George v Northern Health
[2012] FCA 379
•13 March 2012
FEDERAL COURT OF AUSTRALIA
George v Northern Health [2012] FCA 379
Citation: George v Northern Health [2012] FCA 379 Appeal from: Application for extension of time: Bency George v Northern Health (No 3) [2011] FMCA 894 Parties: BENCY GEORGE v NORTHERN HEALTH File number: VID 157 of 2012 Judge: NORTH J Date of judgment: 13 March 2012 Date of hearing: 13 March 2012 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr R Millar Solicitor for the Respondent: Middletons
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 157 of 2012
BETWEEN: BENCY GEORGE
ApplicantAND: NORTHERN HEALTH
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
13 MARCH 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for extension of time in which to file a notice of appeal is dismissed.
Note:The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 157 of 2012
BETWEEN: BENCY GEORGE
ApplicantAND: NORTHERN HEALTH
Respondent
JUDGE:
NORTH J
DATE:
13 MARCH 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an application for an extension of time within which to appeal from a judgment of the Federal Magistrates Court, delivered on 28 November 2011.
The applicant was employed by the respondent as a pharmacy technician on a nine month contract. Her employment was terminated after three months. She contended that the termination was as a result of a complaint she made about bullying by her line manager, Bob, whose real name is Mr Ihab Barsoum.
On 12 November 2010, the applicant filed an adverse action application in the Federal Magistrates Court. She alleged that the respondent contravened s 340 of the Fair Work Act 2009 (Cth), which relevantly provides as follows:
(1)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;
The federal magistrate heard evidence from the applicant and also from employees of the respondent, in particular, Mr Carter, Deputy Director of Pharmacy and Ms Hart, Senior Employee Relations Consultant, concerning the reasons for the termination. The federal magistrate accepted that the applicant had a workplace right, namely, the right to complain about bullying in the workplace. However, the federal magistrate determined that the termination was as a result of performance issues and that the complaint made by the applicant played no part in the decision to terminate. The federal magistrate said at [91]:
Mr Carter’s evidence could not have been more definitive. It was to the effect that any complaint or inquiry made by the applicant played no part in (the decision to or (sic)) the termination of the applicant’s employment. The evidence given by Mr Carter was unequivocal on this issue and I accept it as to the real and operative reason. I am satisfied the decision to terminate was ‘dissociated’ from any complaint or inquiry made by the applicant.
On 23 February 2012, the applicant filed this application for an extension of time within which to appeal from the judgment of the federal magistrate. The application was accompanied by an affidavit sworn by the applicant and a draft notice of appeal. The grounds of appeal upon which the applicant intends to rely are that:
The decision was made without any evidence. Magistrate didn’t consider the evidence attached with my documents.
The two relevant considerations for the Court to consider on this application are whether the applicant has provided an acceptable reason for the delay in filing the notice of appeal and whether the appeal is, at least, arguable. These two considerations must be viewed together so that even if the explanation for the delay is weak, strong grounds of appeal would justify the grant of an extension of time.
In her affidavit and in oral submissions today, the applicant sought to explain her delay in filing the notice of appeal. She said that she came to the Court on 3 December 2011 in order to file a notice of appeal but was told in the Registry that this could not be done because the judgment of the federal magistrate was not then available on the website or in the Court.
Then on 4 December 2011, the applicant went overseas. She stated in her affidavit that she sent the application, by which presumably she means a notice of appeal, from overseas but again it was not accepted “because the documents were not available.” She returned home to Australia at the end of January 2012 and filed this application over three weeks later.
In relation to the explanation for the delay, there is, on the face of the affidavit, some doubt about the circumstances which existed on 3 December 2011. It is strange that a judgment delivered on 28 November 2011 would not have been available by 3 December 2011. Mr Miller of counsel, who appeared on behalf of the respondent, also drew attention to the fact that, even upon the applicant’s return to Australia, she waited for at least 23 days before filing the application for an extension of time. In these circumstances, the explanation for the delay is not particularly compelling.
In relation to the arguability of the grounds of appeal, the applicant’s suggestion in the first ground of appeal that the judgment was made without any evidence is unsupportable in view of the detailed attention given by the federal magistrate to the evidence. In particular, [91] of the federal magistrate’s judgement is a clear finding of fact, based on the evidence of Mr Carter, that the termination was not because of the complaint or inquiry made by the applicant.
The second ground of appeal alleges that the magistrate did not consider evidence attached to the applicant’s documents. The applicant explained orally on the application what she meant by this allegation. She said her reference to documents was intended to be a reference to the notice of termination of employment. That notice stated the reason for termination as follows:
Poor work performance/compliance and interpersonal problem with line manager.
The applicant seeks to argue that the “interpersonal problem with line manager” discloses that one reason for the termination was her complaint about bullying by her line manager.
The federal magistrate considered the notice at [36]. In the end, having considered the terms of the notice, the federal magistrate nonetheless made a clear finding of fact, based on the evidence of the decision-makers that the termination was not because of the complaint.
Consequently, the grounds of appeal contained in the draft notice cannot succeed and it would be futile for the Court to grant an extension of time within which to appeal. As a result, the application must be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 16 April 2012
0
0
0