Kearney v Epic Employment Service INC.

[2016] FCCA 2490

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEARNEY v EPIC EMPLOYMENT SERVICE INC. [2016] FCCA 2490

Catchwords:
INDUSTRIAL LAW – Application for extension of time within which to commence general protections court application – where parties agreed to arbitration before Fair Work Commission – where respondent subsequently withdrew consent – reasonable explanation for delay – arguable claim for relief – application granted.

Legislation:

Fair Work Act 2009 (Cth), ss.368, 370(a)(ii)

Bankruptcy Act1966 (Cth), s.29

Cases cited:

Hows & Richmastery Limited [2007] FMCA 1606

Radich v Bank of New Zealand (1993) 45 FCR 101

Applicant: SEAMUS PATRICK KEARNEY

Respondent: EPIC EMPLOYMENT SERVICE INC. T/A EPIC ASSIST

File Number: BRG 697 of 2016

Judgment of: Judge Jarrett

Hearing date: 26 September 2016

Date of Last Submission: 26 September 2016

Delivered at: Brisbane

Delivered on: 27 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Carter Newell Lawyers

ORDERS

1. Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) the time in which the applicant may commence a general protections court application be extended to 1 August, 2016.

2. By 4.00pm on 17 October, 2016 the applicant must file and serve upon the respondent points of claim setting out clearly and concisely all of his claims against the respondent;

3. The application be adjourned to 24 October, 2016 at 9:30am for directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 697 of 2016

SEAMUS PATRICK KEARNEY

Applicant

And

EPIC EMPLOYMENT SERVICE INC. T/A EPIC ASSIST

Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to commence a claim alleging dismissal in contravention of a general protection pursuant to the Fair Work Act 2009 (Cth). The application is opposed by the respondent.

2. Between 24 August, 2015 and 19 February, 2016 the applicant worked for the respondent as an Employment Consultant at Southport, Queensland.  There is no dispute that his employment was terminated on 19 February, 2016. 

3. The applicant instituted a claim with the Fair Work Commission in respect of his dismissal.  There was a conference, by telephone, facilitated between the applicant and the respondent by the Fair Work Commission on 29 April, 2016.  The conference was unable to settle the matter. 

4. Accordingly, on 9 June, 2016 a Deputy President of the Fair Work Commission issued a certificate pursuant to s.368 of the Fair Work Act certifying that the Commission was satisfied that all reasonable attempts to resolve the dispute between the applicant and the respondent had been or were likely to be unsuccessful. The certificate drew the applicant’s attention to the requirement to issue a general protections court application in the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order within 14 days of the issue of the certificate. It also said: “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 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.” 

5. Eight days after the issue of the certificate, on 17 June, 2016 the applicant contacted the respondent’s Human Resources Executive Manager, Ms Gemma Jones, via email seeking the respondent’s consent to arbitration before the Fair Work Commission. That consent was forthcoming. Ms Jones completed a relevant form of consent and on 22 June, 2016 (within the 14 day time period referred to in the s.368 certificate), the applicant also lodged a consent to arbitration with the Fair Work Commission. For all intents and purposes, the application was to proceed to arbitration.

6. On 15 July, 2016 the applicant was advised that the arbitration was set down for a directions hearing by telephone conference on 26 July, 2016. 

7. However, on 18 July, 2016 the applicant received a copy of correspondence from the respondent (authored by its lawyers) to the Fair Work Commission indicating that the respondent withdrew its consent to the arbitration. Thereafter followed some correspondence between the applicant and the Fair Work Commission and the respondent and the Fair Work Commission about whether a further certificate under s.368 of the Fair Work Act 2009 would be issued.

8. On 18 July, 2016 the parties received an email from an associate to the Vice President of the Fair Work Commission in which the following is said:

   “The Vice President acknowledges the below correspondence. 

   The consent has been withdrawn.  Under these circumstances the matter cannot proceed to a consent arbitration.

   As such, a certificate will be issued in due course.”

9. Lawyers for the respondent replied by email on 19 July, 2016 in the following terms:

   “Thank you for your email.

   We understood that this matter was being referred for the re-issuing of a further section 369 certificate of non-resolution, such that the applicant would be granted 14 days from the date of issue of that certificate to initiate Federal Court proceedings”.

10. On the next day, a further email was received from the associate to a Vice President of the Fair Work Commission in these terms:

    “Dear Parties

    The Vice President has received the below correspondence.

    As consent has been withdrawn it is assumed that there will be no objection to the late filing of this matter in the Federal Court.”

11. In a subsequent email delivered on 21 July, 2016, both the applicant and the respondent were advised that a new certificate would not be issued by the Fair Work Commission. 

12. On 26 July, 2016 the applicant and the respondent (by its lawyers) received confirmation from the Deputy President of the Fair Work Commission dealing with the arbitration, that the arbitration directions hearing had been cancelled. 

13. The applicant then commenced these proceedings on 1 August, 2016. 

14. The respondent opposes the application on three bases.  First, the respondent says there is no explanation for the applicant’s delay between receiving notice that the respondent had withdrawn its consent to the arbitration (on 18 July, 2016) and the commencement of these proceedings (1 August, 2016).  Second, the respondent says that the applicant does not have a reasonably arguable claim.  Third, the respondent points out that the applicant is an undischarged bankrupt in New Zealand and accordingly the proceedings would be futile because the fruits of any judgment in this application would vest in his trustee in bankruptcy.  For the reasons that follow, however, there is no merit in any of these points. 

15. The delay between the applicant receiving notification that the respondent was no longer consenting to arbitration and the commencement of these proceedings is 14 days. It is clear from the correspondence that I have extracted above that both the applicant and respondent expected the Fair Work Commission to issue a further s.368 certificate which would recommence the running of time for the purposes of the applicant commencing proceedings in this Court or the Federal Court. For reasons that are not easily understood, the Fair Work Commission did not do that but assumed that an application for an extension of time by the applicant would not be opposed. As these proceedings indicate, that assumption was misplaced.

16. Even though the respondent argues that the delay is some 14 days, it is less than that.  It did not become apparent until 21 July, 2016 that a new certificate would not be issued.  If there has been a delay, then it was 10 days.  In my view, whilst that might represent a delay of sorts, it is not a delay which is relevant for the purposes of this application.  The parties intended to proceed to consent arbitration but the respondent subsequently withdrew its consent and both parties envisaged that the time within which the applicant might commence these proceedings would recommence to run upon the issue of a further certificate by the Fair Work Commission.  That did not come to pass.  In those circumstances, no further explanation is required. 

17. The applicant’s proposed claim is for compensation and the imposition of a pecuniary penalty on the respondent for dismissing him in contravention of certain general protections set out in the Fair Work Act. The applicant alleges that he was dismissed and otherwise subject to adverse action because he exercised a workplace right to make complaints or enquiries with his employer in respect of his employment. The respondent argues that even assuming those allegations to be correct, it is irreconcilable with the applicant’s employment moving from probationary status to permanent status after all of his complaints had been made to his employer save with certain dealings with the respondent’s officers on 19 February, 2016, the day he was terminated.

18. The applicant has prepared his own proceedings.  They lack the precision of preparation by a competent lawyer skilled in this area of the law.  He proposes to deliver an amended pleading if permitted to do so.  Nonetheless, his claims are tolerably clear from the application and claim that he has filed already.

19. Without intending to be exhaustive, the applicant claims that adverse action was taken against him on 19 February, 2016.  The adverse action is not limited to his dismissal on 19 February, 2016.  He also alleges that the respondent:

    a)by its employee, Hayden Foote, took adverse action against him by injuring the applicant in his employment when he made false representations to the Human Resources Manager of the respondent about alleged conduct of the applicant on:

    i)12 February, 2016; and

    ii)19 February, 2016;

    b)by its employee, Jayne Harman, took adverse action against him by injuring the applicant in his employment when he made false representations to the Human Resources Manager of the respondent about alleged conduct of the applicant on:

    i)12 February, 2016; and

    ii)19 February, 2016; and

    c)injured the applicant in his employment by failing to investigate or make enquiries about matters the applicant raised on 19 February, 2016 in response to what he claims to be the false representations concerning his conduct on 12 and 19 February, 2016 made by Foote and Harman.

20. The respondent’s submissions (and the summary of the respondent’s position set out in its response filed on 14 September, 2016) misapprehend the applicant’s claim.  The respondent argues that insofar as the applicant contends that he was subject to adverse action because of his exercise of his workplace right in making complaints, that proposition is irreconcilable with the fact that he concedes that his appointment was confirmed at the conclusion of his probation period on 22 December, 2015 after all his complaints, save his dealings with the respondent on 19 February, 2016.  His case is not so confined.  He relies upon actions taken on 19 February, 2016 which he claims were motivated by complaints and enquires he made on 19 February, 2016.  Moreover, his claim that employees of the respondent (for which the respondent may be responsible) took adverse action against him for reasons associated with his earlier complaints.  Those allegations are not irreconcilable with the move to permanent employment after the complaints were made by the applicant.

21. There is no dispute that the applicant’s case is in need of better expression.  The applicant intends to, with the assistance of legal advice, more properly formulate his claims if he is given leave to commence them.  However, it is apparent enough from the material already filed by the applicant that his claim is not that the adverse action taken against him was taken because of the complaints and enquiries he made before his employment became permanent.  According to his claim, he also made complaints on 19 February, 2016.  Moreover, he complains about actions, other than the termination of his employment, by employees of the respondent (for which he says the respondent is responsible) which took place after he became a permanent employee and for reasons he alleges were connected with his complaints made before he became a permanent employee.  There is nothing in the points made by the respondent.  If the applicant makes out the factual allegations in his affidavit and his claim both filed on 1 August, 2016 he has an arguable case for relief.

22. Finally, the respondent suggests that the applicant is an undischarged bankrupt in New Zealand. That is not in dispute. The respondent argues that pursuant to s.29 of the Bankruptcy Act 1966 (Cth) the applicant’s bankruptcy in New Zealand is a matter in respect of which Australian courts are obliged, upon request being made, to exercise their powers to assist in all matters of bankruptcy, as if the extra territorial bankruptcy had arisen within this jurisdiction. The respondent submits that to the extent that the applicant may seek any monetary compensation from the respondent in respect of lost earnings or any other compensation that might be payable to him for economic loss, his New Zealand trustee in bankruptcy “has an interest in those claims”, which claims may be pursued in Australia.

23. The respondent’s solicitors were unable to point to any particular authority which might establish how s.29 of the Bankruptcy Act might impact upon the present case. There are a few propositions, however, which may assist. As Wilson FM pointed out in Hows v Richmastery Limited [2007] FMCA 1606, a sequestration order made in New Zealand is an order of the New Zealand court, just as a sequestration order made in Australia is an order of a court of this country. The extra territorial operation of such orders depends upon the rules of private international law applicable in the country in which the relevant order is sought to be enforced. I was not taken to any of the rules of private international law which assist the respondent in making out its argument that any property owned by the respondent in Australia and perhaps acquired by him after his bankruptcy commenced, might have vested in his trustee in bankruptcy in New Zealand. As Wilson FM points out in Hows, the making of a sequestration order in New Zealand does not, of itself, make the applicant bankrupt in Australia.  Nor does the making of a sequestration order in New Zealand vest all of the applicant’s property in the New Zealand trustee.  In Radich v Bank of New Zealand (1993) 45 FCR 101 the Full Federal Court accepted that a foreign sequestration order will not be recognised by an Australian court as vesting title in a foreign trustee to moveables in Australia acquired by the bankrupt after the commencement of the foreign bankruptcy if the debtor ceased to be domiciled in the foreign country before acquiring those moveables.

24. I am presently unpersuaded that the applicant’s status as an undischarged bankrupt is an answer to these proceedings against the respondent. 

25. In the circumstances it is appropriate to grant an extension of time in which to commence these proceedings and there will be an extension granted to 1 August, 2016.

26. The applicant seeks leave to file and serve an amended form 2 Claim.  I think that the applicant would be better off filing points of claim that set out clearly his claim in this matter.  He should file points of claim no later than 17 October, 2016.  The application will be listed for directions following that date.  

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 27 September, 2016.

Date: 27 September 2016