Jusrut v Link Business Services
[2024] FedCFamC2G 583
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jusrut v Link Business Services [2024] FedCFamC2G 583
File number(s): MLG 904 of 2024 Judgment of: JUDGE FORBES Date of judgment: 1 July 2024 Catchwords: FAIR WORK – application for extension of time to commence general protections court proceeding – consideration of factors relevant to exercise of Courts discretion – whether there is an acceptable explanation for the delay – whether applicant actively contested dismissal – extension granted Legislation: Fair Work Act 2009 (Cth) s 340, 348, 351, 352, 361, 368, 370 Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Inc [2013] FCA 1018
Grech v Truck Tech [2023] FedCFamC2G 184
Sabapathy v Jetstar Airways [2021] FCAFC 25
Transport Workers Union v School Bus Contractors [2011] FMCA 28Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: On the papers Place: Melbourne Applicant: In person Solicitor for the Respondent: Mr Young, Holman Webb Lawyers ORDERS
MLG 904 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMRISH JUSRUT
Applicant
AND: LINK BUSINESS SERVICES PTY LIMITED
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
28 JUNE 2024
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) the time for the applicant to make a general protections court application shall be extended to 15 April 2024.
2.The matter will otherwise be listed for a directions hearing before Judge Forbes on 2 July 2024 at 9.30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
The applicant, Mr Amrish Jusrut is a former employee of Link Business Services Pty Limited (Link). He was employed by Link as a Team Leader, Quality Assurance until the termination of his employment on 12 January 2024. Mr Jusrut alleges that his dismissal by Link contravened the general protections provisions set out in Part 3-1 of the Fair Work Act 2009 (FW Act).
Mr Jusrut made an application to the Fair Work Commission (FWC) to deal with his dispute. Conciliation conferences between the parties failed to reach a resolution. On 28 March 2024 Commissioner Perica issued a certificate pursuant to section 368 of the FW Act after being satisfied that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful.
The issuing of a certificate is a prerequisite to the commencement of proceedings in this Court seeking relief for contraventions of Part 3-1 of the FW Act. Pursuant to section 370 of the FW Act a person must not make a general protections court application in relation to the dispute unless the Commission has issued a certificate under section 368(3)(a) in relation to the dispute and 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.
On 12 April 2024, Mr Jusrut filed proceedings against Link in this Court alleging contraventions of Part 3-1 of the FW Act. Link contends, and it appears to be common ground, that the 14-day time limit for the commencement of proceedings expired a day earlier, on 11 April 2024.
Mr Jusrut invites the Court to exercise its discretion to extend the period of time in which an application may be made pursuant to section 370(a)(ii) of the FW Act. Link opposes the application.
The application for an extension of time is to be determined on the papers. In support of his application Mr Jusrut filed an affidavit sworn on 27 May 2024 annexing 45 documents running to more than 250 pages. Link filed a 5-page legal submission and annexed a number of documents including correspondence between its solicitors and the Federal Circuit and Family Court of Australia registry.
RELEVANT BACKGROUND
Mr Jusrut commenced employment with Link on 14 August 2019.
In his application to the Fair Work Commission, Mr Jusrut alleges that he suffered a workplace injury on 10 August 2023 which required emergency treatment at the Royal Melbourne Hospital and that he was thereafter formally diagnosed with an anxiety disorder. He says that liability for the workplace injury was accepted by Link’s workers compensation insurer on 20 September 2023. Mr Jusrut did not return to work after suffering the injury and he is in receipt of workers compensation payments.
Mr Jusrut says that Link subsequently made him aware of allegations that he had bullied team members in early August 2023. He alleges that he was unable to respond to these allegations because he had become unfit for work from the date of his workplace injury.
On 15 December 2023 Link put Mr Jusrut on notice regarding further allegations of bullying which had been unearthed during the course of an investigation. He was given a show cause notice by the employer but says that he was unable to respond due to his incapacity. Mr Jusrut claims that he and his union representatives were denied a request for an extension of time to respond to the allegations.
On 12 January 2024, Mr Jusrut’s employment was summarily terminated on the grounds of serious misconduct.
In his application to the Fair Work Commission, Mr Jusrut asserts that he was subjected to at least 27 instances of adverse action in contravention of section 340 because he possessed or exercised workplace rights. He says that he was subjected to adverse action after he informed Link of his intention to exercise his workplace rights.
Moreover, Mr Jusrut also alleges that Link engaged in coercion in contravention of section 348 by threatening to take action against him to prevent him from engaging in lawful actions through his association with the Finance Sector Union.
Mr Jusrut also alleges that he was subjected to discrimination on the ground of his mental disability in breach of section 351 and that he was terminated by reason of his illness or injury in contravention of section 352 of the Act. All of the allegations prima facie engage the general protections provisions in Part 3-1 of the FW Act.
As mentioned earlier, Mr Jusrut’s application to the Fair Work Commission was unable to be resolved, resulting in Commissioner Perica issuing a certificate pursuant to section 368 on 28 March 2024. The certificate included a notation informing Mr Jusrut that he had 14 days to make a general protections court application.
Application to the Court
In an affidavit dated 27 May 2024 in support of his application for an extension of time, the applicant contends that he encountered a number of difficulties in lodging his application during the 14 days following 28 March 2024. He says these delays were occasioned by a combination of factors including scheduled maintenance works on the court’s electronic lodgement portal, periods of portal unavailability, registry staff delays and errors as well as the applicant’s ill health.
Mr Jusrut deposes that he made his first attempt to lodge his application through the Court’s eLodgement portal on Friday, 29 March 2024. He says this attempt was unsuccessful as the portal was undergoing maintenance. Mr Jusrut also deposes that he was unable to contact the Registry to explore alternative lodgement avenues on that day, which was Good Friday or over the subsequent 3 days of Easter (30, 31 March and Monday, 1 April 2024).
Mr Jusrut claims that he then fell ill, and home tested himself for COVID-19 on 2 and 3 April 2024, which returned positive results on both occasions. Photos of two positive rapid antigen test results were annexed to his affidavit, although they are undated. Notwithstanding, on 5 April 2024, Mr Jusrut underwent a PCR test which confirmed that he was positive for COVID-19.
The applicant says that the Court’s eLodgement portal was not available for any lodgement due to maintenance on Friday 5 April and over the weekend of 6 and 7 April 2024. It is not contested that the physical registry of the Court is closed on weekends.
Mr Jusrut says that he next contacted the registry on Tuesday 9 April 2024 via its online LiveChat function to ascertain when the portal would return to normal operations. He says he was advised by registry staff to attempt further contact on another day due to the high number of users and the portal’s slow response times.
In his supporting affidavit, Mr Jusrut deposes to a telephone call with the registry on Wednesday, 10 April 2024. He says that he was advised by registry staff that the portal was not compatible with all internet browsers and that he should keep trying.
The applicant deposes that he “proceeded to lodge all paperwork via eLodgement prior to 4:30 PM on 11 April 2024”. He says that when he did so, the lodgement did not trigger the associated payment request and the lodgement was not able to progress to the final stage despite multiple attempts by him to reattach files. Mr Jusrut’s affidavit annexed a number of screenshots of the eLodgement screen including one which appears to display a lodgement receipt number on 11 April 2024[1].
[1] Affidavit of Amrish Jusrut filed 28 May 2024 (Jusrut Affidavit), Annexures 10, 11 and 12
The applicant contends that although his lodgement of documents was completed prior to 4.30pm on 11 April 2024, there was a system delay and the lodgement was not recorded until 5.35pm. At that time a lodgement ID was generated and the system displayed a message: “Document(s) have been successfully lodged. Please make note of the Lodgement ID.”[2] He contends that the lodgement of his application therefore fell within the 14 day period.
[2] Jusrut Affidavit, Annexure 13
Mr Jusrut deposes that at 11.30am on Friday, 12 April 2024, he received an email from the Court registry rejecting his lodgement on the basis that the filing fee had not been paid and because he had not used the appropriate form when lodging his application. Shortly thereafter, the applicant telephoned the registry and sent messages through the LiveChat functionality seeking to explain his numerous attempts to lodge prior to the deadline. He says that it was only during those interactions with registry staff that he was informed that there was an option for manual filing.
The applicant gives evidence of a number of other interactions with the registry and its staff over the course of the day on Friday, 12 April 2024. During that period Mr Jusrut was sent an electronic invoice, he made full payment of the lodgement fee, and provided evidence of the payment to the registry. He also sent an email to the registry articulating the portal issues he had experienced and provided further background information explaining the delay. In his correspondence to the registry Mr Jusrut claimed exceptional circumstances including that he was a person with a disability and a recent victim of a sexual assault by multiple parties. He offered to provide a statutory declaration to support these explanations.
Mr Jusrut says that there was yet further correspondence with the registry on the following Monday, 15 April 2024. That correspondence was initiated by the registry which asked the applicant once again to send all the documents he wished to file and asked him to briefly articulate the explanation for the delay. Further email correspondence between Mr Jusrut and the registry centred around questions about exactly what documents the applicant had or had not filed. Mr Jusrut maintained that he had sent all relevant documents via email in the previous week, attached evidence of having done so and once again attached all files and sent them to the registry.
Mr Jusrut deposes that a manual filing was completed by a registry officer on Tuesday 16 April 2024 and that he received an email from the registry at 10.24am to confirm this.
Relevant legislation and principles concerning extension of time
Section 370(a)(ii) of the FW Act specifies that a general protections court application must be made within 14 days after the day the FWC Certificate has been issued “or within such period as the court allows on an application made during or after those 14 days”. Plainly, the language of s 370(a)(ii) vests in the Court a broad general discretion to grant an extension of time outside the 14 day time period.
Section 370 also contains a note as follows:
Note: 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.
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 was a case which concerned an application for the grant of an extension of time under s 170EA of the Industrial Relations Act 1988 (Cth). Marshall J articulated the following principles as being relevant to the exercise of the Court’s discretion to extend time beyond the prescribed period:
(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.
In Transport Workers Union v School Bus Contractors [2011] FMCA 28, Lucev FM (as his Honour then was) held that the Commonwealth Parliament did not intend for the Brodie-Hanns principles to be binding or exhaustive and that the note in s 370(a)(ii) ought not to be considered as being part of the statute. However, his Honour observed that the Brodie-Hanns principles have been regularly applied by this Court and do constitute a relevant guide to the criteria to be applied.
Similarly, in Clarke v Service to Youth Council Inc [2013] FCA 1018, White J held that it is sufficient to treat the note as a reference to the kinds of considerations which may be relevant.
Consistent with authority and the well-established practice of this Court and the Federal Court, it is appropriate to consider the current application within the Brodie-Hanns framework but noting that the Court’s discretion is broad and not constrained by only those factors[3].
CONSIDERATION OF THE RELEVANT FACTORS
[3] Grech v Truck Tech [2023] FedCFamC2G 184 at [22]-[24]
Explanation for the delay
I do not need to consider whether “special circumstances” exist in order to exercise the Court’s discretion to extend time. Rather the Court should focus on whether there is an acceptable explanation for the delay “which makes it equitable to extend”. Equity will be guided by what justice demands.
Mr Jusrut has ventured an explanation for his delay in initiating proceedings in the Court. As detailed above, the applicant submits that the delay in filing his application occurred through a combination of limited access to the electronic lodgement platform, inconsistent support from the registry, lack of information about the reasons for the malfunction and the withholding of advice about the option of a manual lodgement until after the electronic lodgement had been rejected. Mr Jusrut says he was confused by conflicting instructions, that his documents were lost and his application was delayed by registry staff.
Distilled, the essence of the applicant’s submission is that he repeatedly tried to file an application, was frustrated by technical difficulties for which he was not solely responsible, fell ill during the critical 14 day period and if he did miss the cut-off date (which he does not concede), he only did so by matter of hours. The applicant also submits that the Court should take into account his ongoing disability occasioned by a workplace injury and that he had been a victim of sexual assault.
The respondents on the other hand submit that the court should not accept any of the reasons advanced by the applicant as constituting a reasonable explanation for the delay. In its written submission, Link submits that the following evidence casts doubt over the plausibility of Mr Jusrut’s explanation:
(a)photographs of the rapid antigen tests annexed to the applicant’s affidavit are undated;
(b)the applicant has not given any evidence about how the COVID-19 virus impacted his well-being or any explanation as to why it caused him to be unable to comply with the statutory deadline;
(c)the Court does not have any expert medical evidence before it regarding the impact of the medical condition or his disabilities;
(d)the applicant has been afforded, but has not taken up, the opportunity to give evidence about matters he raised with the registry as an explanation for delay, in particular his claim to have been a victim of a sexual assault. Moreover, the applicant has not provided the Court with any probative police or medical evidence which would enable it to be satisfied that the alleged assault affected his ability to comply with the statutory deadline;
(e)the applicant’s assertion that “mental disability” affected his ability to submit the application is unexplained and unsubstantiated. Link submits that there is simply insufficient detail and no supporting lay or medical evidence demonstrating that a disability prevented him from lodging within the statutory period;
(f)the applicant has made serious yet unsubstantiated allegations regarding the conduct of the Court’s registry staff. The Respondent contends that those allegations should be given no weight because they are consistent with a pattern of behaviour where the applicant takes aim at those he perceives to have acted contrary to his personal interests; and
(g)the applicant’s submissions and evidence do not establish that legitimate technical issues prevented him from filing documents across the entirety of the filing period. The respondent submits that there were abundant opportunities for the applicant to commence proceedings in time. The respondent concedes that the portal was intermittently not operational, but submits that the applicant contributed to his own failure by entering the incorrect URL or by not engaging with the portal outside its scheduled outages.
In relation to the alleged technical difficulties, I have been assisted by evidence from the National Judicial Registrar of the Court relating to the functioning of the Court registry at the relevant time.
In a letter to the Federal Circuit and Family Court of Australia dated 31 May 2024, the respondent’s solicitors raised a number of questions with the Court registrar in an effort to verify the reasons for delay posited by Mr Jusrut. The respondent stated that it intended to rely upon any information provided by the registry. In his response, the Court’s National Judicial Registrar quite properly declined to express any opinion as to matters in issue, however the Registrar stated the following material facts:
(a)that pursuant to the provisions of the Federal Circuit and Family Court of Australia (Division 2) (Gen Federal Law) Rules 2021 (Cth) (the Rules) which deal with the filing of documents and the commencement of proceedings (in particular, rr 2.05 and 30.04) together with the provisions of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth), in order to commence a proceeding an applicant must file:
(i)an application in accordance with the approved form (styled “Application-Fair Work Division”) (Application);
(ii)a claim in accordance with the approved form (styled “Form 2-Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”) (Claim); and
(iii)a certificate issued by the Fair Work Commission (Certificate).
(b)the applicant first submitted the above combination of documents by email on 12 April 2024;
(c)the applicant had previously submitted the Claim form and the Certificate, but not the Application;
(d)the registry did not advise the applicant of the need to submit the Application until the email sent to him on 12 April 2024 at 11:30 AM; and
(e)outages for the eLodgment system were experienced:
(i)during business hours on 28 March and 4 April 2024; and
(ii)outside business hours on 4, 5, 6, 7, 10 and 11 April 2024.
Action to contest the termination
It is not disputed by Link that Mr Jusrut took steps to contest the termination of his employment. This is not a case where an applicant has been idle and seeks to agitate a claim only after the time limit for commencement has passed.
As mentioned in the background to this judgment, at the time the applicant was terminated he was absent from work undergoing treatment for a work-related injury. It is not contested that he sought the advice of the Finance Sector Union and that he sought to challenge the fairness and validity of his dismissal and the investigation into allegations of bullying which preceded it.
The applicant commenced proceedings in the Fair Work Commission on 2 February 2024. A comprehensive application was filed with the Commission identifying the legal and factual basis of his claims and the relief sought. Mr Jusrut actively contested his dismissal and asserted contravening conduct in conferences at the Fair Work Commission on 14 and 18 March 2024.
In considering this factor, I also take into account that the applicant made his first steps toward filing an application in the Court the day immediately after Commissioner Perica issued the s 368 certificate. Whether successful or not in filing his application before the 14-day cut off, it is undeniable that Mr Jusrut was at all times during that period endeavouring to pursue his claim in the Court.
The Respondent says that this factor should be regarded as neutral, neither weighing in favour of nor against the exercise of the court’s discretion. I disagree. The applicant was not idle or ambivalent about his rights and, on the evidence before me, he appears to have been very active in seeking to press an application in this Court.
Prejudice to the Respondent
The applicant asserts, and I accept, that the claims made in the proposed court proceedings largely correspond with the claims made by him in the Fair Work Commission application. He submits that the respondent has at all times been represented by the same solicitor and that his former employer cannot be surprised by either the fact of his application or the causes of action and remedies sought.
The Respondent concedes that the late lodgement of the application has not caused it any prejudice, save that it was entitled to consider all employment matters concerning the applicant to have been concluded when it was not served with the originating process by 12 April 2024.
Furthermore, the respondent submits that the absence of any prejudice should not be the basis to warrant an extension of time. That is a correct statement of principle. In the absence of other factors weighing in favour of the applicants the mere absence of prejudice to a Respondent would not ordinarily move a Court to exercise discretion.
Merits of the case
In support of his application for an extension of time, Mr Jusrut submits that the Court proceedings “exposes extremely concerning, immoral and illegal employer practices”. He alleges among other things that “employer misconduct” exposes the wilful abuse of workplace investigation processes, openly discriminating against an employee with a disability in recruitment as well as enterprise bargaining, fraudulent instructions to a WorkCover agent, breaches of privacy, information security and human rights. The applicant goes on to allege gross misconduct by the respondent which has led to a range of adverse, illegal actions taken against him as an applicant, including dismissal, injury and other damage in his personal and professional life.
If Mr Jusrut’s application to the court had been cast is such broad emotive language, it would not pass muster and would be liable to being struck out. However, the filed application itself is more measured and at least makes an effort to plead a case which contains the essential elements of a general protections claim. It is fair to say that Part G of Mr Jusrut’s Form 2 contains a somewhat confusing narrative which appears to conflate unfair dismissal considerations and matters which are relevant to contraventions of the general protections provisions of the FW Act.
The respondent submits that the substantive application lacks any merit. The respondent submits that the applicant has made no attempt to explain any causal or temporal connection between his dismissal and the general protections in Part 3-1 of the FW Act. It is submitted that the vast array of alleged events and unsubstantiated grievances are not “tangentially relevant to proceedings of this nature or arose after [the applicant’s] employment concluded”.
In my view the application contains the essential ingredients of a general protections claim, namely adverse action (dismissal) and that the Respondent was actuated by prohibited reasons (exercise of workplace rights and discrimination). The applicant also alleges coercion. It alleges contraventions of the FW Act and seeks relief in the form of compensation, civil penalties and other relief. It is by no means a perfect document, but it is appropriate to extend some leniency to the applicant as a self-represented litigant. It is not atypical of the general protections claims which often fall to be determined by this Court.
I accept as a matter of fairness a respondent is entitled to sufficient precision in a claim for it to know what case it must meet. That is particularly so in general protections proceedings where the rules of pleading should generally be followed[4]. Imprecision in the claim may leave it open to collateral attack by the respondent and it may be that extensive case management orders will be necessary to ensure that it proceeds in a manner which does not prejudice the respondent. However, imprecision is not of itself a reason to deny an extension of time that is otherwise just.
[4] Sabapathy v Jetstar Airways [2021] FCAFC 25 at [42]
Relevantly, the respondent submits that:
(a)it “will adduce evidence which contradicts the limited aspects of the application which are relevant to the proceedings […]”;
(b)it “possesses the evidence required to discharge the reverse onus of proof found in section 361(1) of the FW Act”;
(c)it terminated the applicant’s employment due to serious and wilful misconduct, after the respondent discovered recordings of the applicant engaging in inappropriate, discriminatory and unprofessional behaviour; and
(d)the applicant was dismissed for a lawful reason.
This submission suggests that the respondent has a fundamental understanding of Mr Jusrut’s application and believes that it is in a position to adduce the necessary evidence to discharge the reverse onus of proof. Link’s submission seems to concede that at least “limited aspects of [the application] are relevant to the proceedings”.
Primary regard should be directed to the circumstances which have caused the claim to be lodged out of time, rather than the merits of the substantive application - unless the substantive claim is plainly unmeritorious or vexatious. In Clarke v Service to Youth Council Incorporated [2013] FCA 1018 White J held at [28] that:
“Given the application for the extension of time is being dealt with as a preliminary issue, it is not practical for the Court to form a view as to the merits of these competing positions. Accordingly, I consider that this is not a case in which the Court’s assessment of the merits of the applicant’s claim can be a significant consideration. I can do no more than accept that the applicant may have an arguable claim and that, if the extension of time is not granted, she will not be able to pursue that claim”.
In a general protections proceeding the applicant enjoys the benefit of the reverse onus which falls on the respondent by operation of s 361 of the FW Act to prove that alleged adverse action was not taken for a prohibited reason or reasons which include prohibited reasons. In my view this weighs in favour of the grant of an extension.
In circumstances where the parties have not yet filed evidence, I am unable to form a conclusive view about the merits of the case. The claim has not yet been contested or challenged. As in Clarke, I can do no more than accept that the applicant may have an arguable claim which will be denied to him if an extension of time is not granted.
Consideration of fairness between the applicant and other persons in a like position
The respondent submits that this factor weighs in its favour, because permitting the late application to proceed would not facilitate the overarching purpose of civil litigation and would cause unfairness to litigants who have complied with the statutory deadline. It is submitted that allowing the applicant to proceed out of time will divert court resources away from those who have complied.
In my view this is a neutral factor. The FW Act confers a discretion on this court to extend time if it is equitable to do so. If there was evidence that the applicant had been deleterious in the exercise of his rights or had acted contrary to the overarching purpose of civil litigation, that may weigh against him. However, for reasons I have explained, that is not the case here.
CONCLUSION ON EXTENSION OF TIME
The Applicant bears the onus of satisfying the Court that there are grounds which warrant the Court exercise of its discretion under s 370(a)(ii) to extend time for the filing of the application.
I have carefully weighed the parties’ respective submissions and I have had regard to the various documents annexed to those submissions. I accept that the applicant’s affidavit is untested and that some documents annexed to it are undated or ambiguous. In my view, the best and most persuasive evidence is that from the National Registrar regarding the availability and performance of the eLodgement portal during the relevant period.
Weighing and balancing the considerations referred to above, I am satisfied that this is an appropriate occasion for that discretion to be exercised in favour of the applicant.
Overall, the evidence before the Court presents a narrative of an aggrieved self-represented former employee who actively contests the lawfulness of his dismissal from employment. He has taken genuine steps to press his claims for relief before the Fair Work Commission and now seeks to do so before the Court.
I am satisfied on the material before me that the applicant’s intention to commence proceedings in this Court was evident almost immediately after the Fair Work Commission issued a certificate under section 368. I am satisfied that the applicant thereafter made genuine albeit unsuccessful efforts to file initiating proceedings in the Court. The Easter break fell during the relevant 14-day period, the applicant did contract COVID-19 and the Court’s eLodgement portal was not always available or underwent scheduled maintenance.
On the worst view of the evidence (at least from the applicant’s perspective), the applicant was successful in filing the requisite combination of documents by email on 12 April 2024, just one day out of time. The applicant maintains that the process had been completed prior to that time, but having regard to the overall picture I do not consider it necessary to determine that contest.
In summary:
(a)I am satisfied that, on balance, Mr Jusrut has provided an acceptable explanation for the short delay in filing his application;
(b)Mr Jusrut has taken steps to contest the termination of his employment and that weighs in favour of the grant of an extension of time;
(c)there is no material prejudice to the respondents as a result of the delay; and
(d)although I am unable to assess whether Mr Jusrut’s case is “strong” or “weak”, I am satisfied that he has a reasonably arguable case and that he would be denied the right to pursue it if not granted an extension of time.
The reasons set out above, I will make an order that the time for the applicant to make a general protections court application shall be extended to 15 April 2024.
The matter will otherwise be listed for a directions hearing before me on 2 July 2024 at 9.30am at which time I will hear the parties in relation to any case management orders they may seek.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 28 June 2024
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