Kelly v Coastal Hire and Sales Pty Ltd
[2025] FedCFamC2G 454
•28 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kelly v Coastal Hire and Sales Pty Ltd [2025] FedCFamC2G 454
File number(s): SYG 3037 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 28 March 2025 Catchwords: INDUSTRIAL LAW - Application pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether applicant has given adequate explanation for delay – whether applicant has meritorious claim if extension granted –– whether otherwise appropriate to grant extension – extension refused – proceeding dismissed. Legislation: Fair Work Act 2009 (Cth) ss 340(1), 341(1)(c)(ii), 365, 368, 370(a)(ii)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.05(4)
Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Division: Fair Work Number of paragraphs: 20 Date of hearing: 13 March 2025 Place: Sydney Solicitor for the Applicant: Mr P Lewis of Total Legal, by video Counsel for the Respondent: Mr J Braithewaite Solicitor for the Respondent: MST Lawyers ORDERS
SYG 3037 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BABETTE KELLY
Applicant
AND: COASTAL HIRE AND SALES PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 20 February 2025 for an order extending the period provided for by s 370(a)(ii) of the Fair Work Act 2009 (Cth) is dismissed.
2.The proceeding is dismissed.
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
INTRODUCTION
The applicant, Ms Kelly, applies for an order under s 370(a)(ii) of the Fair Work Act 2009 (Cth) (FW Act) permitting her to make a “general protections court application” (GPC application) to this Court on 22 November 2024, being 31 days after the date by which Ms Kelly was required to have made that application.
The expression “general protections court application” is defined in s 368(4) of the FW Act to mean an application to a court under Division 2 of Part 4-1 of the FW Act for orders in relation to a contravention of Part 3-1 of the FW Act. An employee cannot make a GPC application unless the employee first applies to the Fair Work Commission (FWC) under s 365 of the FW Act to deal with the dispute, and the FWC issues a certificate under s 368(3)(a) of the FW Act certifying it is satisfied that all reasonable attempts to resolve the dispute, other than by arbitration, have been, or are likely to be, unsuccessful. Additionally, under s 370(a)(ii) of the FW Act, an employee cannot make a GPC application in relation to employment unless it is made within 14 days after the FWC issues a certificate under s 368(3)(a), or within such period as the Court allows on an application made during or after those 14 days.
On 12 June 2024 Ms Kelly applied to the FWC under s 365 of the FW Act for the FWC to deal with a dispute that arose out of the respondent (CHSL), on 27 May 2024, terminating her employment. The FWC issued a certificate (Certificate) under s 368(3)(a) of the FW Act on 8 October 2024. That meant that Ms Kelly was required to make a GPC application to this Court in relation to her dismissal 14 days after the date on which the FWC issued the Certificate, namely, by 22 October 2024.
PRINCIPLES
The principles I should apply in determining whether to extend the period to 22 November 2024 by which time Ms Kelly may make a GPC application are those Marshall J stated in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s 370(a)(ii) of the Act. His Honour said:[1]
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.”
[1] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, at pages 299-300
EXPLANATION FOR DELAY
The matters on which Ms Kelly relies to explain her delay are contained in the affidavit made by Mr Lewis, his solicitor. Mr Lewis deposes he understood Ms Kelly was required to make a GPC application by 22 October 2024; and he says that at 6.00 pm on 22 October 2024 he utilised the Commcourts portal to lodge the application. It should be noted that by the time Mr Lewis lodged Ms Kelly’s GPC application with the Commcourts portal, Ms Kelly could not have made that application by 22 October 2024 because, even if the application Mr Lewis lodged had been accepted for filing, it would have been accepted for filing on 23 October 2024, one day after the 14 day period provided by s 370(a)(ii).[2]
[2] See r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) which provides: “[A] document sent by fax or electronic communication, if accepted, is taken to have been filed: (a) if the whole document is received by 4.30 pm on a day the Registry is open for business — on that day; or in any other case — on the next day the Registry is open for business.”
At 12.19 pm on 23 October 2024 a client service officer from this Court’s Registry sent an email to Mr Lewis in which she noted “that the form 2 must be filed alongside an application – fair work division”, and that Mr Lewis may find a copy of the form of application on the Court’s website and, in any event, the officer attached to the email a pdf copy of the form of application. Mr Lewis, who appeared for Ms Kelly, informed me that the difficulty he encountered was caused by him including the application and Form 2 in one pdf document. Mr Lewis deposes that it took him “some time to research and understand what the problem was that had caused [the] application to be rejected by the portal”, and that lodgement “was finally, successfully made on 21 November 2024”.
Mr Lewis’s affidavit provides no explanation for the delay in having lodged Ms Kelly’s application at 6.00 pm on 22 October 2024, being a time by which Ms Kelly could not have made her GPC application within the time provided for by s 370(a)(ii) of the FW Act; and Mr Lewis’ affidavit provides no information on the basis of which any finding can be made about why he took a further month to lodge Ms Kelly’s GPC application. The absence of an explanation or adequate explanation weighs against my exercising the power under s 370(a)(ii) in favour of extending time.
APPARENT MERITS OF APPLICATION
The only material that is before me which identifies the claim Ms Kelly wishes to make, if I were to make an order extending time, is what she alleges in Part G of her Form 2:
1.On or about 13 May 2024 I initiated a discussion with the CEO of the Employer, Mr Christopher Hoolahan in relation to the working conditions for the employees of the Tamworth branch, of which I was a manager.
2.Included within this discussion was a discussion as to my unpaid overtime hours and, annual leave and other items relating to my position.
3.Mr Hoolahan, at the time, made no comments as to the points I raised.
4.About two weeks after my last such discussions with Mr Hoolahan on the above issues I was terminated, effective immediately.
5.I believe my termination was solely based upon those discussions.
In Part H of the Form 2, which instructs the person completing it to identify the remedy Ms Kelly seeks, a tick appears in a box next to “Compensation” which instructs the person completing the Form 2 to “give details on an attached sheet of how much compensation the employee is claiming and how the amount has been calculated (eg loss of income)”. A sheet containing the following information is attached to the Form 2:
Details of Compensation Sought by the Applicant
Babette KELLY
Unpaid Overtime / hours 28,000.00
‘Unfair Dismissal’ provision (26 weeks) 39,000
Superannuation 3,750
TOTAL $70,750.00
Ms Kelly’s claim, as stated in the Form 2, is bereft of particulars. In particular, the Form 2 does not identify the effect of the discussions Ms Kelly alleges she had with Mr Hoolahan. It is therefore not possible to determine whether the discussion Ms Kelly alleges she had with Mr Hoolahan was reasonably capable of being characterised as the making of a complaint or enquiry in relation to Ms Kelly’s employment.
At the first court date on 4 February 2025 I directed Ms Kelly to file and serve an application for an extension of time by 18 February 2025, together with any affidavit on which she intended to rely. I also ordered that by 5 February 2025 Ms Kelly write to CHSL to specify the “workplace right” on which she relies. Mr Lewis provided the following letter:
1.The Applicant has workplace rights as she is an employee of the Respondent, who is the employer.
2.The Applicant has a workplace right to discuss her pay, past pay and conditions with the employer.
3.The Applicant exercised this right, particularly in relation to unpaid overtime hours worked.
4.Very shortly after exercising her workplace right in this way, the Applicant was issued an immediate notice of termination from her employment.
5.This termination amounted to an adverse action taken, in our submission, against the Applicant by the Respondent due to her exercising her workplace right.
CHSL submits that Ms Kelly’s claims have insufficient merit to warrant my making an order under s 370(a)(ii) extending time; and, moreover, Ms Kelly’s case is positively weak. In particular, CHSL submits:
(a)Ms Kelly has filed no evidence or submissions to support her position on the merits of her case.
(b)There are fundamental problems with Ms Kelly’s formulation of her case.
(i)The words “complaint or inquiry”, being an essential element of the workplace right defined in s 341(1)(c)(ii) of the FW Act, do not cover any and all discussions.
(ii)Even if the discussions Ms Kelly alleges she had with Mr Hoolahan constituted a “complaint or inquiry”, it was not a complaint or enquiry to which s 341(1)(c)(ii) applies, because Ms Kelly’s employment contract expressly provides she has no right or entitlement to receive overtime pay.
(iii)Even if Ms Kelly could establish CHSL contravened s 340(1) of the FW Act she would not be entitled to the compensation she claims because these claims are predicated on a breach of contract, or an “unfair dismissal”, but Ms Kelly does not claim breach of contract or unfair dismissal (the last mentioned matter being one in relation to which this Court does not have jurisdiction).
(c)Even if Ms Kelly could establish she exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act, the available evidence suggests this was not a factor in the reasons for CHSL’s dismissing Ms Kelly. CHSL relies on the reasons CHSL states in the letter dated 27 May 2024 by which it terminated Ms Kelly’s employment, and also to correspondence commencing on 16 November 2022 which, CHSL submits, constitutes contemporaneous evidence consistent with the reasons for terminating Ms Kelly’s employment CHSL stated in its letter dated 27 May 2024.
Mr Lewis, on the other hand, accepts Ms Kelly’s application has not particularised her claim, but says these are matters that will be attended to by Ms Kelly filing material if an order extending time is made pursuant to s 370(a)(iii) of the FW Act.
Ms Kelly’s claim, as framed in her Form 2, discloses no merit. Even on a generous reading of the claim, it is impossible to infer from the use of the word “discussion” that what Ms Kelly alleges she said to Mr Hoolahan could arguably consist of a “complaint” or “inquiry” within the meaning of s 341(1)(c)(ii) of the FW Act. The Full Federal Court recently explained the notion of “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act as follows:[3]
In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.
[3] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59], [60]
The ordinary meaning of “inquiry” is the act of seeking information about or concerning something.[4]
[4] Oxford English Dictionary
It may be that, had Ms Kelly filed her Form 2 within the 14 day period provided for by s 370(a)(ii) of the FW Act, she would have been able to provide, in the course of the proceeding, either particulars or evidence which could have shown she had discussions with Mr Hoolahan, and that the substance of the discussions could arguably support a claim that she made a complaint or inquiry in relation to her employment. But the time for Ms Kelly to have provided such information was when she applied for an order under s 370(a)(ii) of the FW Act. Ms Kelly was given an opportunity to file an affidavit and written submissions in support of her application for an extension of time, but she did not file any affidavit that related to the merits of her claims, and she filed no written submissions.
It is the case, as counsel for CHSL submitted, that there is contemporaneous communications between Mr Hoolahan and Ms Kelly which, considered alone, are reasonably capable of increasing CHSL’s prospects that it will successfully discharge the burden of proof which would lie on it that it terminated Ms Kelly’s employment for the reasons stated in its termination letter dated 27 May 2024. But it would not be open to me to find that Ms Kelly would have no reasonable prospects of persuading the Court at trial that CHSL has not discharged the burden that would lie on it that it terminated Ms Kelly’s employment for the reasons stated in its letter dated 27 May 2024.
I accept CHSL’s submission that the case, as framed in the Form 2, is not capable of supporting a claim for the payment of an amount representing alleged overtime entitlements, because such a claim could only arise out of a contract or some industrial instrument that contains a term that provides for the payment of overtime. I do not accept, however, CHSL’s submission that, even if Ms Kelly had articulated an arguable claim based CHSL’s contravening s 340(1) of the FW Act, that would not support a claim equal to six month’s wages. Although Ms Kelly refers to this claim for compensation as “unfair dismissal”, it appears that Ms Kelly intends to claim an amount for wages she says she would have earned, had CHSL not terminated her employment. That is a recoverable head of damage for a contravention of s 340(1) of the FW Act.
OTHER FACTORS
CHSL does not submit it will suffer prejudice if an extension is granted, but it does submit that the absence of prejudice by itself is an insufficient ground for making an order extending time. There is no evidence that Ms Kelly took action to contest her termination other than by applying to the FWC; and there is no evidence that granting or refusing the extension will give rise to any unfairness between the applicant and any other person in like position to Ms Kelly. These matters are neutral.
DETERMINATION
Considering and weighing all of these matters, and in particular Ms Kelly’s not having formulated an arguable claim, or provided material from which such an arguable claim could reasonably be inferred, I cannot be satisfied that I should extend the 14 day period provided for by s 370(a)(ii) of the FW Act. I therefore propose to order that Ms Kelly’s application for extension of time be dismissed, and that the proceeding be dismissed.
21 I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 28 March 2025
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