Jimenea v Dynamic Supplies Pty Ltd
[2013] FCCA 63
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JIMENEA v DYNAMIC SUPPLIES PTY LTD | [2013] FCCA 63 |
| Catchwords: INDUSTRIAL LAW – Fair Work – time for application – extension of time – no matter of principle. |
| Legislation: Fair Work Act 2009, ss.371(2), 361(1) |
| Cases Cited: Abela v Telstra Corporation Ltd [2012] FMCA 17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 |
| Applicant: | ELENA JIMENEA |
| Respondent: | DYNAMIC SUPPLIES PTY LTD |
| File Number: | MLG 1066 of 2012 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 13 December 2012 |
| Date of Last Submission: | 13 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Brien of Counsel |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Mr O'Grady of Counsel |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
That the time for bringing the Application be extended to 28 August 2012.
The matter be referred for Mediation before a Registrar on a date to be fixed.
Costs of the Application be reserved.
Liberty be reserved to the parties to mention this matter before me, by arrangement with my Associate.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1066 of 2012
| ELENA JIMENEA |
Applicant
And
| DYNAMIC SUPPLIES PTY LTD |
Respondent
REASONS FOR JUDGMENT
The Applicant seeks an extension of time within which to bring an application pursuant to the general protection provisions of the Fair Work Act2009. The Applicant lodged an application with Fair Work Australia pursuant to s.365 of the Act following her employment termination on 7 June 2012. Fair Work Australia issued a certificate pursuant to s.369 on 19 July 2012. The Applicant then had 14 days to make an application to the Court: see section 371. The application to the Court was not made until 28 August 2012, 26 days out of time. The Applicant seeks an extension of the time within which to bring the application.
Extension of time can be granted under s.371(2) of the Fair Work Act which provides:
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
Note: 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.
Whilst the note to the section is not taken to be part of the Act (see s.13 of the Acts Interpretation Act 1901 and see Abela v Telstra Corporation Ltd [2012] FMCA 17) the matters identified in Brodie-Hanns are important and relevant considerations in the exercise of the broad discretion provided for in the legislation. In Brodie-Hanns v MTV Publishing Ltd Marshall J said:
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 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.
Steps taken by the Applicant
The applicant was provided with a copy of the s.369 certificate under the Fair Work Act on 19 July 2012, which included notice of the 14 day time limit. It appears the Applicant understood the time limit, and set out to make enquiries to obtain a lawyer on a no win – no fee basis. She contacted a major law firm by telephone and commenced searching for community legal centres who may be able to assist her. On the 24th of July she contacted a second major law firm and on the 25th of July telephoned two community legal services. On the 26th of July she attended upon a third community legal service, by which time she was aware that she was unlikely to be provided with assistance on a no win – no fee basis.
The Fitzroy Legal Service provided her with the appropriate form to make a General Protections court application and advised her to complete it and file it with the Federal Magistrates Court. On 31st July she attended at the Court Registry. It seems she was referred to the State Magistrates Court Registry. She attended upon the State Magistrates Court Registry and says that a clerk advised her that “it was OK to lodge the application after the 14 day period”.
On the 1st of August 2012 she attended at the Law Institute to collect a referral letter for the Law Institute of Victoria referral service and put in train enquiries to obtain a lawyer under that scheme. Her further attendance at the Court Registry on the 2nd of August resulted in her being told she could file the application the following week. She then attempted to contact Pilch and JobWatch. On 16th of August Pilch advised that they could not assist her and she attended at the registry again on the 17th of August in an attempt to file her application. It appears that ultimately Pilch referred the matter to Clayton Utz, and her application was filed a few days thereafter.
Ultimately the application was filed 28 days out of time.
The Applicant confronted a number of difficulties in bringing her application. Her financial circumstances left her seeking lawyers that would either act on a no win – no fee basis, or on a pro-bono basis. Whilst the matter is clearly significant for the Applicant it is not of such a high profile issue as to quickly attract either no win – no fee firms or pro-bono assistance. It does appear clear, however, that she took far more steps to attempt to obtain assistance and file an application than one often sees in cases of this type.
These difficulties must also be seen against the background of English being the Applicant’s second language, although her English skills are clearly functional on a day to day basis and in the work environment. However, I accept that in the legal and court specific environment quite formal and often unusual forms of process are utilised. I accept that a person whose second language is English would be uncomfortable completing application forms themselves. It also appears that the Applicant was also given advice by clerks of the court registries that she could make her application out of time.
On the material before me I am satisfied that the applicant actively pursued a claim, not only bringing her fair work application within the 60 day time limit but also actively pursuing legal assistance in order to bring an application in the Federal Magistrates Court.
Prejudice
In this case the Respondent does not contend that it has suffered prejudice beyond the fact that it is required to defend an application 28 days out of time. As was raised by the Respondent in argument I note that the mere absence of prejudice to the Respondent is not of itself a sufficient basis to grant an extension of time as there will always be some degree of cost to the Respondent and the community generally if time limits set by Parliament as a reasonable balance between the importance of certainty and the applicants are not complied with, there is greater uncertainty for those employing employees which affects the labour market generally. There is also a significant interest in the community as a whole in having disputes brought to an end expeditiously and if there is to be litigation, that it be commenced quickly and dealt with expeditiously.
There is clearly prejudice to the Applicant if she is unable to bring her application. She is a person of limited means who will lose the opportunity to obtain compensation if she is able to establish the basis of her claim.
Merits of the Application
The Applicant says her employment was terminated close to the time at which she made a complaint with respect to work safety, in particular lifting printers weighing 23-25 kilos, people riding on forklifts, and abuse by the warehouse manager.
Importantly, in cases such as this, the Applicant has the benefit of s.361(1) of the Fair Work Act which states:
361(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The Respondent raises the argument that the relevant person in the company has given direct evidence that he was not motivated by the Applicant’s complaint about safety or injury report and therefore it is likely that the Respondent will be able to satisfy the onus cast by s.361. As a result the Respondent argues that the Applicant cannot establish that she has a good case.
This argument is not dissimilar to that raised in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 where the subjective intention of the defendant could have amounted to a complete defence to the claim. The High Court held that despite there being no direct evidence to contradict the subjective intention of the defendant there were a number of matters which would properly be the subject of cross examination, and that in such a case summary judgment was not appropriate. I note, at this point, that the test to be applied here is not whether or not summary judgment would be entered, but rather I must consider the merits of the case of the Applicant. The ultimate test is different to the test that had to be applied in Webster v Lampard. However, the reasoning process in Webster v Lampard provides some assistance in establishing that in a case where it is the respondent’s intention which is a key issue, there will often need to be an opportunity to cross examine the respondent before one can make any proper determination about the case.
In this case the surrounding circumstances appear to me to be sufficient to indicate that the Applicant does have an arguable case that would call for an opportunity to cross examine the Respondent’s witnesses in this regard.
On the material before me I am persuaded that the Applicant has an arguable case, which requires the testing of evidence to make the proper determination.
I also note that the period for which the extension is sought, 28 days, whilst double the length of the limitation period, remains significantly less than the extensions given in other cases, in particular in Abela v Telstra Corporation Ltd [2012] FMCA 17 (the circumstances of that case warranted an extension for 83 days).
Having regard to all of the circumstances of the case, as set out in various outlines, submissions and argument before me I am ultimately persuaded that an extension of time ought to be granted.
It appears to me to be appropriate in this particular application for the costs of the application to be reserved to the trial Federal Magistrate. I therefore make Orders accordingly.
As the parties have now filed considerable material addressing the facts and circumstances of the case it appears to me that it is appropriate for the matter to be referred to mediation with a Registrar at this stage, before any further legal expenses are incurred. I therefore make Orders for the matter to be referred to mediation, with liberty to apply.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 19 April 2013
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