Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd
[2014] FCCA 1490
•11 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HENSHALL v PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD | [2014] FCCA 1490 |
| Catchwords: INDUSTRIAL LAW – General protections court application under Fair Work Act 2009 – application for extension of time – whether extension of time is appropriate. |
| Legislation: Fair Work Act 2009 (Cth) ss.361, 365, 370 |
| Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Sibert v Tiwilslands Shire Council (No.2) [2012] FMCA 1100 Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 |
| Applicant: | STEPHEN HENSHALL |
| Respondent: | PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD |
| File Number: | MLG 557 of 2014 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | On the papers |
| Date of Last Submission: | 24 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Victoria Legal Aid |
| Solicitors for the Respondent: | Davies Lawyers |
ORDERS
That the time for the filing of the application be extended to 28 March 2014.
That the matter be listed for mention on 20 August 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 557 of 2014
| STEPHEN HENSHALL |
Applicant
And
| PETER STEVENS MOTORCYCLE RETAIL GROUP PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons concern a request for an extension of time for the filing of a general protections court application under the Fair Work Act 2009 (Cth) (“the Fair Work Act”).
Mr Stephen Henshall (“the applicant”) filed his substantive application on 28 March 2014. Following the termination of his employment the applicant alleged inter alia that the Peter Stevens Motorcycle Retail Group Pty Ltd (“the respondent”) had contravened the Fair Work Act.
A certificate was issued by the Fair Work Commission on 21 February 2014 making the relevant date for the filing of the substantive application 7 March 2014.
On 12 May 2014 the substantive application came before the Court. The respondent had yet to file a response and the substantive application had been filed 21 days late. The matter was adjourned to
20 August 2014 and the applicant and respondent were directed to file submissions in relation to the issue of whether the Court should extend time for the filing of the substantive application.
The applicant filed an application in a case to extend time on 30 May 2014, an affidavit in support and submissions. The respondent filed and outline of submissions and affidavit on 24 June 2014. The parties subsequently agreed the Court would decide the application to extend time on the written submissions.
The background facts and circumstances and the relevant principles in relation to the request are set out in written submissions filed with the Court by the parties to which I now turn.
Submissions
The applicant filed submissions on 30 May 2014 which were:
“THE ISSUE ON THIS APPLICATION
1.The Applicant seeks an extension of time to file the application in matter (P)MLG557/2014 (“Application”) under section 370 of the Fair Work Act 2009 (“Act”).
BACKGROUND
2.On Thursday 9 January 2014 the Applicant’s employment was terminated. The reason given for the termination was redundancy.
3.On Thursday 30 January 2014 the Applicant made an application pursuant to section 365 of the Act to the Fair Work Commission (“FWC”) alleging he was dismissed in contravention of Part 3-1 of the Act.
4.On Thursday 20 February 2014 the FWC conducted a conference to deal with the dispute. The dispute was not resolved and on Friday 21 February 2014 The FWC issued a certificate under paragraph 368(3)(a) of the Act (“Certificate”) in relation to the dispute.
5.Between Thursday 6 March 2014 and Friday 28 March 2014 the Applicant attempted to file his Application with the Federal Circuit Court pursuant to section 370 of the Act. The Applicant took the following steps to this end:
(a)On Thursday 6 March 2014 the Applicant attempted to register with the Commonwealth Courts Portal online.
(b)On Thursday 7 March 2014 the Applicant attempted to register with the eLodgement service on the Federal Court website.
(c)On Thursday 7 March 2014 the Applicant attempted to file his Application through the eLodgement service and paid a filing fee of $515. After having trouble uploading all of his documents the Applicant sent these via email at 12:47 am and 12:59 am on Saturday 8 March 2014 to [email protected].
(d)On Monday 10 March 2014 the Applicant received a reply email from the Federal Court stating that his documents could not be accepted for filing via email.
(e)On Tuesday 11 March 2014 the Applicant telephoned the filing registry to confirm that his documents had been received. He was reassured that they had been and that he would receive confirmation in due course.
(f)On Wednesday 12 March 2014 the Applicant received an email confirming that his lodgement was marked pending.
(g)Between Thursday 13 March 2014 and Tuesday 25 March 2014 the Applicant did not receive any further correspondence from the filing registry.
(h)On Wednesday 26 March 2014 the Applicant rang the filing registry and expressed concern that he had not received confirmation that his Application had been lodged. The Applicant was advised that his Application had not been processed to the Federal Circuit Court, but rather the Federal Family Court. The Applicant made an appointment to attend the filing registry the next day being Thursday 27 March 2014 at 12:00 pm to rectify the mistake.
(i)On Thursday 27 March 2014 the Applicant presented himself to the filing registry and was advised that his Application had been filed in the Family Court and that it had to be switched over back to the Federal Circuit Court. The Applicant was advised that it would take some time to reorganise the paperwork. By this time it was around 2:00 pm. The Applicant lives an hour away from Melbourne and had to return to his home in Romsey to pick up his son from school. The Applicant was advised by registry staff member Kira Richards that she would fix up the paperwork and have it ready for him to return and finalise the next morning.
(j)On Friday 28 March 2014 the Applicant returned to the Registry in the morning as arranged and finalised the filing of his Application. This was 35 days after the FWC issued the Certificate and 21 days outside of the time permitted by section 370 of the Act.
6.On Monday 31 March 2014 the Applicant served the sealed documents on the Respondent by registered post.
LEGISLATION
7. Section 370 of the Act provides as follows.
370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b)the general protections court application includes an application for an interim injunction.
Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).
Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
EXTENSION OF TIME
8.Section 370 (a) (ii) of the Act provides a discretion for the Court to accept a general protections application filed outside of the fourteen-day time period.
9.In Brodie-Hanns v MTV Publishing Ltd[1] Justice Marshall set out guiding principles for a Court exercising its discretion as to whether or not to grant an extension of time:
[1] (1995) 67 IR 298, 299 – 300 (Marshall J). These principles derive from the earlier judgments of Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 185 and Turner v K&J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412, which applied the tests in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J).
Briefly stated the principles are:
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 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]
[2] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299 – 300 (Marshall J).
10.These principles have been accepted as authoritative and are regularly applied by the Court, though they are not binding upon it.[3] They are referred to in these submissions to assist the court.
[3] Transport Workers’ Union of Australia v School Bus Contractors Pty Ltd [2011] FMCA 28. See also Sibert v Tiwi Islands Shire Council (No. 2) [2012] FMCA 1100 at [22] (Diver FM).
(a) An acceptable explanation of the delay
11.The Applicant took action within the prescribed time to agitate his dispute with the Respondent by making an application to the Court, albeit that he did not do so effectively.
12.Whilst the Applicant had had the benefit of legal assistance in preparing his Application, he had no such assistance with the filing of his documents.
13.The Applicant attempted to commence proceedings against the Respondent, within the prescribed time, on 7 March 2014, by filing his Application by way of eLodgment.
14.The Applicant attached copies of the letter of termination (undated) and the Certificate issued under section 368 of the Act dated 21 February 2014 in addition to other documents in support of his Application.
15.The Applicant’s Application was not taken to have been filed for the reasons outlined above at paragraph 5.
16.Once he became aware of the mistake, the Applicant took immediate steps to rectify it and file his Application in the correct way.
17.In these circumstances it is submitted that there exists an acceptable reason for the delay in filing the Application.
(b) Action taken by the Applicant to contest the termination
18.Following his termination the Applicant took the following action to contest his termination:
(a)On 9 January 2014 the Applicant stated to his employer that he did not accept the redundancy as genuine.
(b)On 30 January 2014 the Applicant made an application pursuant to section 365 of the Act to the Fair Work Commission (“FWC”) alleging he was dismissed in contravention of Part 3-1 of the Act.
(c)Following the conciliation at the FWC the Applicant conveyed through the Commissioner that he would be pursuing his complaint further.
19.In Brodie-Hanns, as a result of the legislative regime in place it was relevant for the Industrial Relations Court to consider what steps an employee who had been terminated had taken otherwise than under the IR Act before applying to the Court out of time. That is not the case under the current legislative regime.[4]
[4] Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28, 75 (Lucev FM).
20.In Transport Workers Union v School Bus Contractors Pty Ltd[5] Lucev FM found it sufficient to have regard to the fact that a prompt application was made to the then Fair Work Australia to contest the dismissal: this was sufficient to show that action had been taken otherwise to contest the dismissal.[6]
[5] [2011] FMCA 28.
[6] Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28, 77 (Lucev FM).
21.The action taken by the Applicant described above at paragraph 18 put the Respondent on notice that its decision to terminate his employment was in active dispute up until he filed the Application in this Court.
(c) No prejudice to the Respondent
22.It is submitted that the Respondent suffers no prejudice by reason of the delay.
23.The delay is not of such a length as to seriously impact on the recollections of the Respondent’s staff concerning the relevant events relating to the Applicant’s termination. In Turner v K & J Trucks Coffs Harbour Pty Limited Beazley J found that a delay of 50 days in that case was “not so lengthy as to raise the problem that memories might fade.”[7]
[7] (1995) 61 IR 412, 416 (Beazley J).
24.The Respondent was, or should have been on notice, that the Applicant was unlikely to accept the outcome in the FWC proceedings as determinative of his dispute.
25.Prior to the directions hearing on 12 May 2014 the Respondent failed to put the Applicant on notice of any jurisdictional objection.
(d) The merits of the substantive application
26.In the substantive application in these proceedings the Applicant alleges that the Respondent has contravened general protections provisions under sections 340, 343(1), 344 (c)(d)(e) and 351 of the Act and seeks relief under section 539 of the Act in relation to the alleged contraventions.
27.It is submitted that the Applicant has a strong claim. However, as discussed by a Full Bench of the Tribunal in Kornicki v Telstra – Network Technology Group[8], “[i]t would be sufficient for the applicant to establish that the substantive application was not without merit.”
[8] (1997) 140 IR 1, 11.
28.Following complaints made by the Applicant to the Respondent that he could not agree to a proposed new employment contract due to his family responsibilities, and two written requests for continuing his flexible working arrangements, the Applicant’s employment was terminated on 9 January 2014. The reason given by the Respondent for the termination was redundancy. During the termination meeting undue pressure was placed on the Applicant to either sign the proposed new contract or be made redundant.
29.It is understood that the Respondent does not deny that it terminated the Applicant’s employment.
30.As such, the Respondent will bear the onus of establishing that the real reasons for its termination of the Applicant’s employment were “dissociated from the circumstances”[9] of his family responsibilities or request for flexible working arrangements. It is submitted that the Respondent will not be able to discharge this onus.
31.The Application raises real factual issues which are deserving of determination on a final basis.
(e) Fairness considerations
32.A person in a like position to the Applicant may be someone who has been subjected to the same treatment as the Applicant but has not been dismissed from their employment. An alternative construction of a person in a like position to the Applicant would be someone who has had their employment terminated and attempts to bring a claim against their former employer out of time.
33.In Sibert and Tiwi Islands Shire Council (No.2)[10] the Applicant in that case incorrectly filed the wrong forms outside of the time allowed by the Act. Driver FM found that in those circumstances there were grounds to grant an extension of time.
34.It is submitted that in these circumstances fairness between the Applicant and others in a like position, on either construction, requires that the extension of time be granted. It is submitted that an extension in these circumstances is also generally consistent with the policy objectives of the Act.
[9] Fair Work Act 2009 (Cth) s 361 and Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570 at [32].
[10] [2012] FMCA 1100.
CONCLUSION
35.For the reasons above, it is submitted that the length and reasons for the delay, action taken by the Applicant to contest the termination, the lack of prejudice to the Respondent, as well as taking into account the merits of the substantive application,[11] allow the Court to exercise its discretion to grant an extension of time.”
[11] Sibert v Tiwi Islands Shire Council (No. 2) [2012] FMCA 1100 at [23] (Diver FM); Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299 – 300 (Marshall J).
The respondent filed submissions on 24 June 2014 which were:
“1.These submissions are made in accordance with the order of Judge O’Sullivan dated 12 May 2014.
2.The Respondent received the Applicant’s application for an extension of time to file the application in this matter, together with a supporting Affidavit dated 30 May 2014 and an outline of submissions on 2 June 2014.
3.The Respondent has had the opportunity to consider the submissions and affidavit material filed by the Applicant in support of the application. In light of the material filed, the Respondent takes a neutral view as to whether the court should exercise its discretion to grant the Applicant leave to file the application in the substantive matter out of time.
4.Even though the Respondent has taken a neutral view as to whether the application made should granted, it is accepted that as this is a matter that pertains to the jurisdiction of the Court (to hear the substantive application) the parties cannot by agreement or otherwise confer jurisdiction. The onus is upon the Applicant to establish that the facts and circumstances surrounding his failure to make a general protections application within the time prescribed by the Fair Work Act 2009 (the FW Act) are such that it would be appropriate for the Court to exercise its discretion, by making an order permitting the filing of the application within 35 days of the issuing of the Fair Work Commission Certificate of 21 February 2014 (FWC Certificate).
5.In exercising the discretion available to the Court to extend time for filing, it is submitted that the court should have regard to the following:
(a)Section 371 of the FW Act requires that a general protections court application must be made within 14 days after the certificate is issued, namely the general protections application made by the Applicant should have been made by 7 March 2014. It was not. The application was made 21 days out of time;
(b) The FWC Certificate states at the foot of the document
“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 the certificate in which to make a general protection application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order, unless the court extends time for making such an application.” (underling added)
The Applicant was aware from 21 February 2014 that any general protections court application must be filed with this Court by 7 March, unless an application was made and granted for an extension of time.
(c)The Applicant retained lawyers from 4 March 2014 (see paragraph 16 -19 of the Applicant’s affidavit). The lawyer, Mr Kelly, has not been called to corroborate the assertions of the Applicant in his affidavit. Further the Applicant made no attempt to seek the advice or assistance of his then legal adviser, Mr Kelly, between 6 March 2014 and 28 March 2014 when it was apparent that he had been unable to lodge the general protections court application, despite being aware that he was required to file same by 7 March 2014 or otherwise make an application to the Court for an extension of time;
(d)There was no attempt on 7 March 2014 to contact the Court by telephone regarding how he could go about lodging the general protection court application by close of business on 7 March 2014 as soon as he became aware that Court’s electronic lodgement service stated registration was pending.
(e)Despite knowing that his general protection court application was filed out of time the Applicant made no attempt to contact the Respondent or the Respondent’s representative during the period 7 March 2014 and 31 March 2014. The Respondent only became aware of the circumstances surrounding the “filing” of the Applicant’s general protections court application upon being served with the Applicant’s affidavit of 30 May 2014.
(f)The Respondent was not served all documents filed with the Court on 28 March 2014 on 31 May 2014.The Respondent obtained copies of the general protections court application off the Court file at the directions hearing on 12 May 2014.
(g)The Applicant is not a “self-represented” litigant of the usual type, he had the means to engage a lawyer to prepare the general protections court application and pay a lodgement fee (albeit an incorrect fee) of some $515.00. He has since availed himself of further legal representation to prepare argue his case for an extension of time. (It is noted the Respondent has not received a notice of address for service from Legal Aid and as such it is not clear whether Legal Aid has been retained in the substantive proceeding).
6.The Applicant makes bold assertions as to the substantive merits of his case in paragraphs 2 to31 of his submissions. The assertions made in these paragraphs are expressly rejected by the Respondent. Further, a “reverse onus” does not automatically give strength to an Applicant’s claim. It is and has always been the position of the Respondent that that the decision to make the Applicant’s position redundant was made for reasons that did not include the Applicant’s family responsibilities or a request for flexible working arrangements.
...”
Relevant provisions
In Whitfield v One Key Resources Pty Ltd [2014] FCCA 553[12] Judge Lucev noted that the Fair Work Amendment Act 2013 (Cth)[13] effected amendments to the provisions of the Fair Work Act dealing with commencement of general protections court applications. His Honour noted the amendments did not change the substance of the relevant provisions.
[12] See para 4
[13] “FW Amendment Act”.
The relevant provisions pertaining to the application are contained in the Fair Work Act. Section 370 now provides:
“A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Note 1:Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see section 727 and 728).
Note 2:For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
In Brodie-Hanns v MTV Publishing Ltd[14] (“Brodie-Hanns”), the Industrial Relations Court of Australia outlined the principles which relate to the exercise of the discretion. Whilst the list is not exhaustive nor binding, it is instructive of the relevant principles to be applied.[15]
In Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28 Judge Lucev considered the provisions of the Fair Work Act in place at that time in relation to extension of time for bringing a general protections court application. In Clarke v Service to Youth Council Incorporated [2013] FCA 1018 the Federal Court having referred to the discussion of those provisions in the above mentioned decision described the reference to the criteria in Brodie-Hanns “…as a reference to the kinds of considerations which may be relevant.”[16]
[14] (1995) 67 IR 298
[15] see Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28
[16] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at para 5 per White J
Those principles include 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.
Action taken by the applicant to contest the termination, other than applying under the Fair Work 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.
Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.
Consideration
I now turn to consider this application in the context of the principles set out in Brodie-Hanns and the parties’ submissions noting that the applicant seeks an extension of time and the respondent takes a “neutral view” on that application.
Acceptable explanation
The primary position set out in the Fair Work Act is that the time limit should be complied with.
The applicant’s evidence is, had the applicant been able to successfully navigate the Court’s e-filing system the substantive application could have been filed by the required date and within specified time set out in the Fair Work Act. I note the respondent in submissions takes a neutral position.
Action taken by the applicant
The affidavit of the applicant filed 30 May 2014 makes clear he took steps to actively contest the termination almost as soon as it occurred. He acted in a timely manner throughout the proceedings in the Fair Work Commission and since. Notwithstanding the respondent’s submissions I am satisfied that the delay in making the application to this Court was not due to any in action or fault by the applicant.
Prejudice to the respondent
The respondent’s submissions did not point to any prejudice should time be extended. Having regard to the period of delay in this case but given the parties submissions I am not satisfied there would any prejudice to the respondent extending time. On the basis of the material contained in the affidavit referred to above the respondent was aware the termination was being contested.
Absence of prejudice to respondent
As was noted in Brodie-Hanns the mere absence of prejudice to the respondent is an insufficient basis to grant an extension.
However, that is not the only issue here for the reasons set out above.
Merits of substantive application
In considering the merits of the application it is relevant to consider the provisions of the Fair Work Act.
I note the respondent’s submissions on this factor. The Court is cognisant of the provisions in Chapter 3, Part 3-1 of the Fair Work Act. Those provisions contain the reverse onus of proof contained in s.361 of the Fair Work Act. However, it is not possible to say that the application is without merit.
Conclusion
The Court has taken into account the following:
i)the fact that the time involved is 21 days; and
ii)the principles set out in Brodie‑Hanns;
I am satisfied it is appropriate to extend time for the application. It would, in the circumstances, be unfair to deny the applicant who appears to have a proper basis for making a claim a chance to do so because of difficulties that arose in the course of his interactions with the Court’s registry.
I will make the orders as set out at the beginning of these reasons for decision.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 11 July 2014
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