Grech v Truck Tech

Case [2023] FedCFamC2G 184

Federal Circuit and Family Court of Australia

(DIVISION 2)

Grech v Truck Tech [2023] FedCFamC2G 184

File number: MLG 2214 of 2022
Judgment of: JUDGE FORBES
Date of judgment: 10 March 2023
Catchwords: INDUSTRIAL LAW – FAIR WORK ACT – 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 refused
Legislation:

Fair Work Act 2009 (Cth) s 342, 351, 365, 368, 370, 570

Industrial Relations Act 1988

Cases cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Chou v Digital61 Pty Ltd [2021] FCA 640

Clarke v Service to Youth Council Incorporated [2013] FCA 1018

Richens v Commonwealth of Australia (as represented by the Commissioner of the Australian Federal Police) [2018] FCA 1276

Saxena v PPF Asset Management Ltd [2011] FCA 395

SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158

Tran v Minister for Immigration and Border Protection [2014] FCA 533

Transport Workers Union v School Bus Contractors [2011] FMCA 28

Trustee for the MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Division: Division 2 General Federal Law
Number of paragraphs: 67
Date of last submission: 31 January 2023
Date of hearing: On the papers
Place: Melbourne
Solicitor for the Applicant: In Person
Solicitor for the Respondents: Gilchrist Connell

ORDERS

MLG 2214 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PHILLIP GRECH

Applicant
AND:

TRUCK TECH

First Respondent

NICHOLAS LAY

Second Respondent

order made by:

JUDGE FORBES

DATE OF ORDER:

10 MARCH 2023

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to TTG Services Pty Ltd (ACN 30 651 354 942).

2.The Applicant’s Application for an Extension of Time dated 6 December 2022 to commence a general protections court proceeding is dismissed.

3.There be no order as to costs.

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

  1. In this matter the applicant (Phillip Grech) seeks to invoke the Court’s discretion under section 370(a)(ii) of the Fair Work Act 2009 (Cth) (“the FW Act”) to grant him an extension of time in which to file an application alleging dismissal in contravention of the general protection provisions of the FW Act.

  2. Relevantly, section 370 of the FW Act provides that a person must not make a general protections court application in relation to a dismissal dispute unless two criteria are satisfied, namely:

    (a)The Fair Work Commission (Commission) has issued…

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AGLC
Grech v Truck Tech [2023] FedCFamC2G 184
Case
[2023] FedCFamC2G 184
Decision Date

CaseChat Overview and Summary

Mr Grech commenced proceedings against Truck Tech in the Federal Circuit Court of Australia, alleging that his dismissal was unlawful under the Fair Work Act 2009 (Cth). He sought a civil remedy order in accordance with section 368 of the Act. The matter came before the court to determine whether the applicant should be granted an extension of time to file the Application and Form 2. The central issue for the court was whether there was an acceptable explanation for the delay in filing the necessary documents within the prescribed time frame. The court was required to consider whether the explanation provided by Mr Grech was sufficient to warrant an extension of time, and whether the delay was due to special circumstances or an acceptable explanation that made it equitable to extend time.

The court found that Mr Grech's explanation for the delay was insufficient. He claimed that he filed the documents within the 14-day period but was advised that they needed amending due to his chronic back pain, stress, depression, and mental concerns. However, he did not provide any documentary evidence to support his claims. The court noted that the explanation did not rise above mere assertion and lacked objective evidence, such as court records, email receipts, or correspondence with the registry. The court concluded that Mr Grech had not filed any documents with the Court within the prescribed time frame and that the delay was not due to ignorance of the limitation period, as the FWC Certificate included a prominent note about the requirement to make an application to the Court within 14 days. The court found that the explanation provided by Mr Grech was insufficient to warrant an extension of time.

In conclusion, the court did not grant Mr Grech an extension of time to file the Application and Form 2. The court found that his explanation for the delay was insufficient and lacked objective evidence. The court noted that the delay was not due to ignorance of the limitation period, as the FWC Certificate included a prominent note about the requirement to make an application to the Court within 14 days. The court's decision was based on the lack of an acceptable explanation for the delay and the absence of special circumstances that would warrant an extension of time. The court's decision was in line with the well-established practice of the Federal Circuit Court of Australia and the Federal Court of Australia, which consider applications within the Brodie-Hanns framework but note that the Court's discretion is broad and not constrained by only those factors.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below I have decided not to grant the applicant an extension of time. Background Mr Grech was employed by the first respondent (Truck Tech) from 26 April 2022 to 16 May 2022 as an apprentice heavy vehicle mechanic. The respondents contend that Mr Grech was actually employed by TTG Services Pty Ltd (ABN 30 651 354 942), but for the purposes of these reasons the employer will be described as Truck Tech. Prior to commencing his employment with the first respondent, Mr Grech underwent a medical assessment to determine whether he was capable of fulfilling the inherent requirements of the role.[1][1] Exhibit ASJ-1 of the Affidavit of Allana Jayde Smith affirmed on 31 January 2023 It is not disputed that the applicant’s employment was terminated by Truck Tech on 16 May 2022, during the applicant’s probationary period and on the stated ground of unsatisfactory performance. Also on 16 May 2022, the applicant filed a WorkCover claim which is presently being managed by the EML. On 25 May 2022 Mr Grech lodged an application with the Fair Work Commission alleging that his dismissal was unlawful in contravention of the general protections provisions of the FW Act (s 365). The grounds of his application were articulated as follows[2]:(1)I was being bullied/discriminated against. Truck Tech had an idea of this.(2)I contacted Fair Work and lodged a complaint/dispute.(3)Then the manager said my work is not progressive and the performance is low. I responded that I have been bullied and that I couldn’t cope, but that I will get better.(4)A meeting was held on Friday advising me that I’m taking too long on services.(5)I have been bullied so how can Truck Tech have the right to end my employment? (6)I was bullied for no reason and I was terminated to avoid frustrations.(7)I am not at fault.[2] Affidavit of Allana Jayde Smith affirmed on 31 January 2023, p 57 A Fair Work Commission conciliation conference was conducted on 28 June 2022. The matter did not resolve. On 12 July 2022, Commissioner Yilmaz of the Fair Work Commission issued a certificate pursuant to section 368 of the FW Act, confirming that the Commission was satisfied pursuant to s 368(3)(a) of the FW Act that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful (FWC Certificate). The FWC Certificate contained an ‘Important Note’, which issued the following caution: IMPORTANT NOTE: The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order, unless the court extends the time for making such an application.’ On 4 October 2022, the applicant sought to commence his proceedings in this Court. Mr Grech alleges that his dismissal was unlawful and he alleges contraventions by the first respondent of ss 342 and 351 of the FW Act. Essentially, these are the same complaints which underpinned his application to the Commission.LEGAL PRINCIPLES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONExplanation 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’.[8] [8] Brodie-Hannsv MTV Publishing Ltd [1995] 67 IR 298 The circumstances pertaining to the late filing of the Application and Form 2 are outlined by Mr Grech in a brief submission attached to his affidavit dated 15 December 2022. In this submission, Mr Grech states that:‘I did lodge the documents, form 4 & the fair work form within 14 working days via the vicfiling email, the documents require amending but I was adviced (sic) anyway that the documents have been received and have now been excepted (sic), all though (sic) it did take some time to get the amendments done due to the fact I was experiencing chronic back pain and also I was under treatment by my doctor, I was also experiencing stress, depression and a mental concern.’; and‘I have evidence of the delay with my capacity certificates’. The respondents challenge the adequacy of that explanation on the basis that Mr Grech has provided no documentary evidence to support this explanation for the delay. I agree that the explanation provided by the applicant provides insufficient detail and does not rise above assertion. Mr Grech has not proffered an explanation as to why he believed the documents were received and accepted by the Court at an earlier date. The applicant has not provided any evidence to support the assertion that he lodged the documents with the Court within the 14 day period, that he was told they had been received or that he was told they needed amending. The applicant has not, for example, sought to produce any court records or email receipts which confirms the said lodgement nor has he provided any evidence of his correspondence with the registry about the amendments that were required. In the absence of objective evidence, I do not accept that the applicant filed any documents with the Court prior to 4 October 2022 or within the time prescribed by the Act. On the material before me, I cannot be satisfied that Mr Grech was advised by court staff at any earlier period that there were deficiencies in the documents provided by him but that they had been received and were accepted. I am satisfied that on 12 July 2022, both parties received the FWC Certificate by way of email. As previously stated that Certificate included a prominent note which drew the applicant’s attention to the requirement to make an application to the Court within 14 days, unless the Court extends the period for an application. Whilst there is no evidence that Mr Grech read the note in the FWC Certificate, given its prominence, it is reasonable to assume that he did. Thus, I proceed on the basis that the applicant did not allow the limitation period to expire because of ignorance of its existence.[9] [9] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [20]Medical issues