Griffiths v Power Ledger Pty Ltd

[2019] FCCA 2224

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIFFITHS v POWER LEDGER PTY LTD [2019] FCCA 2224

Catchwords:
INDUSTRIAL LAW – Application for an extension of time – principles to be considered – merits of the application generally – extension of time granted – matter referred to mediation.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 361, 368, 370, 570

Federal Circuit Court Rules 2001 (Cth), r.2.05

Cases cited:

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
MZZRO v Minister for Immigration & Border Protection [2014] FCA 882

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

Applicant: MARC GRIFFITHS

Respondent: POWER LEDGER PTY LTD

File Number: PEG 40 of 2019

Judgment of: Judge Kendall

Hearing date: 12 August 2019

Date of Last Submission: 12 August 2019

Delivered at: Perth

Delivered on: 16 August 2019

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr P Willox

Solicitors for the Respondent: King & Wood Mallesons

ORDERS

1. Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the time in which 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 of the Fair Work Act 2009 (Cth) on 14 January 2019 be extended to and include 30 January 2019.

2. The matter be referred to mediation before a Registrar of the Court on a date to be fixed by that Registrar.

3. If the matter does not resolve at the mediation referred to in Order 2, there be a further directions hearing on a date to be fixed by the Court.

4. Costs, if any, reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 40 of 2019

MARC GRIFFITHS

Applicant

And

POWER LEDGER PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 30 January 2019, the applicant, Marc Griffiths, filed an application (the “Substantive Application”) in this Court alleging that the respondent, Power Ledger Pty Ltd, had dismissed him from his employment because he had exercised his workplace right to make complaints or inquiries in relation to his employment. Broadly, the applicant alleges that the respondent has contravened s.340 of the Fair Work Act 2009 (Cth) (the “FW Act”). He seeks relief in the form of compensation and pecuniary penalties against the respondent.

2. Attached to the Substantive Application is a copy of the Fair Work Certificate issued under s.368 of the FW Act. To enliven the jurisdiction of this Court, the applicant must file an application within 14 days of the date of the certificate: the FW Act, s.370(a). The date on the certificate is 14 January 2019. The applicant therefore had until 28 January 2019 to file the Substantive Application.

3. The applicant’s Substantive Application was filed two days late.  Despite this very short period of time, at a directions hearing held on 5 March 2019 the respondent opposed the applicant’s request that the Court grant an order extending the time for the applicant to bring the Substantive Application.

4. In that context, the Court made orders as follows:

   1. The applicant shall file and serve an application for an extension of time pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) supported by affidavit by 8 March 2019.

   2. The parties file and serve submissions 14 days after the date of service of the application.

   3. The application for an extension of time be listed for hearing on a date to be fixed.

   4. Costs be reserved.

5. On 11 March 2019, the applicant filed a formal application for an extension of time with supporting affidavit (albeit three days after the time in which he was ordered to do so).

6. The Court received written submissions from both parties and the matter was listed for hearing on the issue of the extension of time on 12 August 2019. 

Applicant’s submissions

1. In support of the application for an extension of time, the applicant filed an affidavit affirmed on 8 March 2019. The affidavit relevantly states:

   a)the applicant’s previous lawyers had assisted him in preparing the Substantive Application but he was not working with them or any other legal representative since 29 January 2019;

   b)the applicant intends to represent himself;

   c)he had no knowledge that the documents needed to be served in the 14 day period; and

   d)the events in this matter have been stressful and emotionally challenging and it was only on 27 February 2019 that the applicant felt ready to serve the documents on the respondent.

2. In written submissions filed 26 March 2019, the applicant submitted as follows:

   a)the respondent engaged a law firm that specialises in helping companies get out of disputes such as these and they have two lawyers representing them, while the applicant is representing himself;

   b)the respondent has not denied any of the statements made and has instead made an attempt to shirk responsibilities by pointing to technicalities such as a two day delay in submission which is “apparently the strongest point of their defense”;

   c)while he understands the court process has deadlines, his opinion is that a little flexibility is reasonable, considering the associated distress and emotional challenges.

   d)he requests that the respondent provide an outline for its defence at least 14 days before the next hearing; and

   e)if there are any other technicalities the respondent plans to use to try to slip out of the matter, they declare them now.

3. At the commencement of the hearing on 12 August 2019 the applicant indicated that he had recently received advice that the matters he raised above “might  not be sufficient or directed toward what the Court would be required to consider in respect of the extension of time request”. He sought leave to file a further affidavit at a later date or, alternatively, to give evidence from the witness box at the hearing as scheduled. The Court allowed the applicant to be sworn in and give any evidence in court.

4. The applicant also sought to tender a medical certificate dated 29 March 2019 (which the Court marked as Exhibit 1).

5. The applicant was clearly distressed and appeared to be quite unsettled.  Regrettably, the oral “evidence” he presented was irrelevant to the matters at hand. It did not address the matters this Court needs to address when assessing a request for an extension of time and consisted largely of the applicant apologising to the Court and somewhat vague references to travelling.

6. In relation to the oral “evidence” provided by the applicant, the Court places no weight on the matters raised orally by him.  With respect, the comments provided were confusing and irrelevant.  

7. In relation to Exhibit 1, Mr Willox, for the respondent, quite rightly raised concerns about the fact that the applicant had sought to file evidence of this sort at the hearing, rather than well in advance, and had never raised health issues before. This, he submitted, made it difficult for him to “interrogate” the document. 

8. The Court allowed the document to be tendered but attaches no weight to it for the purposes of this hearing. It was dated 29 March 2019 (two months after the applicant ought to have filed the Substantive Application), is approximately 6 lines in length and simply refers to the “stress” the applicant has been under “recently”. Importantly, the letter does not indicate why the applicant’s mental health issues made it difficult for the applicant to comply with court orders. Regrettably, as noted above, the applicant’s oral submissions did nothing to assist in this regard. 

9. The Court’s comments above should not be seen as indicating that the Court doubts the contents of the medical certificate. The Court has no reason to doubt the truthfulness of what is stated in the medical certificate. Unfortunately, the document does not sufficiently address what needs to be addressed and, as such, is of no value to these proceedings.

10. For the reasons outlined above, the Court will not refer to the applicant’s oral evidence in relation to Exhibit 1 further.  It will, instead, reference the written submissions provided by the parties and the oral submissions provide by Mr Willox, which were clear and accurately referenced the principles relevant to matters of this sort.      

Respondent’s submissions

1. In response to the applicant’s application, the respondent filed an affidavit of David Anthony Martin on 27 March 2019, which provides:

   a)Mr Martin is the Managing Director and co-founder of Power Ledger Pty Ltd;

   b)the applicant was employed in the role of Chief Technology Officer (“CTO”) from 14 July 2017;

   c)in August 2018, the applicant was advised that there were to be changes to the senior leadership team and structure, including that the applicant’s role of CTO would be redundant;

   d)on 6 September 2018, the applicant was offered an alternate position of with similar responsibilities, except the role did not involve management duties or overall responsibility for delivery of the platform or product. The applicant did not accept this alternate role;

   e)on 27 September 2018, a letter was sent a letter to Mr Griffiths in which I confirmed that as he had rejected the alternative role, his employment was terminated. He was provided with all of his employment entitlements and paid all amounts owing to him;

   f)the applicant’s role no longer exists and the respondent has not hired anyone to replace the applicant while the employee whom the applicant says he complained or made enquires about left in October 2018; and

   g)the respondent is a relatively new start up business and if an extension of time is granted, this will require time and attention of senior management which will be a significant disruption and inconvenience, and cause significant legal costs to be incurred.

2. The respondent’s submissions, filed 27 March 2019, were detailed and clear.  They argued:

   a)the application seeking an extension of time was itself filed late, as it was to be filed by 8 March 2019 and was initially filed incorrectly;

   b)based on the facsimile time stamp marked on the top of the filed Substantive Application, it was filed on 29 January 2019 at 6:51pm. In accordance with Federal Circuit Court Rules 2001 (Cth) r.2.05(3)(b), the Substantive Application was taken to be filed at 8.30am on 30 January 2019, relevantly two days late;

   c)statutory time limits like the one contained in s.370 of the FW Act are designed to provide employees and employers with finality and 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;

   d)the respondent is not able to address whether any explanation is ‘acceptable’ as the applicant has not provided any explanation for the delay. The affidavit filed with the application does not address the issue at all. It refers to delay in serving the application but does not explain the delay in filing. In these circumstances, the Court has no basis on which to exercise its discretion and must decline the extension;

   e)the length of the delay is 2 days. While that is a relatively short period this is not a case where the application was filed after hours on the day it was due or first thing the next morning;

   f)the respondent does not suggest any specific prejudice arising from the delay;

   g)however, if the extension is granted, the respondent will be put to the significant expense and inconvenience of having to defend the claim;

   h)the applicant appears to claim that the respondent terminated his employment because he made complaints and/or inquiries or expressed concerns regarding the employee’s conduct and the failure of the respondent to provide POWR Tokens and Stock Options owing to him. This is denied by Mr Martin;

   i)the Substantive Application is essentially a contractual claim ‘dressed up’ as a general protections claim. It makes no sense for the respondent to terminate the applicant’s employment for complaining about not getting what he asserts are his contractual entitlements, as those entitlements would still be due and enforceable. If the extension of time is not granted, the applicant is not foreclosed from seeking alleged contractual entitlements. This is a factor which weighs in favour of not granting an extension;

   j)the reason for the applicant’s termination of employment was that his role of CTO was made redundant and he rejected a redeployment offer to a role as Blockchain Architect; and

   k)the applicant received all of his lawful redundancy entitlements.

3. As noted above, the Court allowed the applicant to provide “evidence” from the witness box. The Court has not placed any weight on the comments made by the applicant under oath. In light of the quite evident difficulties the applicant was having in communicating anything of value, the Court did not invite cross-examination. No objection to this course was raised.

4. In relation to the applicant’s position generally (to the extent that there was any clarity in this regard from the applicant himself), Mr Willox made the following submissions:

   a)this is the first time the applicant has sought to provide some explanation for the delay in the filing of his Substantive Application, and he has admitted he had the benefit of legal assistance with the preparation of the Substantive Application and this is also evident from the Substantive Application itself;

   b)accepting the applicant was travelling, there was still insufficient explanation for the additional day that the Substantive Application was filed late; and

   c)if the applicant believed he had until the end of the 14 days (that is until 29 January 2019) or that the legal firm led him to believe this was the case the Substantive Application was still filed late and his misunderstanding is not sufficient.

5. Mr Willox agreed with the Court that if the respondent was going to prove successful in convincing the Court to deny the applicant’s request for an extension of time, he would need to convince the Court that the Substantive Application had few merits.

6. In the course of the submissions that followed, Mr Willox emphasised that the core of the applicant’s claim is contractual.

7. To assist in understanding this argument, Mr Willox tendered as Exhibit 2 an email from the applicant’s previous legal representatives dated 6 December 2018.

8. Exhibit 2 provides detail on what Mr Willox contends is the key contractual dispute between the parties.

9. The applicant raised issue with Exhibit 2 and sought to explain the context in which the correspondence was provided.

10. The Court will refer to Exhibit 2 as necessary below.

11. The respondent relied on Mr Martin’s affidavit as evidence that there is no merit in the core claim. In particular, it was stressed that the applicant was offered an alternative position and that, to the extent that the applicant is raising the contractual issue as a basis for his termination, it would have been futile for the respondent to have dismissed him for this reason alone as this would not have prevented the applicant from seeking to enforce his contractual entitlements.

Legal Principles

1. In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230], Marshall J (“Brodie-Hanns”) identified the matters the Court may take into account when determining whether an extension of time ought to be granted: 

   1.Special circumstances are not necessary but the court must be positively satisfied that the 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.

2. As correctly pointed out by the respondent, this list is not exhaustive and the Court ought not “confine” the discretion to extend time to these matters. Rather, the Court must consider the circumstances of the case individually.  The principles above are but a guide to the Court when determining if the circumstances of the case before it warrant an extension of time being granted.

Length and Explanation for the delay

1. Here the delay in filing is minimal – two days.

2. While limitation periods ought not to be treated lightly, the delay is very short. The Court finds that this weighs in favour of granting an extension of time.

3. The Court is not satisfied that the applicant has adequately explained why the Substantive Application was filed 2 days late.  From the written submissions filed, it might be inferred that the reason for the late filing was because he was not aware that the Substantive Application was to be filed within 14 days because he misunderstood what was required of him.

4. Ignorance of the law, or a statutory time limit, is, without more, an insufficient excuse: MZZRO v Minister for Immigration & Border Protection [2014] FCA 882 at [33].

5. In any event, the Court does not accept that the applicant was either ignorant of what was required or misunderstood what was required of him.  It was clearly indicated on the certificate that the applicant had to bring an application within 14 days of the date of the certificate. Further, the applicant’s own evidence confirms that he had the assistance of legal practitioners in preparing his application.  

6. Finally, to the extent that there is some suggestion that the applicant was travelling at the relevant time (and that this somehow contributed to the delay), even if that were the case, it was the applicant’s responsibility to ensure that his application was lodged within the 14 day time limit. That he did not do so was a matter for the applicant and for him alone.

7. The Court is not satisfied that the applicant has provided a sufficient explanation as to why his Substantive Application was filed 2 days late. This weighs against granting the extension of time.   

Prejudice and Fairness

1. The respondent correctly concedes that they were not prejudiced by the 2 day delay. They do argue, however, that if the extension is granted they will be put to the “significant expense and inconvenience of having to defend the claim”.

2. Every party that initiates litigation, or has a proceeding commenced against them, undoubtedly feels “inconvenienced” by the need to litigate.

3. While the absence of prejudice is not sufficient to warrant an extension of time, the facts here do not weigh against granting an extension of time.

Merits of the Substantive Application

1. It is generally inappropriate to fully investigate the merits of the substantive case, although obvious strengths or weaknesses may be a factor for or against extending time: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158 at [49].

2. The respondent correctly noted that the Court is limited in its assessment of the merits of the Substantive Application as no materials or evidence have yet to be filed.

3. As noted above, the respondent relied on the affidavit of Mr Martin. Having reviewed that affidavit and the relevant attachments, the Court does not accept that the Substantive Application is little more than a “dressed up” contractual claim.  Exhibit 2 does indicate that a substantive part of the applicant’s claim is based on his contractual entitlements.  Nonetheless, the Substantive Application to this Court alleges that the applicant was terminated because he exercised his workplace rights to make complaints and inquiries about his contractual entitlements and other matters.

1. It is quite true that if the applicant was owed certain entitlements, he can still pursue those via a contractual claim. However, that simply gives him another legal option – one that he chose, for whatever reason, not to pursue. That “option” does not, however, negate the remedies available to him under the FW Act – particularly in circumstances where he is alleging that adverse action was taken because he inquired (or complained) about entitlements which were, on a preliminary view, “in relation to his employment”. The applicant also made complaints about a fellow colleague and he asserts that this too was a reason for the alleged adverse action.

2. These are all matters that can and should be tested in Court. At the moment, it cannot be said, however, that there is no merit in the concerns raised.   

3. Mr Martin’s evidence does state that the applicant’s position was made redundant. However, it appears that the applicant’s contention is that the redundancy was not genuine. Mr Martin’s evidence does not currently deny that workplace rights were exercised and adverse action was taken. While it is for the applicant to establish that he exercised his workplace rights, if established the burden will then be on the respondent to satisfy the Court that any adverse action was not “because of” the exercise of those workplace rights: the FW Act, s.361. Again, these are all matters that will, in time, be tested in Court. At the moment, however, it cannot be said with confidence that the concerns raised lack substance.

4. On the face of the statement of claim provided with the Substantive Application, and taking into account Mr Martin’s affidavit, the Court is not satisfied that there is no merit in the Substantive Application. There are clearly factual issues that need to be resolved and evidence that needs to be assessed before that conclusion can be drawn. 

5. The Court is not satisfied that the merits of the Substantive Application are so weak as to weigh against granting the extension of time sought by the applicant.

Fairness

1. The Court must also take account issues of fairness as between the applicant and the respondent, while also assessing the public interest.

2. Here:

   a)the applicant is alleging that the respondent has breached the FW Act. If this is found to have occurred, the respondent should be held to account for any adverse action – not only to compensate the applicant but also to educate and to deter any possible further offences or breaches of the FW Act;

   b)any prejudice to be suffered by the respondent (expense and inconvenience) are not matters that are unique or peculiar.  They are, rather, par for the course in any litigation (despite the best efforts of this Court to limit costs);

   c)while the respondent is a “new start up” (such that the financial burden arising from these proceedings will adversely impact the business), should it be the case that the Substantive Application is ultimately found to have had no merit or the applicant is found to have acted unreasonably in the course of the proceedings, the respondent has recourse to s.570 of the FW Act to recover costs if the Court is so satisfied; and

   d)it is in the public interest for those who are found to have breached (which the respondent is not yet found to have and the Court holds new view of) the protections afforded by the FW Act to be held to account.

3. These issues weigh in favour of granting the 2 day extension of time now sought by Mr Griffiths.

Conclusion

1. Having considered each of the factors above, the Court’s view is that, given the very small delay, the lack of prejudice caused by the delay to the respondent and the fact that there is an arguable case on the face of the limited materials currently before the Court, an extension ought to be granted.

2. There will be, accordingly, an order made that the time in which to bring the Substantive Application be extended to the date of filing.

3. In respect of costs, the Court is mindful of s.570 of the FW Act. Noting the Court’s comments above, any application for costs should be made by way of interlocutory application with supporting affidavit.

4. Finally, having granted the extension of time, it is the Court’s view that this matter should proceed to mediation where, with the benefit of a Registrar of this Court assisting the parties, it is hoped that an amicable solution to the issues and matters arising can be reached. Should the mediation prove unsuccessful, the matter will return to the Court for further directions as necessary.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Date: 16 August 2019