Dr T v State of Victoria (Department of Energy, Environment and Climate Action)
[2024] FedCFamC2G 702
•7 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Dr T v State of Victoria (Department of Energy, Environment and Climate Action) [2024] FedCFamC2G 702
File number: MLG 1387 of 2023 Judgment of: JUDGE RILEY Date of judgment: 7 August 2024 Catchwords: INDUSTRIAL LAW – Fair Work – application for an extension of time in which to file a general protections claim – applicant not legally represented – claim not clearly articulated – claim unlikely to be successful. Legislation: Fair Work Act 2009 (Cth) ss.340(1), 341, 343, 344, 351, 360(1), 361, 370(a)(ii) Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671Division Division 2 General Federal Law Number of paragraphs: 49 Hearing date: Determined on the papers Date of last submission: 29 April 2024 Place: Melbourne Advocate for the Applicant: In person Solicitor for the First and Second Respondents: Victorian Government Solicitor’s Office ORDERS
MLG 1387 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DR T (A PSEUDONYM)
Applicant
AND: STATE OF VICTORIA (DEPARTMENT OF ENERGY, ENVIRONMENT AND CLIMATE ACTION)
First Respondent
SIMONE WARNER
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
7 AUGUST 2024
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 2 August 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note:This copy of the Court’s Reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application under s.370(a)(ii) of the Fair Work Act 2009 (“the Act”) for an extension of time in which to file an application alleging dismissal in contravention of the general protection provisions of the Act.
The time limit in s.370(a)(ii) of the Act is 14 days after the Fair Work Commission has issued a certificate under s.368(3)(a) of the Act, or such further period as the court allows. In the present case, the certificate was issued on 2 June 2023. Consequently, the applicant had until 16 June 2023 to file his application in this court. In fact, he filed the application on 2 August 2023. That was 47 days late.
A registrar made orders on 12 September 2023 for the parties to file written submissions and any evidence. The registrar also ordered that the application for an extension of time be determined on the papers not before 7 November 2023. It is unclear whether those orders were made by consent. In any event, as far as I am aware, none of the parties took issue with them.
On 26 October 2023, orders were made by consent in chambers slightly extending the times for filing and judgment.
The parties all filed written submissions. None of the parties filed any affidavits. However, the applicant attached a number of emails to his written submissions. The respondents did not object to those emails being treated as evidence.
When I began to write the judgment, I realised that the applicant had not addressed an important issue in an extension of time application, being the prospects of success of the underlying application. As the applicant was not legally represented, I listed the matter for a directions hearing on 30 November 2023.
In that hearing, I explained to the applicant the need for him to address the merits of the underlying application. We also discussed the possibility of the applicant obtaining legal advice. He told the court that he would seek legal advice from Justice Connect. At the applicant’s request, the times for the parties to file affidavits and submissions were extended to March and April 2024. It was ordered by consent that the extension of time application would be determined on the papers.
The parties filed further written submissions, but no affidavits. The applicant did not appear to have had the benefit of legal advice.
BACKGROUND
The applicant, Dr T, was employed as a Research Scientist – Machine Learning. He said in his Form 2 that his employer was Agriculture Victoria, AgriBio. In his application, Dr T named “Agriculture Victoria, AgriBio” as the first respondent. However, a registrar ordered that the title of the proceeding be amended so that the name of the first respondent is “the State of Victoria (Department of Energy, Environment and Climate Action)” (“the Department”). The second respondent is Simone Warner, who Dr T described in his application as “Head of Agriculture Victoria (AgriBio)”. However, in her letter dismissing Dr T, Dr Warner described herself as “Head, Agriculture Victoria Research”.
It appears that Dr T worked for the Department from October 2019 until he was dismissed by Dr Warner with effect from 30 March 2023. The dismissal letter indicates that:
(a)Dr T was on a fixed term contract which was due to expire on 30 March 2023; and
(b)he was paid in full up to and including 30 March 2023.
According to his Form 2:
(a)Dr T was on annual leave from 16 May 2022 to 11 July 2022;
(b)during this annual leave, he went overseas;
(c)Dr T’s father was taken to hospital prior to 11 July 2022;
(d)Dr T remained overseas from 12 July 2022 until 28 July 2022 to care for his father;
(e)Dr T made a number of unsuccessful attempts to inform his manager;
(f)Dr T attended to his work tasks while overseas;
(g)immediately upon returning to Australia, he informed his manager that he had to stay overseas for longer than initially planned, because of his responsibilities as a carer; and
(h)the employer alleged misconduct and terminated his employment.
According to the respondents’ written submissions:
(a)Dr T was absent from work without authorisation from 12 to 26 July 2022;
(b)he did not contact the Department during this period;
(c)the Department was unable to contact him during this period;
(d)the Department arranged for the police to conduct a welfare check during this period;
(e)even if Dr T was working while overseas between 12 and 26 July 2022, he did not obtain approval to work remotely while overseas so was in breach of his employment contract;
(f)Dr T’s employment was terminated because he was found to have engaged in misconduct following an external independent investigation; and
(g)the investigation found that Dr T was absent from work without authorisation between 12 and 26 July 2022.
MATERIAL RELIED UPON
Dr T relied upon:
(a)his application filed on 2 August 2023;
(b)the Form 2 filed on 2 August 2023;
(c)his written submissions filed on 5 October 2023;
(d)his further written submissions filed on 28 March 2024; and
(e)his submissions in reply filed on 29 April 2024.
The respondents relied upon:
(a)their written submissions filed on 6 November 2023; and
(b)their written submissions filed on 10 April 2024.
EXTENSION OF TIME CONSIDERATIONS
The matters to be taken into account in a considering an extension of time application are generally:
(a)the length of the delay;
(b)the explanation for the delay;
(c)any prejudice to the respondents; and
(d)the prospects of success of the underlying application.
The factors relating to the exercise of court’s discretion to extend time in matters such as this were described by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 as follows:
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.
LENGTH OF DELAY
As mentioned above, the application was filed 47 days late.
EXPLANATION FOR THE DELAY
Dr T concentrated in his submissions on the explanation for the delay. His explanation was, in summary, that he tried to file his application on the last date for filing, being 16 June 2023, but he was unable to do so because the registry staff did not give him the correct advice.
More particularly, Dr T said in his submissions filed on 5 October 2023 that:
After receiving the certificate from the fair work commissioner on 2nd of June, I noted I had only 14 days to apply to the federal court. I have attempted to get legal advice since I was uncertain about the correct jurisdiction to apply and which applications I have to submit. I eventually could get an appointment for legal advice, but unfortunately the given appointment was beyond the 14 days and was useless for me. Therefore, without having access to any legal advice, I have attempted a lot and did my best to find the correct jurisdictions and filling out the application forms based on the instructions that I have received from the court registry and submitted my applications within the time frame (14 days). However, something later happened which were out of my control and were totally dependent on the court staff to lodge my application. Any delay in lodgement of my application on the court system was out of my control. What was related to me I have done it within the time frame. All the matters were raised by the client service officers after 16th of June were not told me by the court registry staff before 16th of June. If these raised matters by the client service officers were not important, why they were raised later? If they were important, why I was not told at earlier time and at the right time? This long delay was result of the court staff actions and therefore they are responsible for the subsequent period of delay of the lodgement…
Dr T gave further details about the reasons for the delay in his written submissions filed on 5 October 2023 as follows:
(a)Dr T contacted the court’s National Enquiries Centre a “few times” prior to 16 June 2023 for advice on how to fill out the requisite application forms, however he received limited help;
(b)Dr T completed:
(i)an application; and
(ii)the Form 2,
(“the documents”) as best he could without legal advice;
(c)Dr T created an eLodgment account on an unspecified date, but he did not receive confirmation of his eLodgment registration before 5pm on 16 June 2023;
(d)in the absence of confirmation of his eLodgment registration, Dr T emailed the documents to the Federal Court Registry in Melbourne for filing at 10.10pm on Friday 16 June 2023;
(e)on 19 June 2023, the Registry confirmed they had received the documents, and a client services officer required Dr T to make four amendments to the documents for them to be accepted for filing, including that he sign the application;
(f)on 21 June 2023, Dr T sent an email to the Registry asking to be contacted by telephone because he had a few questions about his application and the requested amendments;
(g)following a telephone call with a Registry staff member, Dr T purportedly made the required changes and emailed the amended documents to the Registry on 26 June 2023;
(h)the same client services officer replied via email approximately 50 minutes later to again ask Dr T to sign the application, and to confirm the application could be backdated to 10.10pm on 16 June 2023, once accepted for filing;
(i)Dr T emailed the Registry on 29 June 2023 and requested to be telephoned because he was not clear on what the Registry required of him;
(j)following the telephone conversation, Dr T re-sent the documents on 30 June 2023 (“the amended substantive application”);
(k)a second client services officer replied to Dr T, confirming that once the filing fee was paid, the documents would be filed on his behalf;
(l)Dr T acknowledged receipt of that email and responded on 7 July 2023 requesting the Registry to email him the Application for Exemption of Fees form;
(m)a third client services officer replied on that date requesting further changes to be made and seeking clarification on the type of fee exemption Dr T was seeking (general or financial hardship);
(n)Dr T did not make the further requested amendments to his application;
(o)Dr T emailed the Registry on Saturday 15 July 2023, not responding to the contents of the email dated 7 July 2023, and stating that he had submitted his application on 16 June 2023 and again asked for the Application for Exemption of Fees form to be emailed to him;
(p)the Acting Judicial and Registry Services Team Leader emailed Dr T a weblink to the documents and an explanation of which documents to complete on Monday 17 July 2023;
(q)one week later, Dr T emailed the Registry requesting a phone call regarding his application for an exemption of fees;
(r)a series of messages were exchanged between Dr T and Registry staff about whether the Registry could be contacted by telephone;
(s)on 26 July 2023, Dr T emailed his completed application for exemption of fees to the Registry and Registry staff advised Dr T that he must resend the form with his substantive application attached;
(t)on 27 July 2023, Dr T emailed the Registry his application for exemption of fees and his amended substantive application;
(u)a fourth client services officer replied on the same date requesting six alterations to Dr T’s amended substantive application for the documents to be accepted for filing;
(v)Dr T responded saying that the amended substantive application had already been accepted and his present email was only in regard to the application for exemption of fees;
(w)on 28 July 2023, the Registry emailed Dr T requesting that he advise how much compensation he was claiming, and Dr T stated via return email that he could not provide an estimate of the compensation sought;
(x)on 28 July 2023, the Registry emailed Dr T to advise him they were finalising his application and to request that he amend the names of the respondents on his application and Form 2;
(y)Dr T sent amended documents to the Registry via email on 28 July 2023;
(z)on the same date, the Registry messaged to Dr T, again advising that he must provide reasons for the application being made out time, and that the application is considered received on the date of payment (not when Dr T emailed his application to the Registry on 16 June 2023);
(aa)Dr T responded just over an hour later advising that his substantive application was filed on 16 June 2023, and he did not understand why it was considered out of time;
(bb)on 31 July 2023, Dr T spoke to the Registry by phone and provided an amended application by email which included the reasons for late filing; and
(cc)Dr T’s application was accepted for filing on 2 August 2023.
In their written submissions filed on 6 November 2023, the respondents argued that:
7.Firstly, the Applicant was aware of the 14 day time limit to lodge his GP Court Application as it was stated in the FWC certificate dated 2 June 2023 and the Applicant acknowledged the same.5 This is confirmed in the Applicant’s submissions filed on 5 October 2023 (Applicant’s Submissions). However, the Applicant waited until 16 June 2023, the last day for filing his GP Court Application, to attempt to file his application. The Applicant has provided no reason for why he took little or no action in the preceding 2 weeks, other than to state that he was not able to get appointment for legal advice until after the due date for lodgement of his GP Court Application.
8.The Applicant’s Submissions state that the Applicant called the Court’s National Enquiries Centre (NEC) before 16 June 2023.6 However, the Applicant does not state when he called the NEC or provide evidence of same.
9.On 16 June 2023, the last day for filing his GP Court Application, the Applicant attempted to register for an e-lodgement account. He then emailed the Court’s registry (Registry) at 10:10pm in an attempt to file his GP Court Application.7 It is not clear at what time the Applicant attempted to register for an e-lodgement account and the Applicant has not provided any evidence regarding his attempt to register for an e-lodgement account and at what time this was done. It appears that registration approval was not given to the Applicant prior to 5pm on 16 June 2023. It is therefore likely that the Applicant attempted to register for an e-lodgement account close to the end of business hours on 16 June 2023.
10.To that end, the observations of her Honour Judge Jones in Potts v Kings Warehousing Administration Pty Ltd (Potts) are particularly relevant in the present circumstances:8
“The applicant relies on his unfamiliarity of court processes as a reason for delay. This is not an acceptable explanation. The overwhelming majority of persons who represent themselves are in the same position. The applicant demonstrated he was capable of contacting the registry of the court and accessing the relevant forms from the court’s website. His difficulty is that he failed to take these simple steps in a timely manner leaving these steps he ought to have taken until the day he was required to initiate these proceedings.”
11.Her Honour in Potts ultimately refused to grant an extension of time for the general protections for a self-represented litigant, where the delay was only 4 days, based on the lack of an acceptable explanation for the delay.
12.Secondly, the Applicant’s reliance on the lack of legal assistance is unreasonable in circumstances where he had nearly 3 months to seek legal assistance since the date on which his employment was terminated (23 March 2023).
13.Thirdly, the Applicant contributed to the significant delay of 47 days in the filing of his GP Court Application by failing to respond to the Registry in a timely manner on several occasions regarding the lodgement of his GP Court Application.
a.On 26 June 2023, [CW], Registry staff, wrote to the Applicant about the issues with his GP Court Application after the Applicant tried to resubmit it that day.9 Relevantly, [CW] stated he was able to ‘backdate [the Applicant’s] lodgement to the date [the Applicant] first emailed, provided [the Applicant] make the above amendment as soon as possible.’10 In that same email the Applicant was on notice about the filing fee for his GP Court Application. The Applicant replied to [CW’s] email three days later, on 29 June 2023.
b.On 30 June 2023, [NG], Registry staff, informed the Applicant that a filing fee had to be paid before his GP Court Application would be filed.11 On 7 July 2023, the Applicant responded by email and sought exemption from the filing fee despite being on notice about this issue since 26 June 2023.12
c.On 7 July 2023, [MS], Registry staff, wrote to the Applicant highlighting amendments required for his GP Court Application and asking him which fee exemption form he was after.13 More than a week later, on 15 July 2023, the Applicant responded by email asking for the fee exemption form or the link to the relevant form.14
d.On the next business day, 17 July 2023, [TB], Registry staff, wrote to the Applicant providing a link to the fee exemption forms and noted the difference between the two forms.15 The Applicant again responded a week later, on 24 July 2023 stating he had questions about the fee exemption application.16
14.On each occasion outlined in paragraph 8 above, the Applicant took at least several days to respond to the Registry’s email and progress the filing of his GP Court Application. While the Applicant submits that he called the NEC before the emailing the Registry,17 this does not justify the delay in his email responses in circumstances where:
a.The Applicant does not state when he called the NEC or provide evidence of same. The Respondents observe that the Applicant claims after [CW’s] email on 26 June 2023 he had called the NEC asking them to send him a fee exemption form.18 However, in the Applicant’s emails dated 29 and 30 June 2023 he did not mention the fee exemption application.19
b.It should have been obvious to the Applicant that emailing the Court’s registry would be the most efficient mean to progress the filing of his GP Court Application. Not only did the staff at the NEC advise the Applicant to email the Court’s registry when he called, on the Applicant’s own evidence the Court’s registry staff had in fact responded promptly each time the Applicant emailed them.
c.The Applicant does not have any trouble (or claim to have any trouble) accessing email facilities to communicate with the Registry.
15.Finally, the Applicant’s tendency to disregard court deadlines is further exemplified by the fact that he filed his submissions for the extension of time application two days later, and served the same six days later, than the date prescribed by the Court’s orders dated 12 September 2023.
FN 5: Page 1 paragraph 1.
FN 6: Applicant’s Submissions, page 1, paragraph 1 and page 2.
FN 7: Applicant Submissions, Evidence E1.
FN 8: [2014] FCCA 2671 at [37].
FN 9: Applicant’s Submissions, Evidence E6.
FN 10: Applicant’s Submissions, Evidence E6.
FN 11: Applicant’s Submissions, Evidence E9.
FN 12: Applicant’s Submissions, Evidence E10.
FN 13: Applicant’s Submissions, Evidence E11.
FN 14: Applicant’s Submissions, Evidence E12.
FN 15: Applicant’s Submissions, Evidence E13.
FN 16: Applicant’s Submissions, Evidence E14.
FN 17: Applicant’s Submissions, page 3.
FN 18: Applicant’s Submissions, page 3 (paragraphs labelled 7 and 8 on that page).FN 19: Applicant’s Submissions, Evidence E7 and E8.
I appreciate that the court’s filing systems can be challenging for unrepresented litigants. However, as Judge Jones noted in Potts v Kings Warehousing Administration Pty Ltd [2014] FCCA 2671 at [37], unrepresented litigants routinely manage the system. I do not accept that Dr T has a good explanation for the delay. It was his responsibility to work out how to file the appropriate documents, and to do so in a timely manner. He is clearly intelligent and capable, as he has a PhD in a scientific area, and worked in the area of machine learning. It is not credible that, with good will, he could not have managed to successfully navigate the court’s filing system.
OTHER ACTION TAKEN BY THE APPLICANT
The applicant did not claim to have taken action to contest the termination of his employment other than applying under the Act.
PREJUDICE TO THE RESPONDENT
In their written submissions filed on 6 November 2023, the respondents conceded that the delay has not caused them any prejudice. However, the respondents rely on Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 to submit that the mere absence of prejudice is an insufficient basis upon which to grant an extension of time. That is undoubtedly correct.
MERITS OF THE SUBSTANTIVE APPLICATION
In his Form 2 filed on 2 August 2023, Dr T said under the heading “Contravention(s) alleged” that:
I have complied with the law and my contract. Whenever I exercised my legal rights that the management did not like it, I faced with pressure and harassment. For example:
1)I lodged complaints because of experiencing bullying and workplace harassment.
2) Doing my responsibility as a carer.
I was on the annual leave from 16th of May to 11th of July 2022 and went to overseas. Unfortunately, my father taken to hospital before 11th of July 2022 and because no one was there to look after my father, I had to stay longer (12th of July to 28th of July 2022) and caring of my father.
Because all my attempts to inform my manager were unsuccessful, for the best interest of my employer, I returned to my work in the relevant period (12th – 28th of July 2022) to progress the assigned tasks.
As soon as I arrived in Australia, I informed my manager that what happened.
Although I explained to the manager and employer that I had to stay longer, because of doing my responsibility as a carer, the employer never dropped the raised alleged misconducts; instead, they terminated my employment. The letter of termination of employment is attached to my application as “Evidence A”.
Dr T did not expressly assert in his Form 2 that his employment was terminated for any particular reason.
In their written submissions filed on 6 November 2023, the respondents said:
19.The Applicant’s employment was terminated on 23 March 2023 because he was found to have engaged in misconduct following an external independent investigation. The Applicant was not dismissed for a prohibited reason or for reasons including a prohibited reason.
a.The external independent investigation found that the Applicant was absent from work between 12 – [28] July 2022 without authorisation, that he did not contact the First Respondent and he was unable to be contacted by the First Respondent during this period. The First Respondent had even contacted Victoria Police to conduct a welfare check on the Applicant during this two week period.
b.Even if the Applicant was indeed working when he was overseas between 12 – [28] July 2022 (which is disputed), it was contrary to the terms of the First Respondent’s flexible work policy and thus in breach of his employment contract. The First Respondent’s flexible work policy required the Applicant to obtain Secretary’s approval to work remotely overseas.
20.In any event, the Applicant’s fixed term contract was due to expire one week after his employment was terminated, and he was paid an amount equivalent to his full rate of pay up to and including the expiration of his fixed term contract. Accordingly, the Applicant has suffered no financial loss as a result of the termination and there is no real prospect of reinstatement given he was on a fixed term contract.
In his further submissions filed on 28 March 2024, Dr T said:
This application has been submitted to the Federal Circuit and Family Court of Australia because the Respondents have contravened the sections s.340, s.343, s.344, and s.351 of the FAIR WORK ACT.
Dr T repeated that allegation in his reply submissions filed on 29 April 2024. However, Dr T provided no details about how the respondents breached any of those sections. His submissions simply repeated his narrative about his need to care for a family member.
In any event, s.340(1) of the Act provides as follows:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Section 341 of the Act provides as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee – in relation to his or her employment.
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f)appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i)making a request under Division 4 of Part 2 2 (which deals with requests for flexible working arrangements);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
…
Section 343 of the Act provides that:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
(2)Subsection (1) does not apply to protected industrial action.
Section 344 of the Act provides as follows:
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standards; or
(b)make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
Subsection 351(1) of the Act provides as follows:
An employer must not take adverse action against a person who is an employee … of the employer because of the person’s … carer’s responsibilities ...
Section 360 of the Act provides as follows:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Subsection 361(1) of the Act provides as follows:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Dr T did not articulate the relevance of s.343 or 344 of the Act. I cannot see any way in which those provisions might apply to this proceeding.
It may be accepted that the termination of Dr T’s employment was adverse action under the Act. However, unfortunately for Dr T, he did not actually allege in his application that the respondents took adverse action against him for any particular reason. His application is vague. He said in his Form 2 that, when he exercised his legal rights, he was faced with “pressure and harassment”. However, “pressure and harassment” is not the same thing as termination of employment, which is the essence of Dr T’s claim.
Because Dr T did not actually allege in his application that his employment was terminated for any particular reason, the reverse onus provision in s.361(1) of the Act does not apply. The consequence is that the onus remains on Dr T to prove that his employment was terminated for a prohibited reason.
However, Dr T has not provided any evidence or submissions that the termination of his employment was for a prohibited reason. He said that he had to remain overseas to care for his father, potentially engaging s.351 of the Act. However, Dr T did not articulate that his employment was terminated for that reason.
Even if Dr T had articulated that claim, the respondents argued that Dr T’s employment was not terminated because of his carer’s responsibilities as such, but because he was absent from work without permission. Dr T, in effect, conceded that he was absent from work without permission. He said that he tried to contact his employer to explain what was happening, but was unsuccessful.
Being absent from work without permission for 16 days is a sound reason for termination.
That being so, and in the absence of a clearly articulated claim under the Act, it seems unlikely that Dr T would be successful in his underlying claim.
FAIRNESS
The applicant did not address this principle. The respondents submit that this is a neutral consideration.
Obviously, the court must be fair not only to Dr T, but also to the respondents. The first respondent is an organisation, and can be presumed to be able to withstand the stresses of litigation. The second respondent, on the other hand, is a natural person, who would no doubt be troubled by the continuation of this proceeding, even if it has poor prospects of success.
I gave Dr T the opportunity to obtain legal assistance through Justice Connect. However, he either did not avail himself of that opportunity, or Justice Connect did not consider that they could assist with this case.
ADDITIONAL ISSUE
The respondents submitted, and Dr T did not dispute, that he had actually been paid out for the full period of his contract, even though his employment was terminated a short time before the contract was due to expire anyway. In these circumstances also, it seems unlikely that Dr T could be successful in obtaining reinstatement, which he seeks.
CONCLUSION
Taking into account all of these matters, I consider that it would not be appropriate to extend the time for Dr T to file his application. While the delay was not particularly long, it was not adequately explained. Other unrepresented litigants, including many whose first language is not English, manage to file their documents within time. It was churlish for Dr T to blame registry staff for his own failure to manage the filing system of this court. Most importantly, Dr T’s claim, as presently drafted, has no prospect of success. While he might be able to tidy up the claim with the benefit of legal assistance, it seems unlikely that he would be able to succeed ultimately, given that he was absent from work without permission for 16 days.
Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 7 August 2024
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