGAN
Applicant
AND: GOOD GAMES PTY LTD ABN 31 614 965 329
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 DECEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s 368(3)(a) of the FW Act on 21 September 2022 within 21 days of the day on which that certificate was issued.
2.The matter be referred to a Registrar for mediation on a date to be fixed by the Registrar pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.If mediation is unsuccessful the matter be relisted for a directions hearing at a time and date to be fixed.
4.The parties have liberty to apply on such notice as the circumstances warrant.
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
introduction
The applicant applies for an order under s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) permitting him to make a “general protections court application” to this Court 7 days beyond the day by which the applicant was required to have made that application.
The expression “general protections court application” is defined in s 368(4) of the FW Act as an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Part 3-1 of the FW Act. An employee cannot make a general protections court application in relation to a dismissal unless the employee first applies to the Fair Work Commission (FWC) under s 365 of the FW Act to deal with the dispute, and the FWC issues a certificate under s 368(3)(a) of the FW Act certifying it is satisfied that all reasonable attempts to resolve the dispute, other than by arbitration, have been, or are likely to be, unsuccessful. Additionally, under s 370(a)(ii) of the FW Act an employee cannot make a general protections court application unless it is made within 14 days after the FWC issues a certificate under s 368(3)(a) of the FW Act, or within such period as the Court allows on an application made during or after those 14 days.
The applicant in this case applied to the FWC under s 365 of the FW Act for the FWC to deal with a dispute that arose as a result of the respondent’s having dismissed the applicant. The FWC issued a certificate under s 368(3)(a) of the FW Act on 21 September 2022 (FWC certificate). That meant that the applicant had to make a general protections court application to this Court in relation to his dismissal by 5 October 2022. Instead, the applicant applied on 12 October 2022.
Principles
The principles I should apply in determining this application are those identified by Marshall J in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s 370(a)(ii) of the FW Act. His Honour said:[1]
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.
[1] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, at pages 299-300
Also relevant is the following passage from the judgment of White J in Clarke v Service to Youth Council Inc:[2]
[2] Clarke v Service to Youth Council Inc [2013] FCA 1018, at [7], [8]
Brodie-Hanns was decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553):
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.
Similarly, Toohey and Gummow JJ said (at 547):
The discretion … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.
(Citation omitted.)
Section 371(2) of the FWA is different from the legislative provision considered in Taylor. In addition, the 14 day period which it fixes is much shorter than the three year period which the plaintiff sought to extend in that case. Nevertheless, I consider that the observations in Taylor just quoted are pertinent in the present context.
I will consider each of the factors Marshall J identified in Brodie-Hanns.
factors
Explanation for delay
The evidence of the reasons for the applicant’s not having filed the application by 5 October 2022 is to be found in the affidavit of Ms Badger made on 10 October 2022. Ms Badger is a paralegal employed by WorkLawyers, the applicant’s lawyers. On 23 September 2022 Ms Badger spoke with the applicant. The applicant told Ms Badger that the FWC had just issued a s 368 certificate, and he requested WorkLawyers represent him in the proceeding he wished to institute in this Court. Ms Badger informed the applicant that he had to commence proceedings by 5 October 2022, and requested that the applicant provide the “relevant documents as soon as he could”. The applicant said he would do so by 26 September 2022, but he did not do so until he sent an email to Ms Badger at 8:34 pm on 29 September 2022. The applicant attached documents and confirmed the applicant “had made the requested trust account deposit”. Although Ms Badger noticed she had received an email from the applicant, she did not review it closely because she was working on unrelated urgent matters until 10 October 2022. On that day Ms Badger had a conversation with Mr Bolwell, the principal solicitor of WorkLawyers, in which Ms Badger and Mr Bolwell agreed that “the filing of proceedings was out of time”.
The applicant submits that the proceeding was filed out of time through no failure of his own. The respondent, on the other hand, although accepting that the applicant’s lawyers were at fault in filing the proceeding out of time, submitted the applicant could have done more. I agree the applicant could have done more in seeking confirmation that the proceeding had been filed. I do not agree, however, that the applicant acted unreasonably in not doing so. The applicant had done all he was reasonably required to do to permit his lawyers to commence the proceeding by 5 October 2022; and the inference is available to be drawn, and I find, that the applicant reasonably expected that his lawyers would and did file the proceeding by 5 October 2022.
Action taken by applicant to contest termination
There is no evidence that the applicant has contested his termination, other than applying to the FWC and, now, to this Court. It is reasonable to infer from these facts that the applicant has actively contested his dismissal by the respondent.
Prejudice to respondent
The respondent submits it will be prejudiced if an order extending time is made because there is on foot two proceedings brought by two other former employees of the respondent who make claims that substantially overlap with the claims the applicant makes in this proceeding. The respondent says that both claims were the subject to an unsuccessful court-ordered mediation, and if the applicant had lodged his application by 5 October 2022, he would have participated in the same mediation.
I do not accept that submission. The orders referring the two other proceedings for mediation were made on 8 August 2022, well before 21 September 2022 when the FWC issued the FWC certificate, and there is no basis for finding that, had the applicant commenced the proceeding by 5 October 2022, arrangements would or could have been made to hold one mediation in relation to the applicant and the other two former employees’ claims.
Further, the mediation that did occur did not result in the parties resolving their differences. Given that the applicant’s and the two other former employees’ claims substantially overlap, there is no basis for finding that, had the applicant participated in the mediation, there would have been a tangible prospect that the applicant and respondent would have resolved their differences.
Merits of application
The respondent submits that the applicant’s claim under s 340(1) of the FW Act is hopeless. To understand the grounds on which the respondent makes this submission, it will be necessary to describe the applicant’s claims; and they are as follows:
(a)From around 2 November 2020 until 2 May 2022 the applicant was employed by the respondent as a casual retail worker.
(b)On or about 7 March 2022 the applicant made a complaint to the respondent’s managing director, and to the respondent’s operations manager, about the work performance and behaviour of the applicant’s manager at that time, Mr Carter.
(c)The complaint referred to in (b) constituted the exercise of a workplace right pursuant to s 340(1)(a)(ii) of the FW Act.
(d)On about 30 April 2022 the applicant was stood down after the respondent’s operations manager harassed and abused him.
(e)On 2 May 2022 the applicant received a letter from the respondent terminating his employment. The letter stated that the applicant had not used his “best endeavours to promote and protect the interest of the employer”.
The respondent relies on an affidavit made by Ms Challinor, the respondent’s lawyer, who deposes to matters “based upon instructions from the respondent”. Ms Challinor deposes to matters that include the following:
(a)Following a complaint on 7 March 2022 the respondent’s managing director commenced an investigation and the manager was relieved from his day-to-day duty to remotely manager the Gosford store. That resulted in the employees of the Gosford store having to report to the operations manager until a new assistant manager was recruited.
(b)On 28 April 2022 a colleague of the applicant was appointed to the role of assistant manager.
(c)On 30 April 2022 senior management became aware that the former store manager and the operations manager were being removed and blocked from accessing or viewing the respondent’s Facebook community page. Ms Challinor annexes to her affidavit a copy of a screenshot of the removal and blockage.
(d)The former store manager asked the applicant to stop removing the Facebook profiles. The applicant refused to comply. The applicant became agitated and was asked to finish work for the day.
(e)On 30 April 2022, under the name of the assistant manager, a message was posted to the Facebook page purportedly by the applicant indicating that the Gosford store was closed and staff had been fired. These statements were untrue.
(f)On review “by the management of the respondent, it was determined that the applicant’s conduct regarding the respondent’s Facebook did not promote and protect its interests”; and this “determination resulted in the decision by the respondent to end the applicant’s employment”.
The applicant submits there is merit in his claims based on s 340(1) of the FW Act. Ms Challinor deposes to matters that appear to accept that the applicant had made a complaint, and that the respondent had taken adverse action against the applicant. Further, the respondent bears the onus of proving that it terminated the applicant’s employment for the reason, or for reasons that did not include as a substantial factor, the applicant’s having made a complaint. Although the applicant accepts that the screenshots afford some evidence that the respondent terminated the applicant’s employment for the reasons stated in the letter of termination, the applicant submits the screenshots do not show the applicant does not have reasonable prospects of successfully resisting a finding that the respondent terminated his employment for the reason stated in the termination letter. The respondent, on the other hand, relies not only on the screenshot and the message, but the applicant’s electing not to file any evidence in relation to the screenshot and message.
There is some force in the respondent’s submissions. I am not satisfied, however, that, on the basis of the screenshot and message, when read together with Ms Challinor’s affidavit, the applicant would not have substantial prospects of resisting a finding that the respondent did terminate his employment for the reason stated in the termination letter. As counsel for the applicant submitted, Ms Challinor’s affidavit does not identify who, on behalf of the respondent, made the decision to terminate the applicant’s employment, and what material the decision maker considered in deciding that the respondent would terminate the applicant’s employment. Further, Ms Challinor does not identify who within the respondent provided her the instructions, or the person or persons who formed part of the “management of the respondent” Ms Challinor deposes investigated the incident that is said to have occurred on 30 April 2022. Finally, it is not readily apparent that the reason given in the termination letter - that the applicant had not used his “best endeavors to promote and protect the interest of the employer” - is directed to the incident that is said to have occurred on 30 April 2022.
Considerations of fairness
Neither party has identified any person who is in a similar position to that of the applicant. In those circumstances, there is no issue of unfairness between the applicant and such persons if an order were to be made extending the time by which the applicant may make a general protections court application.
Other matters
The respondent submits it is relevant that the applicant failed to serve the respondent with the application and Form 2 he filed until some 16 days after he filed these documents. Unexplained, the applicant’s delay in serving the application and Form 2 might be worthy of criticism. It is not relevant, however, to whether I should exercise the discretion conferred by s 370(a)(ii) of the FW Act.
Conclusion and disposition
I am satisfied it is appropriate to permit the applicant to make a “general protections court application” to this Court within 21 days of the day on which the FWC issued the applicant the FWC certificate. I will so order.
After I reserved judgment the parties submitted proposed consent orders that the proceeding be referred to mediation. I will also make my usual orders referring a matter to mediation. The proposed consent orders also provide that if the parties do not resolve their differences at the mediation this proceeding should be consolidated with the proceeding the two other former employees of the respondent have commenced in this Court. It is unnecessary to make this order at this stage of the proceeding.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 December 2022
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