Jusrut v Link Business Services

Case [2024] FedCFamC2G 583

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 28
Division: 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

  1. 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).

  2. 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.

  3. 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…

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Jusrut v Link Business Services [2024] FedCFamC2G 583
Case
[2024] FedCFamC2G 583
Decision Date

CaseChat Overview and Summary

The applicant, Mr Jusrut, has applied for an extension of time to commence a general protections court proceeding following his dismissal from employment by Link Business Services. The application was heard and determined on the papers by the Court, with Mr Jusrut submitting an affidavit and annexing numerous documents in support of his application. Link Business Services, the respondent, filed a legal submission and annexed documents relevant to the application. The applicant seeks an extension of time to lodge his application in the Federal Circuit and Family Court of Australia, having been unable to file within the 14-day period prescribed by section 368 of the Fair Work Act 2009 (Cth). The legal issues the Court was required to decide included whether there was an acceptable explanation for the delay in filing the application, whether the applicant actively contested his dismissal, and whether the Court should exercise its discretion to grant an extension of time under section 370(a)(ii) of the FW Act.

The Court found that the applicant had provided an acceptable explanation for the delay, which included technical issues with the court’s electronic lodgement portal, periods of unavailability, registry staff delays and errors, and the applicant’s ill health. The Court was satisfied that the applicant had taken genuine steps to contest the termination of his employment, which weighed in favour of granting an extension of time. Additionally, the Court found that there was no material prejudice to the respondents as a result of the delay. While the Court could not assess the merits of the applicant’s case, it was satisfied that he had a reasonably arguable case and that he would be denied the right to pursue it if not granted an extension of time.

The Court exercised its discretion to extend the time for the applicant to file his general protections court proceeding, noting that equity would be guided by what justice demands. The Court considered the Brodie-Hanns framework in its decision-making process, which included assessing the explanation for the delay, the steps taken by the applicant to contest his dismissal, and the absence of prejudice to the respondents. The Court concluded that the applicant’s explanation for the delay was acceptable and that the grant of an extension of time was equitable in the circumstances.

In conclusion, the Court granted the applicant’s application for an extension of time to file his general protections court proceeding. The Court found that the applicant had provided an acceptable explanation for the delay, had actively contested his dismissal, and would be prejudiced if not granted an extension of time. The Court exercised its discretion under section 370(a)(ii) of the FW Act to extend the time for the applicant to file his application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.