Lee v Halley
[2020] FCCA 3178
•20 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEE v HALLEY | [2020] FCCA 3178 |
| Catchwords: INDUSTRIAL LAW – Extension of time needed to commence general protections proceedings – factors for consideration – delay of three hours – no prejudice – arguable case in relation to substantive application – extension of time granted. |
| Legislation: Fair Work Act 2009 (Cth), pt.3-1, ss.340, 342, 351, 368, 370, 550 Federal Circuit Court Rules 2001 (Cth), rr.2.05, 9.04 |
| Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 |
| Applicant: | TANYA MARIE LEE |
| Respondent: | JEANINE MARIA HALLEY |
| File Number: | PEG 261 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 November 2020 |
| Date of Last Submission: | 20 November 2020 |
| Orders Pronounced: | 20 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Respondent | In person |
ORDERS
The time for filing of the application be extended under s.370(a)(ii) of the Fair Work Act 2009 (Cth) to 27 August 2019.
Skin Studios Pty Ltd be substituted as the respondent in these proceedings.
The matter be referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
If the matter does not resolve at the mediation referred to in order 3 above, the matter be listed for further directions before the Court on a date and time to be fixed.
For the purposes of the mediation referred to in order 3 above, Ms Jeanine Maria Halley have leave to represent the respondent pursuant to r.9.04 of the Federal Circuit Court Rules 2001 (Cth).
Written reasons for judgment be published from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 261 of 2020
| TANYA MARIE LEE |
Applicant
And
| JEANINE MARIA HALLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 26 August 2020, at 7:29pm, the applicant (Ms Tanya Marie Lee) filed a substantive application in this Court against her former employer alleging contraventions of the Fair Work Act 2009 (Cth) (the “Act”).
The applicant claims that when she tried to raise concerns about the workload expected of her as a mother trying to care for her children, she was treated poorly by her employer and ultimately dismissed. On the face of the claim, the applicant appears to suggest that there has been a breach of ss.340 and 351 of the Act.
The respondent, Ms Halley, filed a response on 26 October 2020 denying all claims. Ms Halley is a director of Perth Skin Studios Pty Ltd (the “Skin Studios”), where the applicant worked.
On 3 November 2020, both parties appeared in person before this Court without legal representation. The Court noted that the applicant had filed her application approximately three hours outside of the time limit specified in s.370 of the Act. Accordingly, she required an order extending time. The respondent indicated that she opposed the Court granting an extension of time.
The Court made orders as follows:
1. The parties file any affidavits and outlines of submissions in support of the extension of time by 13 November 2020.
2. The matter be listed for an interlocutory hearing on the issue of an extension of time on 20 November 2020 at 10.00am.
On 20 November 2020, the parties appeared before the Court for the extension of time application. The Court ordered as follows:
1. The time for filing of the application be extended under s.370(a)(ii) of the Fair Work Act 2009 (Cth) to 27 August 2020.
2. Skin Studios Pty Ltd be substituted as the respondent in these proceedings.
3. The matter be referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
4. If the matter does not resolve at the mediation referred to in order 3 above, the matter be listed for further directions before the Court on a date and time to be fixed.
5. For the purposes of the mediation referred to in order 3 above, Ms Jeanine Maria Halley have leave to represent the respondent pursuant to r.9.04 of the Federal Circuit Court Rules 2001 (Cth).
6. Written reasons for judgment be published from Chambers at a later date.
These reasons are those referred to in order 6 above.
Background and the Applicant’s Claim
The applicant was employed by Skin Studios as a casual dermal therapist. She commenced employment in July 2018. She worked 16-18 hours per week.
The respondent, Ms Halley, is a director of Skin Studios.
As a result of the COVID-19 pandemic health crisis, Skin Studios was forced to close on 25 March 2020.
On 7 April 2020 (when Skin Studios became eligible for JobKeeper payments), Ms Halley advised the applicant (and other employees) that during their stand down they should complete training courses/tasks that Ms Halley shared with/requested of them.
The applicant states that she advised that she would attend to the training modules when she could but was working three days per week at another job, had sole care of her two children and was home-schooling them. This, she says, caused a great deal of anxiety – so much so that she had to book an appointment with a doctor.
The applicant did not complete all of the assigned courses or tasks requested of her. The respondent contacted the applicant (or attempted to contact the applicant) on various occasions between 13 April 2020 and 24 April 2020 to discuss whether all tasks and courses had been completed.
On 27 April 2020, the applicant was issued a warning letter. That letter advised that the applicant needed to improve her performance and complete the tasks requested by her employer. The applicant was asked to meet with the respondent on 30 April 2020. The applicant indicated that she would be unable to do so and exchanged various emails with the respondent.
On 29 April 2020, the respondent terminated the applicant’s employment. The termination letter stated:
Based on the responses received by yourself, in regards to the Warning Letter issued 26 April 2020, it seems that the employment issues cannot be resolved.
The applicant commenced proceedings in the Fair Work Commission claiming that she was dismissed in contravention of pt.3-1 of the Act.
The Fair Work Commission conducted a conciliation conference on 12 August 2020. That conference was unsuccessful and a certificate pursuant to s.368 of the Act was issued.
On 26 August 2020 at 7.29pm, the applicant commenced proceedings in this Court. She alleges:
6. When I advised Jeanine of my willingness to do the work requested but that I would have to do it in a longer time frame as I was caring solely for my children and would be homeschooling them, I feel she responded with a negative action toward my workplace right to voice my concern as an employee regarding her expectations when I am a single parent unable to keep to her requests. I always confirmed I would complete the training modules and would do so as soon as I physically could. I have started and am part way through a 6module training course. Again, I feel exercising my workplace right was then met with the Warning Letter. Once the warning letter was received, Jeanine offered two dates to meet and I offered one. None of which worked for us. Within 3 days of receiving my Warning Letter I had received my Letter of Termination. This was all done very quickly. 3 days is not enough time to arrange a meeting and if I felt she was correct in her assumptions and she wanted me to do more, 3 days was very little time to do so. Especially when I received my Warning Letter on a Sunday and Monday was a public Holiday. She sent the Termination Letter on Wednesday.
7. I feel I have been discriminated against due to my inability to perform all tasks expected of me in the time Jeanine expected them. As a causal staff member I am within my rights to not accept all work offered. I have always worked shifts given to me and have rarely had a sick day. I do not get paid any benefits for leave or sick leave if I am away. I have always been praised for my great work ethic by Jeanine and praised for bringing so many clients to her clinic and growing her business significantly. Jeanine has always been pleased with my work and I haven’t received a warning before. I have been thanked by Jeanine’s husband for being such a good employee and someone she could count on when she went on leave and I would run the clinic for her. He told she said she was grateful to have me there. When I have voiced my concern in the workload expected of me while I am trying to care for my young children, I was treated very poorly and then received the letters threatening my job.
Read broadly, the applicant is claiming that the following adverse action was taken against her:
a)she was issued a warning letter; and
b)she was dismissed.
The applicant is claiming that these actions were taken against her because she exercised a right to complain (about the expectations placed upon her in the circumstances) and because of her carer responsibilities. The applicant appears to rely on s.340 and s.351 of the Act.
Extension of Time
Section 370(a)(ii) of the Act requires that an application be lodged in this Court within 14 days after the day the certificate is issued.
The certificate was issued on 12 August 2020. Relevantly, “14 days after the day the certificate was issued” is 26 August 2020.
On a preliminary view, the applicant filed her application 26 August 2020. However, the applicant filed her application on 26 August 2020 at 7:29pm.
Rule 2.05 of the Federal Circuit Court Rules 2001 (Cth) provides that where an application is filed by electronic communication (which it was here), if accepted, it 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; and
(b) in any other case--on the next day the Registry is open for business.
The whole of the document was not received by 4:30pm on
26 August 2020. It was received at 7:29pm on 26 August 2020. Accordingly, the application is 2 hours and 59 minutes late. It is taken to have been filed on 27 August 2020 – not 26 August 2020.
The Court has a discretion to extend the time for the applicant to pursue her application.
The factors the Court will generally look at were identified in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 as follows:
1.Special circumstances are not necessary but the court must be positively satisfied that the 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.
While this list is not exhaustive, it is a useful guide when considering whether to exercise the discretion to extend time in the circumstances and facts of this case.
Length and Explanation
The length of the delay is just under three hours. This period of time is largely insignificant.
The explanation for the delay is, quite simply, focused on a procedural intricacy of the Court’s Rules which is often overlooked by lawyers.
Given that the applicant is unrepresented, it is entirely reasonable that she would have assumed that she had until, in effect, 11:59pm to lodge her application. However, that is not the case. The Rules deem any document received after 4:30pm to be taken as filed the following day.
The Court considers the minimal delay and the explanation provided weighs in favour of granting an extension of time. This is particularly the case where the applicant is unrepresented and she has not “sat on her hands” per se. She was simply unaware of the Court’s practice and procedure.
Prejudice and Fairness
The Court considers the minimal delay to have caused no prejudice to the respondent. The delay was, as stated, a matter of hours.
The delay in filing and serving the application does not, in the Court’s view, have any substantive effect on the fairness of the proceedings generally. There will be no prejudice suffered by either party in terms of the delay impacting witness recollection or any other hardship from pursuing or defending the action.
Overall, the lack of substantive prejudice and the ability to conduct the proceedings in a fair and efficient manner despite the delay weighs in favour of an extension.
Merits of the Claim
The merits of a case will often be the determinative factor in deciding whether an extension should be granted.
The merits of any application are to be considered at a necessarily impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391.
However, where a case is not reasonably arguable and has no prospect of success, it would be against the interests of the administration of justice to allow an extension: SZTES v Minister for Immigration & Border Protection [2015] FCA 719.
The Court notes that the respondent was not the applicant’s “employer”. The applicant’s employer was Skin Studios. The respondent, at its highest, could be someone “involved in” the contraventions as per s.550 of the Act.
The certificate names the applicant and respondent as parties. It does not name Skin Studios. This is relevant because, as the substantive application stands, the definition of “adverse action” (which is a requisite element of s.340 and s.351) requires that the “employer” take adverse action against the “employee”. Here, the employer is not presently a party.
This could, on a strict view, mean that the application is hopeless and has no merit. The Court notes, however, that similar circumstances arose in Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 (“Knight”). The wrong employer had been named on the certificate issued by the Fair Work Commission and the applicant sought leave to amend the respondent’s name to include the employer (instead of a related entity originally thought to be the employer).
In Knight, the Court found that there was no jurisdictional bar to the Court allowing such an amendment.
Here, as was the case in Knight, the employer’s representative (Ms Halley) has participated in the proceedings before the Fair Work Commission and the parties had proceeded on an understanding that there was an “employment relationship” which the respondent was a part of.
Accordingly, to find that the matter was hopeless on the basis that the certificate did not identify the correct employer would be to deny the applicant access to justice on the basis of a mere technicality.
The Court proceeds on the basis that Skin Studios is a named party. Orders to amend will, accordingly, be made.
There is no doubt that adverse action was taken against the applicant when she:
a)was issued a warning letter (adverse action as per s.342(1), item 1(c) of the Act and Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131);
b)was dismissed from her employment (s.342(1), item 1(a))
The applicant claims that she “voiced her concern” about the tasks she was being asked to undertake and the time provided to do so.
There is a text message from the applicant which reads:
…I’m fine with these courses and online trainings but I do have to work around my kids also. I have them on holidays and if schools don’t reopen I will be homeschool also.
Other text messages outline the commitments the applicant had with her children and her other employment.
While temporal connections are not dispositive, there is a temporal connection here between the adverse action and the expression of the applicant’s concerns.
At the interlocutory hearing, the applicant was clearly distressed by what had occurred. She indicated that she felt that she had been treated poorly. The respondent, in response, stressed the applicant was not dismissed for reasons related to childcare. Rather, she was dismissed because “she refused to work”.
On an impressionistic level, it is arguable that adverse action was taken on the basis that the applicant had not completed tasks or work requested of her by her employer in circumstances where she had child care responsibilities. These are factual issues which are clearly arguable.
Accordingly, on the basis of the (limited) materials before the Court, the Court is satisfied that there is merit in the application.
Conclusion
In circumstances where the delay is minimal, the explanation is acceptable, there is limited prejudice and unfairness if an extension is granted and the application is “arguable”, the Court finds that an extension of time should be granted.
An order extending time will be made.
Other Issues Arising
The Court has noted above that there is a requirement that the name of the respondent be changed to the applicant’s employer - Skin Studios. An order naming Skin Studios as the respondent will be made.
The Court notes that the applicant’s claim does reference Ms Halley as the person who took the actions against the applicant. Whether the applicant wishes to make a claim against Ms Halley pursuant to s.550 of the Act is unclear. Should she wish to do so, that is a matter that she will need to seek leave for at a later date.
Further, the consequence of the Court substituting Skin Studios for the respondent is that, by virtue of r.9.04 of the Rules, the new respondent is required to be represented by a lawyer (unless leave of the Court is granted).
To ensure that the matter progresses without further delay, the Court will grant Ms Halley leave to appear on a limited basis. She will be allowed to represent Skin Studios at mediation. If the matter is unsuccessful at mediation, Skin Studios will be required to be represented by a lawyer or an application in a case will need to be filed requesting an order that Ms Halley be allowed to appear.
Conclusion
The application for an extension of time is granted and an order will be made accordingly.
An order naming “Perth Skin Studios Pty Ltd” as the respondent will also be made.
The matter will be referred to mediation before a Registrar of this Court. For the purposes of that mediation, Ms Halley will have leave to represent the respondent.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 November 2020
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