Khoreich v Cisco Systems Australia Pty Ltd
[2019] FCCA 3845
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHOREICH v CISCO SYSTEMS AUSTRALIA PTY LTD | [2019] FCCA 3845 |
| Catchwords: INDUSTRIAL LAW – Whether Applicant should be granted an extension of time in filing their application – application was made some 16 days out of time – delay deemed to be small – Applicant relied on assurance from previous legal representation – no prejudice to the Respondent save for expense – substantive matter of constructive dismissal not without some merit. |
| Legislation: Fair Work Act 2009 (Cth), ss.341, 342, 370 |
| Cases cited: Al-Hakim v Toyoor Al Jannah Pty Limited & Ors [2018] FCCA 3184; (2018) 341 FLR 55 |
| Applicant: | BASSAM KHOREICH |
| Respondent: | CISCO SYSTEMS AUSTRALIA PTY LTD |
| File Number: | SYG 2523 of 2019 |
| Judgment of: | Judge Baird |
| Hearing date: | 12 December 2019 |
| Date of Last Submission: | 12 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms U. Okereke-Fisher of Counsel |
| Solicitors for the Applicant: | Revelman Legal |
| Counsel for the Respondent: | Mr B. Rauf of Counsel |
| Solicitors for the Respondent: | Seyfarth Shaw Australia |
ORDERS
ALLOWS the application to extend time made in the amended application dated 4 December 2019 and in the originating application dated 24 September 2019 and filed 26 September 2019.
ORDERS that the time for the Applicant to make an originating application under the Fair Work Act 2009 (Cth) and Form 2 alleging dismissal in contravention of a general protection and the subject of the certificate issued by the Fair Work Commission dated 27 August 2019, be extended to 26 September 2019.
GRANTS LEAVE to the Applicant to file an amended application and Form 2 substantially in the form before the Court on 12 December 2019.
DIRECTS the Applicant to file and serve a concise statement of its claim by 31 January 2020.
STANDS OVER the proceeding for further directions on 21 February 2020 at 9:30am.
GRANTS liberty to apply on 3 days’ notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2523 of 2019
| BASSAM KHOREICH |
Applicant
And
| CISCO SYSTEMS AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
Introduction
The Applicant seeks an extension of time to file an Application with the accompanying Form 2 claim under the Fair Work Act 2009 (Cth). The Applicant filed the Application and accompanying Form 2 on 26 September 2019. Pursuant to s.370(a)(ii) of the Act, the last day on which the Applicant was entitled to make the application was 10 September 2019. The Application was thus filed 16 days out of time.
In this proceeding, the Applicant claims that the Respondent, his previous employer, took adverse action in the form of constructive dismissal because the Applicant had exercised a workplace right to make a complaint. The complaint is asserted to be making complaints in relation to an investigation process undertaken by the Respondent relating to allegations of sexual misconduct.
The proceeding before me today
Before me, the Applicant’s Counsel, Ms Okereke-Fisher, indicated that were the Applicant permitted to prosecute his substantive case, he would seek to amend to add alternative grounds that the Applicant was injured by a prejudicial alteration to his terms and conditions by a letter dated 24 February 2019, and specifically, a reduction in his base salary of 12.5%. That letter is in evidence, but it may be that not all of the circumstances upon which either party would rely in the substantive case (so amended) are currently before the Court. The Applicant seeks compensation and pecuniary penalties.
The Respondent, represented today by Mr Rauf of Counsel, opposes the extension application, specifically, pointing to the merits, and submitting that the application is misconceived, and has no reasonable basis or prospects of succeeding.
The parties are in agreement that the Court has a broad discretionary power to extend time if it considers, in the circumstances of the case, and the interests of justice, that it should do so.
Both parties rely on Brodie-Hanns v MTV Publishing Ltd (1995) 67 RL 298, in which the Industrial Relations Court outlined the principles to be applied in relation to a similar provision under the Industrial Relations Act 1988 (Cth). However, these principles are neither exhaustive nor binding. As both parties have set out those principles in their written submissions, I will refer to them by reference only: see Brodie‑Hanns, per Marshall J at [299] - [300].
The factors the Court will take into account when considering whether it is necessary in the interests of administration of justice to grant an extension of time include, as well:
(a)the extent of delay and explanation;
(b)any prejudice to the respondent because of the delay; and
(c)the merits of the proposed application, or as it is sometimes put, the prospects of success in the substantive application.
Mr Rauf emphasised that it is not the case that an extension should be granted in all but hopeless cases, and to the extent that the Applicant’s Counsel sought to say that, that this was not the appropriate test. I did not understand Ms Okereke-Fisher to so put her client’s case.
I am also guided by the considerable learning in this Court, and in the Federal Court. As Mortimer J has expressed the applicable principles in the context of administrative law matters in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585, at [58] and [63], it is not for the Court, when exercising its discretion in an application for an extension of time, to travel beyond an examination of the grounds of the substantive application at a reasonably impressionistic level, into a full consideration of the arguments for and against the grounds raised in the substantive application.
At [63] Mortimer J stated:
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonably prospects of success”.
So put, I do not understand there to be any serious disagreement between the Applicant and the Respondent, that an applicant’s substantive application should have arguable or at least reasonably-arguable prospects before the discretion to allow an extension of time might be exercised by the Court in an applicant’s favour.
That is not to say that an applicant must establish on the hearing of an application for extension of time that they will succeed or that it will succeed at final hearing: see Gilmore J in Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; 273 IR 439 at [13] in relation to summary judgment applications under the Federal Court of Australia Act1976 (Cth), where his Honour described the inquiry as:
Whether there is a ‘reasonable’ prospect of prosecuting the proceeding or part of the proceeding, not whether a certain and concluded determination could be made that the proceeding or part of the proceeding would necessarily fail.
Adapting what was there said in reliance on Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [51] – [60], it may be said that the inquiry as to whether there might be reasonable prospects is not where there is a certain and concluded determination that the prospects would succeed. In the present case I am neither persuaded that the substantive case would succeed, nor that the substantive case has no prospects or no reasonable prospects. I do not consider that the case is so untenable that it could not possibly succeed.
Delay
First, on the question of any prejudice caused by the delay, there is the admitted prejudice of the costs that have been incurred, and will be incurred, by the Respondent should the case proceed. That aside, as the delay is some two weeks, and is within the year of the occurrence of the circumstances giving rise to the Applicant’s claim, I do not consider that the delay is such that the Respondent, on the evidence, would be prejudiced by a want of evidence, or personnel, neither of which, I should say, were raised by Mr Rauf, but which are matters that may be relevant on the question of delay.
As to the reasons for delay, the Applicant explains the matter as follows: his case is that resignation was properly described as a forced dismissal. His resignation was accepted on, and as effective from, 13 May 2019. Shortly thereafter, on 31 May 2019, the Applicant, through his then lawyers, commenced proceedings in the Fair Work Commission.
A conciliation took place before the Fair Work Commission on 9 July 2019, and the certificate issued by Deputy President Lake pursuant to s.368 of the Act on 27 August 2019. In the period, it appears, from 27 August 2019 to at least until 11 September 2019 correspondence occurred between the parties’ solicitors, and there were considerable efforts expended on behalf of the Applicant’s solicitors to resolve the dispute.
It is apparent from the Applicant’s lawyer’s correspondence, and the Applicant’s evidence, that the lawyers represented to the Applicant that whilst the time in which to commence proceedings in this Court was finite and expired on 10 September 2019, it was possible to apply for an extension of time, and on the face of the correspondence, it does not appear that there was any suggestion by the Applicant’s solicitors to the Applicant that it would be an impediment. The Applicant appears to have relied on his lawyer’s assertions that an extension of time could be sought, and, inferentially, obtained.
I do not consider it is necessary to further detail the correspondence between the parties, save to note that it included offers to resolve the dispute, request for compensation, and an invitation to meet for an informal settlement conference.
On 11 September 2019, the Respondent’s solicitors terminated the correspondence, and made clear that the Respondent did not propose to engage in any informal settlement, did not propose to engage in arbitration, and that it rejected the Applicant’s offers.
The Applicant then became self-represented, and attempted arbitration at the Fair Work Commission. He attests to his uncle passing away on 16 September 2019, and time being spent comforting his aged mother, and attending to his uncle’s memorial service.
On 18 September 2019, the Applicant commenced an e-lodgement process in this Court. However, the documentary evidence is that there was an application for registration as a party on 23 September 2019, and thereafter processes with the Registry, involving applications being pending, and two attempts to file documents, which were both rejected. The originating application before the Court and the Form 2 were successfully lodged on 26 September 2019, treated as accepted that day, and the documents processed and sealed on 2 October 2019.
In these circumstances, I consider that the explanation, whilst not entirely satisfactory, is reasonable. Whilst I do not accept that a party, by ceasing to engage legal representatives, should then have the indulgence of the Court to extend time, as a general rule, in the present circumstances, given the Applicant’s lawyer’s intimations that an extension of time was an option, and then the further delays consequent upon asserted familial circumstances, and the problems with the Registry, which may well be a necessary consequence of electronic filing, I consider that the matter turns ultimately on the prospects of success and substantive merits of the application.
Merits of the substantive application
Counsel before me today, on the basis of three affidavits, two made by Mr Khoreich, the first dated 4 December 2019, and the second 12 December 2019, and Mr Luke Adam Edwards dated 20 November 2019, have provided and rely on a chronology of the Applicant’s employment and notice of redundancy, an offer of a different position and employment, which was accepted, and an allegation of sexual misconduct.
In summary, the allegation was investigated internally by the Respondent. Those investigations included a video conference between the Applicant and an HR representative employed by the Respondent on 8 February 2019, and which then resulted in a warning letter being issued on 22 March 2019 regarding the findings of the Respondent’s investigation.
I do not propose on this application to go into the detail of the events and the correspondence in the period 20 November 2018 through to 22 March 2019, when the warning letter was sent, save to note that as a consequence, the warning letter included a statement that as a result of the seriousness of the Applicant’s conduct, he would be ineligible to receive a salary increase, promotion or stock grants for the next 12 months from the date of the warning. There was reference to a remediation plan. The Applicant gave a written response dated 28 March 2019 in which he stated in the penultimate two paragraphs:
If I have to return back to my old position in the Renewals team, and more specifically working with you, I think it would be difficult to properly carry out my job given the allegations of inappropriate misconduct and the tarnish to my reputation.
I kindly request a meeting with me with a view to discuss the opportunity for me to work on another team.
The Respondent thereafter provided correspondence in which it stated that it was satisfied with the scope and detail of the investigation that was undertaken, and restated that the Applicant would be assigned training on harassment in the workplace shortly. The general tenor of that letter was that it would not be reopening the investigation or undertaking further investigation, and it would not be removing the investigation, findings or warnings from the Applicant’s record, altering the conduct of its findings, nor reopening the investigation to interview further employees.
There seems to have been no suggestion in this letter to address the Applicant’s request to move teams. Further correspondence ensued. It is clear from the letter of the Applicant dated 9 April 2019 that the Applicant was then seeing treating doctors, and a psychologist, and did not consider he was physically or mentally healthy to return to work at that point in time. The Applicant went on sick leave, with medical certificates. On 24 April 2019, the Applicant’s then lawyers sent a letter of demand to the Respondent, which was clarified by a second letter, on 30 April 2019.
The two letters, read together, set out the course of conduct which the Applicant says he was affected, I refer to what is set out in the letter of 24 April 2019 under the heading “Our Client’s Position”, and note the statement by the Applicant’s solicitors that the Applicant is being advised by his treating psychologist that his mental state and physical wellbeing would deteriorate further if he were to return back to the same employment. That statement is preceded by reference to working under the management of a Ms Gagel, who seems to have been the person who issued the warning letter, and was his boss.
The letter of 24 April 2019, as clarified by the letter of 30 April 2019, made an offer to resolve the dispute, which included an offer to resign his employment on certain conditions. By letter dated 2 May 2019, the Respondent’s solicitors rejected the offer, and made clear the Respondent’s position that it denied it ever subjected the Applicant to unfair and harassing workplace experience, or that it demonstrated disregard for his wellbeing and health as alleged.
The Respondent’s solicitors stated that the Respondent was satisfied that its investigations into the allegation against the Applicant were thorough and procedurally sound, and the Respondent was satisfied that the steps it had taken in response to the findings made in the investigation were reasonable and entirely appropriate in the circumstances, and that the proceeding was now closed.
The Respondent’s letter stated that the Applicant was given multiple opportunities to, and did participate in, the Respondent’s investigation, and at no point did he make any complaints or raise any issues regarding Ms Gagel’s conduct towards him during the investigation. Having rejected the Applicant’s claims and demands, and reiterated the Respondent’s position that all that it did, or did not do, was procedurally sound and thorough, and that the investigation was closed, the letter concluded with the following:
Notwithstanding the rejection of your client’s offer, it of course remains open for your client to resign from his employment if he wishes to do so. In the event that your client was to resign from his employment, he would be paid all of his statutory and contractual entitlements. If your client does not wish to resign, our client looks forward to him returning to work when he is deemed fit to do so by his treating medical practitioner.
I should say that that letter was preceded by Ms Gagel inviting the Applicant to meet with the Respondent on about 9 April 2019, such “invitation” nominating 10 April 2019. According to the documents, this invitation was made in the face of, according to the documents, Ms Gagel being provided with medical certificates which stated that the Applicant was not in a position to return to work. I should say for completeness, following those exchanges of correspondence on 10 May 2019, the Applicant through his solicitors offered his resignation. In that offer, the Applicant’s solicitors stated:
In light of the above factors set out in the letter, it is unnecessary and inappropriate that our client be forced to carry out a notice period of one month as stipulated in his employment contract.
That offer was accepted.
By letter dated 13 May 2019, the Respondent’s solicitor accepted that offer and relieved the Applicant of his contractual notice period of one month. The effect, of course, was that the Applicant resigned effective 13 May 2019.
In sum, the Applicant alleges that he had a workplace right because, as an employee, he was able to make a complaint or inquiry in relation to his employment, that he did make a complaint or inquiry to the Respondent in respect of the workplace investigation into allegations made against him, and that he was constructively dismissed because he exercised that workplace right.
The complaint or inquiry in respect of the workplace investigation are made in the context of the communications or attempted communications that the Applicant made, which appear to have been on 8 February 2019, and thereafter, after the warning letter 22 March 2019. The course of conduct that then took place (which on the Applicant’s case constituted a constructive dismissal) included:
(i)the unauthorised and unilateral decision to vary the Applicant’s employment conditions, including reduction of his base salary;
(ii)denial of procedural fairness in the course of the workplace investigation;
(iii)the imposition of the salary increase bar and promotion for 12 months in circumstances where the Applicant was not given a genuine opportunity to address the allegations; and
(iv)apparent lack of support from the Applicant’s direct manager (Ms Gagel).
Whilst Mr Rauf for the Respondents has urged the Court not to be distracted by issues of whether or not the outcome of an investigation was procedurally or substantially unfair, I do not understand him to say that a conclusion that conduct constituted a constructive dismissal is not available where a respondent’s course of conduct renders a work environment such that an applicant is put in the position where for them to attend the workplace would be destructive or bad for their mental or physical health: see Manousaridis J’s consideration in Al-Hakim v Toyoor Al Jannah Pty Limited & Ors [2018] FCCA 3184; (2018) 341 FLR 55 at [113].
Whilst I consider the circumstances in that case very different, the sense of the word “force”, including to “bring or to drive a person into a course of action or condition”, and his Honour’s consideration at [113], support the conclusion that whilst the Applicant’s resignation in the letter of 10 May 2019 emanated from the Applicant’s lawyers, applying the test as to the merits of substantive application on an extension of time, that the Applicant has an arguable, or reasonably arguable, prospect of establishing his claim that he exercised a workplace right within s.341(1)(c)(ii), and that the Respondent took adverse action against the employee within the meaning of s.342(1)(i)(a) or (b) of the Act.
Conclusion
It follows that I reject the Respondent’s submission that the Applicant will necessarily fail to satisfy the threshold matters necessary to establish, as an objective fact, the basis for his claim. It further follows that I consider that the Applicant has reasonably arguable prospects of establishing that the Applicant was dismissed from his employment. At the level of review that the Court is directed to undertake for the purposes of considering whether in the interests of justice, there should or should not be an extension of time, I have concluded that the extension should be allowed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate: H Upton
Date: 5 February 2020
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