Hole v Secretary of the Department of Health and Human Services, on behalf of the State of Victoria
[2020] FCCA 2090
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLE v SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, ON BEHALF OF THE STATE OF VICTORIA | [2020] FCCA 2090 |
| Catchwords: INDUSTRIAL LAW – Extension of time application – general protections claim – factors to be considered – extension of time not granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 365, 366, 368, 370 |
| Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 |
| Applicant: | DAMIEN HOLE |
| First Respondent: | SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, ON BEHALF OF THE STATE OF VICTORIA |
| File Number: | MLG 642 of 2020 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 29 July 2020 |
| Date of Last Submission: | 29 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Avallone |
| Solicitor for the Respondent: | Department of Health and Human Services Legal Division |
ORDERS
The application for extension of time for the filing of the substantive proceedings be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 642 of 2020
| DAMIEN HOLE |
Applicant
And
| SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, ON BEHALF OF THE STATE OF VICTORIA |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application to extend time to commence proceedings under the provisions of Part 3-1 of the Fair Work Act 2009 (Cth) (“the FW Act”). Those provisions require, inter alia, that an application thereunder relating to the termination of an employee’s employment be first referred for conciliation by the Fair Work Commission (“FWC”). In the event that the FWC certifies that attempts at conciliation have failed to resolve the matter, an application can be made to this Court: FW Act, s.370(a)(i). That must occur within 14 days after the FWC so certifies: FW Act, s370(a)(ii).
In this case the FWC issued the certificate on 30 August 2018. However it wasn’t until 25 February 2020 that Damien Hole (“the applicant”) filed an application alleging breaches of Part 3-1 of the FW Act by the Secretary of the Department of Health and Human Services, on behalf of the State of Victoria (“the respondent”).
The substantive application was filed outside of the statutory time limit provided in s.370(a)(ii) of the FW Act. It was almost 18 months late.
In the circumstances, the applicant requires an extension of time in order to allow him to pursue these proceedings.
Background
The applicant is 49 years old and lives in Point Cook in Victoria. He was employed by the respondent from 15 January 2018 to 27 June 2018 as a Child Protection Practitioner on a non-ongoing basis.
After being terminated in 2018 the applicant commenced proceedings in the FWC. At that time the applicant was represented by McDonald Murholme Lawyers. The respondent filed a response in FWC on 27 July 2018. The FWC conducted a conciliation conference on 21 August 2018. On 30 August 2018 the FWC issued a certificate indicating that attempts to resolve the dispute had been unsuccessful. The applicant had 14 days after that to file an application with the Court.
The applicant did not file his application with the Court until 25 February 2020. He also filed an affidavit in which he sought an order for an extension of time. The applicant alleged the delay in filing his application was due to defaults by his former solicitors, McDonald Murholme Lawyers.
The applicant, who represents himself, and the respondent attended a first court date on 31 March 2020 before a Registrar. On that occasion the Registrar made the following orders:
“1.The respondent file and serve its affidavit evidence and written submissions in response to the applicant’s application for an extension of time by 17 April 2020.
2. The applicant file and serve any affidavit evidence and written submission in reply by 4 May 2020.
3. The application for an extension of time be listed before a judge on a date to be fixed after 8 May 2020.4. Costs are reserved.
5. Liberty to apply.”
The hearing for the extension of time request was then listed on 29 July 2020 before the Court as currently constituted.
The respondent filed written submissions on 17 April 2020 along with an affidavit from its solicitor Mr William Tucker and the applicant filed a reply on 4 May 2020.
At the hearing on 29 July 2020 (which proceeded by Microsoft Teams) the applicant appeared in person and the respondent was represented by Mr Avallone of Counsel.
The parties had the opportunity to make oral submissions supplementing the above mentioned material upon which they relied. At the conclusion of the hearing the decision was reserved.
Applicable Legislative Provisions
It is convenient to commence with some of the key provisions in the FW Actthat are relevant to the applicant’s case.
Part 3-1 of the FW Actis entitled “General protections” and provides a range of general workplace protections. Div. 3 of Pt. 3-1 protects “workplace rights” (as defined in s. 341) and the exercise of those rights. Relevantly, by reason of s.340, an employer is prohibited from dismissing an employee for exercising a workplace right.
Section 365 of the FW Act provides that a person who has been dismissed in alleged contravention of Pt 3-1 may submit an application to the FWC. It provides as follows:
“Application for the [Fair Work Commission (“FWC”)] to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”Section 366 imposes a time limit on the making of an application under s.365. It provides as follows:
“Time for application
(1) An application under section 365 must be made:(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”Section 368 sets out how the FWC is to deal with a dismissal dispute. It provides:
“Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
…
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
…
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:(a) the FWC must issue a certificate to that effect; and
…(4) A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.”
Section 370 sets out the conditions which enliven the Court’s jurisdiction to consider a dismissal dispute of the kind contemplated in s.365. It provides:
“Taking a dismissal dispute to court
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 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.
(Emphasis added.)
Applicant’s Case
As noted, the applicant filed an affidavit in support of his request for an extension of time on 25 February 2020 which states:
“…
1. I am writing this Affidavit to request an extension of time to file the Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection.
2. In July 2018, I engaged solicitors McDonald Murholme to represent myself in a General Protections application involving dismissal at the Fair Work Commission.
3. A certificate under section 368 was issued by Fair Work on the 30th August 2018.
4. After the hearing my solicitor, Sakorika, explained the next process was to lodge the certificate with the Federal Circuit court, the timeframe was also mentioned and a conversation was had between my solicitor and myself in the lawyer’s office with a follow-up conversation later that day by telephone. The conversation mainly centred around the solicitor trying to determine the amount of compensation to ask for as she was in the process of already filling out the forms for the Federal Circuit court.
5. Once my lawyer had determined the amount I was told all the paperwork would be filed with the Federal Circuit court and I was to just wait until I was notified of a listing for a court date.
6. In September 2019 still without any notice from my solicitors or the court I decided to just touch base with my lawyers, After some confusion on the lawyers behalf I was eventually told that not only did my solicitor no longer work for the firm, but my paperwork had not been lodged with the Federal Circuit court.
7. I was invited to meet with the managing partner of McDonald Murholme, Alan McDonald on the 2nd of October 2019 in the firms law offices to discuss the situation. Mr McDonald had my file on hand and saw and confirmed the work that had been done on my file after the Fair Work hearing in August 2019 [sic] but could not explain why the forms had never been lodged with Federal Circuit court [sic]. Mr McDonald was at a loss to explain what had happened other than to say that my lawyer Sakorika, not only no longer worked at the firm but was no longer living in the country. Apart from a shrug of the shoulders from Mr McDonald I was offered no other explanation, but more importantly, no remedy.
8. Sometime following this revalation [sic] I contacted the Federal Circuit court and explained what had happened in detail. The person I spoke to kindly explained that I could still lodge the claim along with an Affidavit explaining why it was lodged later than the required 14 days and was directed as to where to find the appropriate forms on the Federal Circuit court’s website. I was also notified about a service called Justice Connect who help people prepare to self-represent in court.
9. After several conversations with Justice Connect and after providing them with all relevant documents, we met up just prior to Christmas 2019 to discuss the case. Whilst Justice Connect were no-where as helpful as I was hoping, they still did point me in the right direction to hopefully appropriately filling out the court documents.10. Whilst I’m unaware of any measures of holding my previous solicitors to account for their grevious [sic] oversight, I can only throw myself at the mercy of the court and appeal to the court’s interest in liberty and justice to allow my very strong case for a Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection to proceed.”
Respondents’ Case
The respondent filed an outline of submissions on 17 April 2020 which states:
“Background and summary
1. Damien Hole was employed by the Secretary of the Department of Health and Human Services, on behalf of the State of Victoria (Respondent), as a Child Protection Practitioner, from 15 January 2018 to 27 June 2018 (Employment). Mr Hole was employed as a non-ongoing employee, to replace an employee on leave, for a maximum period of 15 January 2018 to 23 July 2018.
2. During Mr Hole’s Employment, the terms of the Victorian Public Service Enterprise Agreement 2016 (VPS Agreement 2016)2 applied to his Employment pursuant to s52 and s53 of the Fair Work Act 2009 (Cth) (FW Act).
3. Mr Hole’s Employment was subject to a probationary period, which was initially for a period of three months.3 The probationary period applied in accordance with clause 15.4(b) of the VPS Agreement, and was capable of being extended for a period of a further three months pursuant to clause 15.4(d) of the VPS Agreement.
4. On 28 March 2018, the Respondent gave notice to Mr Hole that his probationary period would be extended by a further three months.4 The probationary period, and its extension, were signed by Mr Hole and Robyn Kleeven (Acting Team Manager, Case Management). Ms Kleeven is one of the people referred to in Mr Hole’s application to the Court.
5. During the Employment, Mr Hole reported to Bernard Attard (Team Manager, Case Management Team).5 Mr Attard is referred to extensively in Mr Hole’s application to the Court.
6. In June 2018, concerns were raised with the Respondent regarding Mr Hole’s interactions with clients of the Respondent. The Respondent does not rely on the content of those concerns, for the purposes of the extension of time application, but they may be relevant if an extension is granted and the Court is required to deal with Mr Hole’s substantive application. Concerns were communicated by various employees of the Respondent to Suzanne Bryans (Deputy Area Manager, Child Protection). Ms Bryans is referred to extensively in Mr Hole’s application to the Court. The concerns were considered by Kirsty Allan (Senior Workplace Relations Consultant) and Pam Williams (Director, Barwon Area).6
7. On 27 June 2018, the Respondent gave notice to Mr Hole that his Employment would be terminated with immediate effect, with payment of two weeks in lieu of notice. The Termination Letter informed Mr Hole that Ms Williams was of the view that Mr Hole had not met the conduct and performance requirements of his job, as set out in the Termination Letter.
8. As at the date of termination, the probationary period (as extended on 28 March 2018), had not yet expired.
9. Mr Hole was informed of the termination decision to terminate his Employment in a meeting attended by Mr Hole, Ms Bryans and Steve Vivian (Senior Supervisor) on 27 June 2019.9 Mr Vivian is referred to extensively in Mr Hole’s application to the Court.10. Mr Hole telephoned Alice Guiney (Manager, People and Culture) on 28 June 2018 to query why he had been terminated, and he and Ms Guiney spoke subsequently about the matter on 2 July 2018.10
11. In addition to the people referred to in paragraphs 4 to 10 above, another potential witness, if an extension of time is granted and the Court is required to determine Mr Hole’s substantive application, might be Ben Lehmann (Advanced Case Manager, Child Protection). Mr Hole’s application asserts that his alleged ‘first employment complaint’ was made by him to Mr Lehman.
12. On or about 18 July 2018, Mr Hole made an application pursuant to s365 of the FW Act for the Fair Work Commission to deal with a dispute about his dismissal, alleging that he had been dismissed by the Respondent in contravention of Part 3- 1 of the FW Act (FWC Dispute).11 Mr Hole was represented in the FWC Dispute by McDonald Murholme Lawyers.12
13. On 27 July 2018, the Respondent filed and served a response to the FWC Dispute.13
14. The Fair Work Commission conducted a conciliation conference to deal with the FWC Dispute on 21 August 2018.14
15. On 30 August 2018, the Fair Work Commission issued a certificate pursuant to s368 of the FW Act, certifying that it is satisfied that all reasonable attempts to resolve the FWC Dispute have been, or are likely to be, unsuccessful (FWC Certificate).15
16. The 14 day period under s370(a)(ii) of the FW Act, referred to at paragraphs 22 to 23 below, expired on 13 September 2018.
17. To the best knowledge of William Tucker (the solicitor with carriage of the proceeding on behalf of the Respondent), subsequent to the issuing of the FWC Certificate on 30 August 2018 and until 25 February 2020, neither Mr Hole nor his lawyers engaged in any communications with the Respondent about his Employment, the termination of his Employment or the FWC Dispute.
18. On 25 February 2020, Mr Hole filed a general protections court application under Division 2 of Part 4-1 of the FW Act, alleging that his dismissal and other alleged “adverse action” were taken in contravention of Part 3-1 of the FW Act (Application). The Application was filed with the Court more than 18 months after the issuing the of the FWC Certificate.
19. As the Application was filed with the Court out of time, the Application can only be dealt with by the Court if the Court extends time pursuant to s370(a)(ii).
20. The Respondent opposes the granting of an extension of time, for the reasons set out below.
Applicable legislation and principles21. The Application filed by Mr Hole on 25 February 2020 is a “general protections court application” within the meaning of s368(4) of the FW Act, because it is an application to the Federal Circuit Court under Division 2 of Part 4-1 of the FW Act in respect of an alleged contravention of Part 3-1 of the FWAct.
22. Section 370 of the FW Act – which applies to Mr Hole because his general protections court application is about his dismissal - provides that:
“A person who is entitled to apply under s365 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 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 .”23. Put another way, there is a 14 day time limit after the Fair Work Commission issues its certificate for an applicant such as Mr Hole to make an application to the Court. If the application is filed after 14 days has passed, it may only be determined by the Court if the Court decides to allow an extension of time under s370(a)(ii).
24. A leading authority in relation to this provision remains the judgment of Marshall J in Brodie Hanns v MTV Publishing Limiting (1995) 67 IR 298 (Brodie Hanns). Marshall J relevantly provided the following summary or principles at pages 299- 300:
“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.
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.
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.”25. More recently, the principles in Brodie Hanns were applied by White J in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 (Clarke). At paragraphs [5]-[6], White J referred to the legislative note set out above and also to the summary of principles in Brodie Hanns.
26. At paragraph [7] of Clarke, White J referred to the 1996 judgment of High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor). At paragraphs [7]-[9] of Clarke, White J held:
“Brodie-Hanns was decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553):
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.
Similarly, Toohey and Gummow JJ said (at 547):
The discretion … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.
(Citation omitted.)Section 371(2) of the FWA is different from the legislative provision considered in Taylor. In addition, the 14 day period which it fixes is much shorter than the three year period which the plaintiff sought to extend in that case. Nevertheless, I consider that the observations in Taylor just quoted are pertinent in the present context. That is especially so given that one of the forms of relief sought by the present applicant is an order that her employment be reinstated. Generally, the longer the period from a termination, the more difficult reinstatement of employment will be. The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty. The Parliament intends that applications under s 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion maybe minimised. In my opinion, this is an important consideration in relation to applications of the present kind.
Accordingly, I proceed on the basis that it is for the applicant to satisfy the Court that an extension of time is appropriate. That onus is to be discharged in the context that the legislature has fixed a short limitation period.”
27. The decision in Clarke was followed by O’Callaghan J in Molony v ATM Logistics Pty Ltd [2018] FCA 640 at paragraphs [6]-[10].
28. In relation to the taking into account of the merits of the substantive application (principle 5 in Brodie Hanns) it is relevant to note that, necessarily, a court considering an extension of time application can never come to a concluded view as to the merits of the substantive application. As Wilcox CJ, Ryan and Madgwick JJ, constituting the Full Court of Industrial Relations Court of Australia stated in Coyne v Ansett Transport Industries [1996] IRCA 468:
“The Court when dealing separately with an application for extension of time is usually confined to untested assertions, often of only one party, and must take an approach similar to that adopted in granting or refusing interlocutory injunctions.”
29. A similar approach has been followed, in the unfair dismissal context, by the Fair Work Commission and its predecessors. For example see the decision of the Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (10 November 2000, Print T2421) at [14]-[15], where the Full Bench held that the Commission should not embark on a detailed consideration of the substantive case, because to do so would encourage applicants to put on their whole evidentiary case and to cross-examine witnesses.
30. Applying the principles referred to above and for the reasons set out below, the Court should refuse to grant Mr Hole an extension of time pursuant to s370(a)(ii).
Prima facie position: time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend31. Mr Hole has provided an affidavit dated 18 February 2020 to explain his delay in filing the Application (Hole Affidavit). The Respondent submits that the Hole Affidavit does not provide an acceptable explanation for the delay, which would make it equitable to extend time pursuant to s370(a)(ii).
32. The starting point in considering whether there is an acceptable explanation for the delay, which would make it equitable to extend time pursuant to s370(a)(ii), is the terms of the FWC Certificate itself. The FWC Certificate put Mr Hole plainly on notice that he had only 14 days to make an application to the Court, unless the Court extends the time for making such an application.
33. The FWC Certificate contained the following text (emphasis as per the original):
“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. For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both of the parties. This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application.”34. Mr Hole’s evidence, in summary form, is as follows:
“(a) After the hearing…” (it is presumed that this means after the conciliation conference on 21 August 2018, but apart from that no date is provided), a solicitor from McDonald Murholme referred to as “Sakorika” (which might be Ms Sagorika Platel, a solicitor who was employed by McDonald Murholme), “…explained the next process was to lodge the certificate with the Federal Circuit Court, the timeframe was also mentioned…”;
“(b) Once my lawyer had determined the amount I was told all the paperwork would be filed with the Federal Circuit court and I was to just wait until I was notified of a listing for a court date.”;
(c) no other explanation is provided for the delay of 13 months between August 2018 and September 2019, and Mr Hole does not describe any steps he took to progress the matter or to make inquiries of McDonald Murholme over that 13 month period;
(d) in September 2019, after he “…decided to just touch base with my lawyers”, Mr Hole was informed that his “paperwork had not been lodged with the Federal Circuit court”;
(e) no evidence is given of any steps taken in September 2019 to progress the matter, once Mr Hole was informed that his application had not been filed with the Court, nor any explanation for this part of the delay;
(f) on 2 October 2019, Mr Hole met with Alan McDonald, Managing Partner of McDonald Murholme, who “… could not explain why the forms had never been lodged with the Federal Circuit court”;
(g) no explanation is given why Mr Hole, having been informed back in August 2018 that there were only 14 days from the issue of the FWC Certificate unless an extension was granted,21 did not take immediate steps after the meeting on 2 October 2019 to file an application and seek an extension of time;
(h) “Sometime following this revelation…” (it is not stated whether this was in October, November or December 2019), Mr Hole “contacted the Federal Circuit court and explained what had happened in detail. The person I spoke to kindly explained that I could still lodge the claim along with an Affidavit explaining why it was lodged later than the required 14 days and was directed where to find the appropriate forms on the Federal Circuit court’s website”;(i) it is apparent that Mr Hole, having been informed by the Court Registry that he could file an application seeking an extension of time, and being directed to where to find the relevant forms on the Court website, still did not do so for a number of months until 25 February 2020 – no explanation is provided why he did not do so;
(j) having been provided the details of Justice Connect by a Court Registry official,23 Mr Hole had “…several conversations with Justice Connect…”, including a meeting “…just prior to Christmas 2019 to discuss the case… they still did point me in the right direction to hopefully appropriately filling out the court documents”; and
(k) no explanation is given for the delay of two months between Christmas 2019 (by which time Mr Hole had knowledge of and access to the Court forms, and advice from Justice Connect) and 25 February 2020 (when Mr Hole finally filed the Application with the Court).35. The Respondent submits that Mr Hole’s evidence, summarised above, does not provide an acceptable explanation for the delay which makes it equitable to extend the 14 day time limit.
36. Mr Hole’s evidence about McDonald Murholme’s failure to issue proceedings at the outset might be taken to explain some of the delay, but it does not explain why Mr Hole sat on his hands for 13 months before making inquiries of his lawyers.
37. Nor does Mr Hole give any acceptable explanation why, after his discussion with Mr McDonald on 2 October 2019, he did not take immediate steps to file an application seeking an extension of time.
38. After the discussion with Mr McDonald on 2 October 2019, Mr Hole was then provided, on his own evidence, with an explanation that he could file an application seeking an extension of time, and was given direction as to where to find the relevant forms on the Court’s website, both by the Court’s Registry and by Justice Connect. He gives no explanation why he failed to do so for the period from 2 October 2019 to 25 February 2020.
39. In the circumstances, there is not an acceptable explanation for the full period of the 18 month delay which would make it equitable to extend time. The prima facie position, that time limits should be complied with, should be given effect.
Action taken by the Applicant to contest the termination, after the grant of the FWC certificate40. It may be accepted that Mr Hole took steps after the termination of his employment to contest his termination: the Respondent refers to Mr Hole’s discussions on 28 June and 2 July with Ms Guiney seeking an explanation of the reasons for the termination and his subsequent engaging of lawyers to file the FWC Dispute. However, subsequent to the issuing of the FWC Certificate on 30 August 2019 and prior to 25 February 2020 (that is, for the entire 18 month delay that is the subject of the extension of time application), Mr Hole did nothing to contest the termination.
Prejudice to the Respondent caused by the delay41. The delay of 18 months before filing the Application has caused significant prejudice to the Respondent.
42. In circumstances where it had received no communications from Mr Hole or his representatives subsequent to 30 August 2018,28 it was reasonable for the Respondent to assume that the FWC Dispute was not to be pursued in Court and therefore not to take steps to prepare its case to defend the proceedings. There were no proceedings for it to defend.
43. Paragraphs 4 to 11 above refer to the names of a number of potential witnesses whose evidence may be required if an extension of time is granted, in relation to the substantive merits of the Application. There are a number of difficulties in relation to the obtaining of instructions from those potential witnesses, and in calling evidence from them, including:
(a) Robyn Kleeven ceased to be employed by the Respondent on or about 31 May 2018 (ie the month before the Termination), and her new employment details are unknown;29
(b) Kirsty Allan ceased employment with the Respondent in late 2018, and she is believed to work with a different entity, WorkSafe Victoria
(c) Ben Lehmann ceased employment with Respondent on or about 13 March 2019, and his new employment details are unknown, and
(d) Pam Williams (while employed by the Respondent) is currently seconded to Bushfire Recovery Victoria. While Ms Williams will be returning to the Respondent soon, this will be in a leadership role relating to the Respondent’s response to COVID-19, which is anticipated to cause significant difficulty, in the current environment concerning COVID-19, in obtaining instructions directly from Ms Williams about this proceeding. Ms Williams was the decision-maker in relation to the Termination.44. Quite apart from the prejudice referred to at paragraph 43 above, as stated by McHugh J (with whom Dawson J agreed) in Taylor at 556, “the long delay gave rise to a general presumption of prejudice”. A number of the matters alleged in Mr Hole’s Application are alleged discussions. Again using the language of McHugh J in Taylor at 556, “By the time the application for extension was made, it is likely that such conversations, if they took place, would be no longer within the memory of the participants.” Even if the fact of a discussion occurring is recalled, the details may not. This causes a real risk of prejudice for the Respondent.
45. The risk of prejudice to the Respondent is particularly stark when it comes to the impact that the delay in issuing proceedings might have had on the recollections of the decision-maker(s). The nature of a general protections claim alleging contravention of s340 of the FW Act is that the focus of the Court’s inquiry is to be “upon the reasons for [the decision maker(s)] taking the adverse action. … The enquiry involves a search for the reasoning actually employed by [the decision maker]. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.” The inquiry is not whether the adverse action can be characterised as connected with the employee’s exercise of a workplace right: there is no requirement that the adverse action and the workplace right be completely disassociated from one another. Further, “Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.” It is insufficient that the conduct, which gives rise to the reason for that action, happens to be the exercise of a workplace right. Further, “The inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker.”
46. Put another way, what is required, for there to be a contravention, is that the “actual reason of the decision maker[s], in his or her own mind” be the employee’s exercise of a workplace right.
47. In circumstances where “adverse action” as defined has occurred (such as the Termination), there will be an onus of proof in the substantive application on the Respondent to prove that the reasons did not include an alleged unlawful reason. In order for the Respondent to discharge this onus of proof, it will as a practical matter be necessary to call direct testimony from the decision-maker(s) who made the decision. This flows from the High Court’s decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (Barclay) at [45], where it was found that evidence of the decision- maker which is accepted as reliable is capable of discharging the onus under s361 upon an employer, even though an employee may have exercised a workplace right.
48. Had Mr Hole filed his Application within the 14 day period after 30 August 2018, in all likelihood the proceeding would have been listed for trial in 2019 (or at the latest early 2020). Instead, particularly given the difficulties with conducting trials given the current COVID-19 crisis, and given the demands on the Court’s resources, it is likely that a trial will not be conducted until mid-2021 at the earliest (but quite possibly later). This would involve a trial being conducted three years after the relevant events (the termination occurred on 27 June 2018).
49. The decision-maker(s) may understandably by the time of the delayed trial have less than perfect recollections of the reasons for terminating one employee’s employment, years ago, during his probationary period. This will put the Respondent at a material disadvantage in discharging the reverse onus of proof in s361 of the FWAct.
50. As stated by Toohey and Gummow JJ in Taylor at 547 (footnotes omitted):
“Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
"It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”
51. The Respondent respectfully submits that the matters set out at paragraphs 42 to 49 above, there is sufficient evidence of prejudice to the Respondent occasioned by the delay. Mr Hole cannot discharge the onus to show that the prejudice is not material.
52. In the context of a 14 day time period for proceedings to be filed, and mindful of the comments of White J in Clarke set out at paragraph 26 above, an 18 month delay is unacceptable and imposes too much prejudice on the Respondent.
Even if there were an absence of prejudice, that alone is an insufficient basis to grant an extension of time53. Strictly speaking, principle 4 in Brodie Hanns does not apply, because there is not an absence of prejudice to the Respondent. However, even if there were no prejudice to the Respondent, the absence of prejudice would provide an insufficient basis to grant an extension of time. This reflects the position that limitation periods are meant to be complied with – consistent with the judgment of the High Court in Taylor, as referred to in the extract from Clarke set out at paragraph 26 above. It is another factor which tends against the extension of time – particularly an extension of almost 18 months.
Merits of the substantive application54. As stated in paragraphs 28 to 29 above, an application for extension of time is not the appropriate time to engage in an in-depth analysis of the merits. None of the witnesses to the ultimate application will have been examined or cross-examined as to the merits of the Application.
55. As to the merits of the Substantive Application, while it may be accepted that the Termination was “adverse action” within the meaning of s342(1) Item (1)(a) of the FW Act, other adverse action as alleged at Part G paragraph 2 of Mr Hole’s Form F2 Claim filed on 25 February Application (Claim) will be contested by the Respondent. Further, at the trial of the proceedings (if an extension of time is granted), it will be contested whether various of the “complaints” alleged in the Claim were made by Mr Hole and, even if they were made, whether they were “a complaint or inquiry… in relation to his or her employment” within the meaning of s341(1)(c)(ii) of the FW Act. A further evidentiary matter will be whether – even if there were complaints or inquiries covered by s341(1)(c) of the FW Act, whether they were within the knowledge of the relevant decision-maker(s) at the time of engaging in the conduct said to constitute adverse action.
56. The reverse onus of proof in s361 and other considerations referred to at paragraphs 45 to 47 above relate only to the reasons for the Respondent engaging in conduct. They do not apply to other elements of the alleged contravention. In relation to those other elements, the burden of proof will fall on the Mr Hole, as the prosecutor of the allegations against the Respondent. It is Mr Hole who will need to satisfy the Court that each element of each allegation has been proven on the balance of probabilities, having regard to the dictum from Briginshaw v Briginshaw (1938) 60 CLR 226 at 361-2.39 That is, this Court ‘must feel an actual persuasion of [each alleged facts] occurrence or existence before it can be found…. a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. Mr Hole will be required to prove his case on the balance of probabilities to the reasonable satisfaction of the Court, which standard will not be met by “inexact proofs, indefinite testimony, or indirect inferences.” In this respect the Court will be required to take into account: the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. Adverse findings under the FW Act are ‘not findings lightly to be made’.
57. On the material before the Court, and at this stage of the proceeding, the Court cannot conclude that the merits of the substantive Application are strong one way or the other. For this reason, the Respondent submits that the merits of the substantive Application are a neutral consideration.
Consideration of fairness as between the Applicant and other persons in a like position58. The Respondent is not aware of any other of its own former employees who, 18 months after the issuing of a certificate by the Fair Work Commission, have sought an extension of time to file a general protections application.
59. However, consistent with the judgments in Clarke and in Taylor referred to at paragraphs 26 above, limitation periods exist for important policy reasons. Where the limitation period is particularly short – in this case 14 days – that is all the more reason not to extend time out to 18 months.
60. A consideration of recent cases supports a finding that the delay in this case – some 18 months – is more than other cases where the Courts have considered it appropriate to grant an extension of time. One of the cases referred to above, Clarke, involved a period of 4 months between the granting of the relevant FWC certificate and the filing of a general protections court application. The application for an extension of time was refused.
…61. In another case, involving a 99 day period between the issuing of the FWC certificate and the filing of a general protections court application (but only 14 days between the applicant becoming aware that the FWC certificate being issued), an extension of time was granted.
62. Of course, no two cases are the same, and the discretion of the Court under s370(a)(ii) is to be exercised having regard to the circumstances of each case. There is no bright and shiny line as to how long an extension of time is too long – other than the bright and shiny line of 14 days presented by s370(a)(ii) itself. However, given that the Court has refused extensions of time in relation to delays much shorter than 18 months, fairness as between applicants is either a neutral consideration or tends towards the refusal of an extension of time.
Conclusion: the extension of time should be refused63. For the reasons set out above, the Respondent submits that an extension of time pursuant to s370(a)(ii) should not be granted. The Application should be dismissed.” (footnotes from original omitted)
Applicant in reply
The applicant then filed a reply on 4 May 2020 which stated:
“1. On 25th Feburary [sic], Applicant filed a Claim Form along with an Affidavit requesting an extension of time to file the Form 2 Claim under the Fair Work Act 2009 alleging dismissal in contraventions of a general protection.
2. The Affidavit asserts that the reason for late lodgement is Representative Error. The Applicant engaged law firm McDonald Murholme to act on his behalf to represent him over his unlawful termination by the Respondant [sic]. The Applicant placed himself in the care of the professional law firm to navigate the legal processes of acquiring justice on his behalf; this representation constituted all necessary paperwork and representation.
3. The Applicant has no legal training and no knowledge of the legal processes and therefore relied on McDonald Murholme who kept the Applicant up to date with each process.
4. As written in the Applicant's Affidavit, the Applicant affirms that following the Fair Work Commission hearing on 30th August 2018, the Applicants legal representative Sagorika Platel convened for a meeting outling [sic] the next stage which was lodging the certificate with the Federal Circuit court and then awaiting a court date. Ms Platel also advised that a letter was being drafted to be sent to DHHS.A discussion was also had between Ms Platel and Applicant regarding the amount of compensation to be claimed based off a formula.
5. This meeting between Applicant and Ms Platel was confirmed by managing partner Alan Mcdonald of McDonald Murholme on October 2nd 2019.Mr McDonald could confirm the meeting by the records in the case file,yet was unable to explain why the certificate/application wasn't lodged with the Federal Circuit Court.
6. Mr McDonalds could only offer that Ms Platel had not only left the firm,but also the country.
7. Fair Work Commission says;
8. Representative error
9. A late lodgment [sic] of an application due to representative error may be grounds for an extension of time.
10. There is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.
11. The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.
12. Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.
13. Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.
Robinson v Interstate Transport Pty Ltd [2011) FWAFB 2728 (Watson SDP, Drake SDP, Harrison C, 17 May 2011), [(2011) 211 IR 347).
Length of time outside timeframe: 3 days
The employee's initial representative overlooked a reminder to file the application for a general protections claim. The employee had given specific instructions to his representative to file the claim.
On appeal it was found that he was entitled to rely on his representative and was blameless
in relation to the delay.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.
Wilson v Woolworths [2010) FWA 2480 (Richards SDP, 15 April 2010).
Length of time outside timeframe: 15 days
The applicant attempted to address matters by way of direct communication with the respondent after his employment had been terminated.
That is a matter which displays an intention to contest the application and to demonstrate to the respondent that despite the decision to terminate his employment, the issues in contest had not reached finality and the respondent was therefore on notice that the matters would be contested in the future.14. In the Respondants [sic] outline of submissions it states;
Mr Hole telephoned Alice Guiney (Manager, People and Culture) on 28 June 2018 to query why he had been terminated, and he and Ms Guiney spoke subsequently about the matter on 2 July 2018.10
This is an admission that the Applicant had direct communication with the Respondant after his employment had been terminated which displays an intention to contest the matter.
The Applicant also telephoned Ms Donna Cole from DHHS head office on 28th June to enquire what could be done .Ms Cole was aware of the Applicants harsh treatment in the Geelong office and had earlier attempted to intervene on his behalf.15. Mr Avallone,for the respondant [sic] asserts that;
,subsequent to the issuing of the FWC Certificate on 30 August 2018 and until 25 February 2020, neither Mr Hole nor his lawyers engaged in any communications with the Respondent about his Employment, the termination of his Employment or the FWC Dispute.16
The respondant [sic] at the Fair Work Hearing not only made no concessions but rejected every aspect of the allegations;(Annexure 6).The Respondent rejected any breach of the Fair Work Act.The Respondent rejected a breach of the Act's workplace right's provisions.The Respondent rejected the Applicant was discriminated against on the grounds of gender and age.The Respondent rejected the Applicants statement that there was no other explanation available. Clearly there was no motivation on the Respondents behalf to negotiate any aspect of the claim,so on the Applicants behalf it was full steam ahead to the court proceedings16. In an email to Applicants solicitors following his discussion with Ms Guiney; Email to Katherine Leonard of McDonald Murholme 3/7/2018 (Annexure 2)
Hi Katherine,
i had a conversation with the head of Human resources for DHHS yesterday,Alice Guiney,who made enquiries regarding my sacking.Upon following up with the Geelong office,this is what she told me.
somebody overheard me having a conversation where i referred to the mother in my case for domestic violence "giving as good as she gets".
somebody overheard me in the office where i was sitting with 2 children who had been removed several hours earlier,We were waiting because we were trying to find them a placement for the night and somebody overheard me saying they were going to kid jail.
i had been told not to use my personal car for work.1. With reference to the "giving as good as she gets",that was a direct quote from another CP worker who was quoting the police from the time the children were removed previously on Anzac day,25th April in relation to domestic violence claims which were supported by her son.Curiously,when the previous worker,Maryanne Foreman heard we once again had to intervene,she said she wanted to get the mother in a headlock and punch her in the head,to which i replied "you realize you're threatening violence on a victim of domestic violence",while the team manager Bernard Attard sat there laughing.
2. With the 'kid jail' reference,that wasn't made by me but rather the senior prac,Steve Vivian.The comment wasn't designed to be funny or insulting or any way negative,but instead reassuring.The young teenage girl kept pressuring [sic] Steve as to where she was staying that night,Steve didn't know because that's what he was working on and tried to reassure her that the placement wouldn't be bad.In this case the eavsdropper was the one who was inappropiate,she came over and was putting her hands all over the girl,on her head and back,where touching a child is a big no-no.Currently there is an active investigation underway on a worker who did precisely this to this precise teenage girl.The worker has been stood down from meeting with clients until the investigation is complete.The police investigation took 7 weeks,now DHHS have to do theeir [sic] own investigation.
3. With the work car policy that specifically was about me having to drop off a Working With Children Check application to a carer.The carer's were never home during the day and because they lived in Pointcook and i lived in Pointcook,just actually around the corner i thought it was a good idea to drop in on the way home .I never not did use a work car,and i never disputed or argued the point,it was due to me being naive as a new worker.
Once again,at no time did anyone speak to me about not only about these issues,but any issues.I am of the firm opinion that if these matters were raised with myself for discussion i would still have my job today.
{Annexure 2)17. This email confirms the former employee had every intention to dispute the dismissal. It also confirms the case has merit,that the Applicant was victimized and discriminated against.
Email to Katherine Leonard of McDonald Murholme 3/7/2018 (Annexure 3)
Hi again Katherine,
sorry,you're probably sick of me by now,but i forgot an important point in the previous email.The children i was falsely accused of making the kid jail reference to had to be picked up from school by another CP worker on 27th June.Chiara Mammino reported to me once back in the office that the children talked non stop about me,they wanted to know where i was,when they would be seeing me again and were talking excitedly about previously being with me and thing's we'd done.
Another CP worker Ben Lehman reported to me that his client,six year old Sabrina and i had a good relationship because whenever he saw Sabrina she would always talk about me and ask about me despite having contact with many different workers.
Several weeks ago an investigation [sic] was held because of disclosures made by a 5yo in relation to myself.Sienna spoke in such glowing terms that workers thought there was a conflict of interest because i had known the little girl for so long and outside of work when the reality was i had met her only a few times,but like other clients i was able to engage them and form strong positive relationships.And DHHS said i wasn't right for the job.
Email to Katherine Leonard 1/7/2018 {Annexure 4)
Hi Katherine,
my name is Damien Hole,i met with Allen on Friday,11.00am regarding a claim against DHHS.Following on from that meeting,with more time to consider,i would like to add some important points to my claim.
1. No Time Sheets.Time sheets are supposed to be filled out every week on Friday,yet for the first 3 months i didn't do a single timesheet.Nobody showed me how to do them,nobody ever asked me why i wasn't doing them.Timesheets are important for if you do overtime you get compensated for such,despite me doing overtime i was never able to claim despite me asking several people on different occasions [sic] how to do it.
2. No "Go To Person".I found out from more senior staff that new employees are assigned a "go to person" within the team whose role it is to help navigate the new workspace.I never 4)received one.This was important because no-one ever told me what time i started and finished work,about lunch,what time and how long for,how to use the phones and how to use the keyless car's.
3. The training team at head office were so concerned with how i was being treated they contacted the Geelong office on my behalf to raise their concerns.Donna Cole from head office strongly recommended that i be given a mentorship with somebody in the Geelong office.Donna onsent all the relevant material to my Team manager Bernard Attard and myself for the mentorship,which i was excited about and saw as an answer to my problems,but sadly was never implemented.
This is important because DHHS said they had to extend my iniatial [sic] probation period from 3 to 6 months because i didn't meet the standards required and there were concerns about me.The issues i raised here coupled with Fridays interview clearly demonstrates that senior staff's input into myself as a new employee were zero,zero direction and zero help and the deficiencies were laid clearly at the feet of DHHS.
Kind regards
Damien18. With respect to the application for the extension of time,I refer to;
Brodie Hanns v MTV Publishing Limiting (1995) 67 IR 298 (Brodie Hanns).
Marshall J relevantly provided the following summary or principles at pages 299- 300:
"l.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."
The letter (Annexure 1) from my legal representation states that if no settlement is reached at Fair Work then the matter proceeds to court.
After the conciliation hearing,Ms Platel confirmed with the Applicant that the matter would be proceeding to the Federal Circuit Court and the meeting consisted around the planning for the next stage.
The Applicant took action to contest the termination because of a phonecall he placed to Ms Donna Cole, a trainer at DHHS head office on 28th June 2018.The Applicant told Ms Cole he had just been sacked without any explanation as to why and who could he speak to at DHHS about it.Ms Cole furnished the Applicant with the phone number of Alice Guiney.The Applicant rang Ms Cole because she had been aware of the Applicants mistreatment at the Geelong office,her awareness only heightened after another worker (lmogen)from the Geelong office told Ms Cole "the treatment of Damien has been disgusting" and had tried to intervene on his behalf.19. The Applicant rang Ms Guiney, again taking action to contest the termination to try and raise the issue and have it dealt with internally and to lodge some sort of official complaint.
20. To further support the Applicants claim of representative error, I draw your attention to the current case Damien Hole v DHHS MLG642/2020.At previous hearing on 31/3/2020,neither Mr Avallone nor a representative from DHHS lodged a response to the court,nor did anybody confirm their appearance at the court scheduled hearing for 31st March 2020.At 5.00pm the night before the court case I had the Federal Court ringing myself looking to provide names and phonenumbers of potential representatives.Based on previous experience clearly lawyers aren't the most reliable/responsible people.
21. There is no prejudice to the Respondant [sic] in granting an exemption of time.All of the relevant material is stored in DHHS case notes and the supervision diaries.No body will have to rely on their memory and the excuse that witness whereabouts are unknown is moot.It is a functional requirement of Child protection workers to record every conversation and interaction for the case files.Furthermore, several of the witnesses the respondant [sic] refers to,the Applicant has never met,never seen and didn't even know existed.
22. The merits of the application may be taken into account in determining whether to grant an extension oftime. [sic]
The Respondant [sic] was subjected to verbal abuse,spreading of false rumors,the interference in his personal property,the excluding and isolating of the Respondant,psychological harassment,the giving of assignments where the Respondant [sic] was set up to fail and the deliberate with-holding of information that was vital to complete the job.
Because of the number of complaints,the nature of the complaints and the large number of people involved these complaints were recorded by way of writing down,which I was present for on a number of occasions.
DHHS being a government department that employs thousands of people both directly and indirectly is an instigator and implementor of government policy that regulates against not only sex and age discrimination,but disability,race and,religion to name a few.The government needs to be beyond reproach in the upholding and enforcing of these policies,particularly when it occurs within one of their own departments.
It is therefore within the public interest to have this matter heard,which gives the application merit.23. At paragraph 26 of Mr Avallone' submission attention is given to one of the forms of relief sought is reinstatement.Generally the longer the period from a termination, the more difficult reinstatement of employment will be.
However,the Applicant is not seeking reinstatement.The Applicant does not wish to be employed by DHHS.The Applicant wants what he has always wanted; to be able to stand before a court,present evidence and hold the people responsible to account for their actions.24. At paragraph 34 of Mr Avallone' submission,he summises that the Respondent did not take steps to progress the matter or to make enquiries to McDonald Murholme over that period.
Below is the email (Annexure 5) the Respondent sent to McDonald Murholme on 15/7/2019,stating how long it had been since the Fair Work hearing and trying to gauge an approximate court date.
on 15/07/2019 4:02 PM
Hi Katherine,
just following up on my application for the hearing at Federal Circuit Court.It's been 11 months since the Fair Work hearing and i just haven't heard anything.I realise that there is probably a fair backlog of cases,but i'm just trying to gauge an approximation for a date;any light you can shed on the matter would me most appreciated.
Kind regards Damien25. At paragraph 34 & 35 of the Respondents submission,Mr Avallone was quite unfair and unkind with his summary.
Mr Avallone surmised that the Applicant was somehow lazy and lacking motivation, which is not true.
Every step of this court application process thus far has been one of processes and as much as I'd like to jump the lines and have my matters dealt with swiftly and promptly, I know I just have to go through the process.Dealing with 'Justice Connect' took a substantial amount oftime,possibly because it's a free service,but the process stretched out over several months and that was something I had no control over.26. With reference to paragraph 37,38 & 39 of the Respondents submission,the Applicant telephoned the Federal Court immediately upon finding out that his legal representation had failed to lodge the application,prior to his meeting with Mr McDonald on 2/10/2019.The advice the Respondent received from the court set him on his path;the Respondent contacted 'Justice Connect" for the purpose of self-representation as advised and followed the direction given.
27. Neither the Federal Court,nor Justice Connect told or advised the Respondent to immediately lodge an extension oftime, but rather apply for the extension oftime via an Affidavit when lodging the Form 2 Claim Under the Fair Work Act.
28. The Respondent's claim of prejudice because the passage oftime will diminish witness testimony is not valid.The Respondent has received legal advice that matters of this nature take approximately 2 years to reach the court to be heard.
The Respondent provided a lengthy and detailed defence at the Fair Work hearing,which will form the defence at future proceedings.
The Applicant, as stated in paragraph 20 of this response affirms that the required evidence is located within the lengthy and detailed notetaking required from child protection workers and not reliant on recollections and memories.
CONCLUSION :28. The Applicant contested the termination by telephoning Ms Donna Cole, a trainer at DHHS head office on 28/6/2018
29. The Applicant further contested the termination by telephoning Ms Alice Guiney,(Manager,people and culture) on 28/6/2018
30. The Applicants lawyer,McDonald Murholme states in a letter 7/8/2018 (Annexure 1) that unless a settlement is reached at the Fair Work Commission conference on the 21/8/2018 then the matter will proceed to court where evidence will be taken on oath.
31. Following the Fair Work conference, the Applicants solicitor,Ms Sagorika Platel confirmed with the Applicant the matter proceeding to court.Ms Platel told the Applicant that the certificate from Fair Work would be lodged with the Federal Circuit Court as soon as it's sent through to the offices of McDonald Murholme.Ms Platel advised that it is a lengthy waiting time and would contact the Applicant upon receiving a court date.
32. On 15/7/2019 the Applicant contacted the office of McDonald Murholme by way of email to Katherine Leonard (Annexure 5) specifically following up on the Applicants application to the Federal Circuit Court, specifically that he had not heard anything and was there an approximation for a date.
33. On 2/08/2019 the Applicant met with the managing partner of McDonald Murholme,Alan McDonald,who confirmed by way of the Applicants case file the conversation with Ms Platel following the Fair Work Conference on 21/8/2018,yet was unable to offer an explanation as to why the Fair Work certificate was not lodged with the Federal Circuit court.
34. The Applicant contacted the Federal Circuit court immediately upon finding out the Fair Work certificate had not been lodged and was advised to lodge an Affidavit explaining the circumstances along with the court application.The Federal court also directed the Applicant to Justice Connect.
35. Justice Connect took several months in offering its support to the client.Justice Connect advised the Applicant (Annexure 6) to attatch [sic] the Affidavit for the extension of time along with the court application.
36. At all times throughout these proceedings the Applicant has followed the legal advice given by his solicitors,the Ferderal [sic] Court and Justice Connect.A denial of future proceedings will be a denial of justice.
37. There would be no prejudice to the Respondant [sic] because nobody would have to rely on memory for evidence.All the required evidence is contained within case notes,supervision diaries and other written forms of record taking.
38. The case has merit.It is a very strong case,over a lengthy period of time,involving many people.
DHHS is a government department and deserves to be scrutinized regarding allegations of this nature.
THE EXTENSION OF TIME SHOULD BE GRANTED
For the reasons set out above,the Applicant submits that an extension of time should be granted allowing the Applicants Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection to proceed.
THE EXTENSION OF TIME SHOULD BE GRANTED
For the reasons set out above,the Applicant submits that an extension of time should be granted allowing the Applicants Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection to proceed.”
The applicant’s reply also had six annexures attached which in summary were correspondence and various emails between the applicant and his former solicitors, McDonald Murholme, and a community legal centre.
Principles
The principles which govern applications for extension of time of this type are as follows.
The starting point is s.370(2)(a)(ii) of the FW Act. It provides that a general protections court application must be made within 14 days of the issue of the certificate by the FWC “or within such period as a court allows on an application made during or after those 14 days”.
Section 370 also contains a note (Note 2) as follows: “In Brodie Hanns v MTV Publishing Ltd (1995) 67 IR 298 (“Brodie Hanns”), 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.”
As White J said in Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [5]:
“This note appears to be in the nature of a useful reference by the Parliament, i.e. to assist readers in identifying matters which may bear on the exercise of a court’s discretion under the provision. Some authorities have addressed the question of whether the note forms part of the [Fair Work Act 2009 (Cth)] at all (for example, Transport Workers’ Union v School Bus Contractors Pty Ltd[2011] FMCA 28; (2011) 201 IR 327). In my opinion, it is not necessary to consider that question for the purposes of the resolution of the present application. It is sufficient to treat the note as a reference to the kinds of considerations which may be relevant.”
The principles referred to in the note referred to at paragraph 25 are 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.White J in Clarke v Service to Youth Council Incorporated[2013] FCA 1018 at [7] also pointed out that the decision referred to in the note:
... was decided before the High Court’s decision in Brisbane South Regional Health Authority v Taylor[1996] HCA 25; (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553):
“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. ...A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”
In that authority, Toohey and Gummow JJ said (at 547):
“The discretion ... is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.”
Consideration
The applicant’s reasons for why he requires an extension of time have been set out above. Given those reasons I note that the decision of Clark v Ringwood Private Hospital(1997) 74 IR 413, (“Clark”) provided guidance on the relevance of representative error in extension of time cases under previous legislation.
In Clark, the then Australian Industrial Relations Commission (at page 418) set out the following guidelines to be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:
“1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
2. A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
3. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application.
For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps in inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
4. Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8).”The respondent’s submissions referred to the decision of the Federal Court in Molony v ATM Logistics Pty Ltd[2018] FCA 640 (“Molony”) which whilst not referring to Clark did consider the situation of an extension of time where the applicant said there had been representative error.
In his affidavit filed 25 February 2020 the applicant deposed to a conversation with a solicitor at McDonald Murholme in or around August 2018 and then that he “decided to just touch base with” his lawyers in the middle of 2019.
The applicant further deposed to contacting “a person” at the Court “sometime following” a discussion with the managing partner of McDonald Murholme in October 2019. The applicant then deposes to “several conversations with Justice Connect” and meeting with them “just prior to Christmas 2019”.
The applicant’s position is that the delay was due to representative error. The applicant in his material referred to a number of decisions of the FWC and the decision in Brodie Hanns.
The respondent’s submissions were to the effect that the applicant’s evidence about representative error “might be taken to explain some of the delay, but it does not explain why [the applicant] sat on his hands for 13 months before making inquiries of his lawyers”. The respondent’s submissions were there was not an acceptable explanation for the full period of the almost 18 month delay.
Courts have accepted the principle that a client should not suffer by reason of an error made by his or her representative (see for example Jess v Scott (1986) 12 FCR 187 and Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176). However as the authorities referred to earlier make clear it is still necessary to focus on the conduct of the applicant.
In this case (unlike the decision in Molony) given the facts (and the period of delay) it is not possible to find that “it is difficult to imagine what else [the applicant] could have done to ensure his initiating proceedings was filed in time”.
The applicant’s material suggests he made no inquiries with McDonald Murholme for around 12 months. The applicant’s material then provides some explanation for what he did between then and when he formally lodged his application. Unlike the facts in Molony the delay in this case is almost 18 months after the FWC certificate was issued. Moreover there are gaps in the applicant’s own explanation for the whole of the period of the delay.
There is no affidavit material from his former representative (or otherwise) to corroborate the applicant’s allegations about their claimed failures and the advice he says he received (including from unnamed court officials). In any event, the applicant’s explanation does not suggest he attended to filing the application in a timely manner upon discovering what his former representative had not done, including following advice from Justice Connect as long ago as October 2019 (see Annexure 6 to Reply 4 May 2020).
Given the length of the delay is almost 18 months which is substantial, the explanation (such as it is) weighs against granting an extension of time. The longer the delay the more comprehensive the explanation must be: Tran v Minister for Immigration and Border Protection [2014] FCA 533. In the circumstances of this case the explanation is limited and the conduct of the applicant found wanting.
Action to contest termination
The applicant’s submissions addressed the action he said he had taken to contest the termination.
As the respondent noted in submissions “it may be accepted that [the applicant] took steps after the termination of his employment to contest his termination”. However after issuing the proceedings in the FWC (and the issue of the FWC certificate in August 2018) he took no steps to contest the termination until at least September 2019.
Prejudice
The respondent’s submissions relying on an affidavit of Mr Tucker (see for example paragraphs [24]-[25]) address the issue of prejudice by reference to the period of time that has elapsed, that a number of witnesses have ceased employment with the respondent and of those that remained the impact of the delay would be “particularly stark” on the recollections of the decision makers. For the reasons set out in its submissions at paragraphs [42] to [49] the respondent’s position was the applicant could not discharge the onus to show the prejudice would not be material.
Whilst the applicant disputed those claims of prejudice by the respondent as “not valid” I am not satisfied that is the case.
Merits
The applicant’s position is that the respondent is a “government department and deserves to be scrutinized”.
Generally, it would be improper for the Court to exercise the discretion to extend time where an application has no prospects of success.
The respondent submitted (correctly) that at this stage of the proceedings the Court cannot conclude the merits of the substantive application are strong one way or the other.
Other relevant matters
In terms of fairness the applicant alleges that the respondent has breached the FW Act in dismissing him for a prohibited reason and this tells in favour of time being extended. The respondent submitted limitation periods exist for important reasons and there is “no bright and shiny line as to how long an extension of time is too long”. Nonetheless it was submitted given the period involved here it was either neutral or favoured the refusal of an extension. I agree.
Conclusion
Mindful that a time limited has been prescribed in the FW Act, there is for the reasons set out above not an adequate explanation for the whole of the period of the delay by the applicant. Given the assessment of all the relevant factors the circumstances of this case are not such that it is appropriate for the Court to exercise its discretion to extend the time for the applicant to commence proceedings in this Court.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 30 July 2020
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