Mann v S and PLS Pty Ltd
[2020] FCCA 636
•20 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANN v S & PLS PTY LTD & ORS | [2020] FCCA 636 |
| Catchwords: INDUSTRIAL LAW – Extension of time application – general protections claim – factors to be considered – extension of time granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 368, 370 Federal Circuit Court Rules 2001 (Cth), r.2.05 |
| Cases cited: Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 |
| Applicant: | BLAKE MANN |
| First Respondent: | S & PLS PTY LTD (ACN 627 533 153) |
| Second Respondent: | PUKSER LAMICHHANE |
| Third Respondent: | SUDHIR LAMICHHANE |
| File Number: | PEG 270 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 19 March 2020 |
| Date of Last Submission: | 19 March 2020 |
| Delivered at: | Perth |
| Delivered on: | 20 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Stojanoski |
| Solicitors for the Applicant: | Slater + Gordon Lawyers |
| Counsel for the Respondents: | Mr D Singh |
| Solicitors for the Respondents: | Friedman, Lurie, Singh and D’Angelo |
ORDERS
The time for filing of the application be extended under s.370(a)(ii) of the Fair Work Act 2009 (Cth) to 10 July 2019.
The matter be referred to a 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 2, the matter be listed for directions before the Court on a date to be fixed.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 270 of 2019
| BLAKE MANN |
Applicant
And
| S & PLS PTY LTD (ACN 627 533 153) |
First Respondent
| PUKSER LAMICHHANE |
Second Respondent
| SUDHIR SHRESTHA |
Third Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, Mr Mann, filed an application in this Court (the “Substantive Application”) on 9 July 2019 alleging that the first respondent (“S & PLS”) had dismissed him in contravention of s.340 of the Fair Work Act 2009 (Cth) (the “FW Act”). The applicant was not represented when he filed the Substantive Application.
The Substantive Application was filed outside of the statutory time limit provided in s.370(a)(ii) of the FW Act. It was more than 100 days late.
In the circumstances, the applicant requires an extension of time in order to allow him to pursue these proceedings.
The applicant has now filed an application in a case seeking an extension of time within which to file the Substantive Application. He now has legal representation.
Background
On or around 15 February 2019, the applicant filed a General Protections application in the Fair Work Commission (the “FWC”) alleging that he was dismissed in contravention of a general protection provision.
On 15 March 2019, following an unsuccessful conciliation conference, the FWC issued a certificate under s.368 of the FW Act indicating that attempts to resolve the dispute had been unsuccessful.
On 9 July 2019, the applicant filed the Substantive Application in this Court.
On 23 July 2019, the applicant obtained legal representation.
The applicant’s legal representative, the second respondent and the third respondent attended a first court date on 15 August 2019. On that occasion, the applicant’s legal representative indicated that the applicant did not oppose the second respondent and the third respondent having leave to appear on behalf of S & PLS. The second respondent and the third respondent indicated that they opposed the applicant being granted an extension of time to commence these proceedings. The Court made orders as follows:
…
5. Until further order of the Court, Pusker Lamichhane and Sudhir Shrestha have leave to appear on behalf of S & PLS Pty Ltd (ACN 627 533 153).
6. The applicant shall file and serve an application for an extension of time pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) supported by an affidavit.
7. The parties file and serve submissions 14 days after the date of service of the application. The application for an extension of time be listed for hearing on a date to be fixed.
…
The applicant filed an application in a case on 3 October 2019 in which he sought an order for an extension of time.
The application in a case seeking an extension of time is the subject of this judgment. The applicant filed an affidavit affirmed 2 October 2019 in support of the application in a case. On 18 October 2019, the applicant filed written submissions.
Due to limited judicial availability in the Perth Registry, the matter could not be listed for the hearing of the extension of time request until 19 March 2020.
On 17 March 2020, a notice of acting was filed by the respondents. On the same date, and without leave of the Court, an 89 page affidavit from the second respondent was filed. Written submissions were filed by the respondents on 18 March 2020.
At the hearing on 19 March 2020, neither party made oral submissions. The evidence before the Court in support of the extension of time application was the applicant’s affidavit affirmed 2 October 2019 and the affidavit of the second respondent sworn 17 March 2020.
Principles
Section 370(a)(ii) requires that an application in this Court be commenced within 14 days after the day the s.368 certificate is issued, or, within the time the Court allows for the application to commence. Accordingly, the power to extend time under s.370(a)(ii) is discretionary.
In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230], Marshall J (“Brodie-Hanns”) identified the matters the Court may take into account when determining whether an extension of time ought to be granted:
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.
This list is not exhaustive and the Court will not adopt a “checklist approach” when considering whether to grant an extension of time. The Court may consider other matters it considers relevant and do so having regard to the individual facts and circumstances of the case.
Applicant’s Case
As noted, the applicant filed an affidavit in support of his request for an extension of time. Relevantly, that affidavit states:
a)the applicant raised complaints regarding underpayment with the second and third respondent on 3 February 2019. The applicant again raised complaints with the second respondent and the third respondent on 14 February 2019 about the underpayments. He advised the third respondent that he had contacted the Fair Work Ombudsman (the “FWO”). The applicant received a text message that evening advising him that his next shift was cancelled. The applicant met with the second respondent after his shift who advised him he was “fired”;
b)the applicant contacted the FWO after the FWC certificate was issued. He was advised to file a General Protections Claim in the Magistrates Court. He did so on 29 March 2019;
c)the applicant was able to obtain an appointment at the Employment Law Centre of Western Australia on 2 April 2019. He was not advised that he had not filed the application in the correct court;
d)the applicant took steps to progress his claim in the Magistrates Court. He was told he should seek legal advice and attempted to contact various law firms. Eventually he was able to obtain an appointment and on 28 June 2019 was advised that he should file an “out of time claim” in this Court;
e)the applicant attended an appointment with his current lawyers on 1 July 2019. However, he did not retain the lawyers at this time; and
f)the applicant began filing the application in this Court on 2 July 2019 but due to errors relating to the form of the application it was not immediately accepted.
The applicant’s written submissions to this Court provide as follows:
a)the applicant’s affidavit indicates that the applicant was proactive in pursuing his claim and this is a reasonable explanation;
b)the applicant utilised the statutory mechanism and contested the termination at the FWC prior to bringing the dispute to this Court. As such, the second Brodie-Hanns principle has been met;
c)there is no evidence or reasonable basis to infer that the respondents will suffer prejudice because of the applicant’s delay in commencing his application;
d)this is not a case where evidence will be lost or memory will deteriorate to an extent which will prejudice a fair trial. The evidentiary make up of this case is not complex and the respondents have already put their recollections in writing in the documents submitted to the FWC;
e)there does not appear to be any dispute that the applicant’s work hours were reduced and that he was dismissed. The applicant has exercised his workplace rights as stated in his affidavit. The reverse onus has been enlivened;
f)the applicant should not be prevented from pursuing his claim in circumstances where he applied reasonable efforts to inform himself of the correct procedure and comply with the limitation period, there is no apparent reason why the delay has caused or would cause prejudice to the respondents and the delay will not or should not be reasonably expected to cause unfairness or disruption to the hearing of the claim; and
g)underlying the applicant’s claim is the assertion that the respondents were motivated to remove the applicant from the workplace rather than abide by obligations arising from the relevant Award. The nature of the conduct weighs in favour of an extension.
Respondents’ Case
The affidavit of the second respondent provided as follows:
a)S & PLS acquired the business in which the applicant was employed on 21 December 2018. At no time were the respondents aware that the applicant had been employed in the business prior to this;
b)on 10 January 2019, the applicant commenced work as a casual employee at the business employed by S & PLS. The applicant had no set hours of employment;
c)the second respondent denies any conversation occurred with the applicant on 3 February 2019;
d)the second respondent denies that the applicant raised a complaint after his shift on 14 February 2019 about his pay slips or that a conversation even occurred in which the applicant was advised he was “fired”;
e)the reason for the applicant’s shift being cancelled was that there were a low number of bookings and February had been a “slow” month. It was determined that the applicant was not needed for the shift and no other employee replaced him;
f)the applicant’s behaviour and performance had also been of concern to the respondents. However, when cancelling the applicant’s shift the respondents had not yet decided whether the applicant would be offered any further shifts; and
g)the claim the applicant has made in the Magistrates Court is a “live claim” and has not been discontinued by the applicant. The respondents have entered an appearance and given a notice of intention to defend.
The respondents’ submissions filed 18 March 2020 can be summarised as follows:
a)the sheer length of the delay (over 100 days) weighs heavily against the extension being granted and on that basis alone the extension should be denied;
b)the applicant did not lodge the application in a case seeking an extension of time until 3 October 2019. The applicant has repeatedly failed to prosecute his intended claim diligently and the Court ought not indulge his repeated failures by granting an extension of time;
c)S & PLS ought (justifiably) to have been entitled to assume that the applicant’s failure to file an application in this Court meant that there was finality to the litigation commenced in the FWC and that it was entitled to conduct its business and financial affairs on that basis;
d)the orders sought in the extension of time application are open ended and confusing. To that extent, it is incompetent. The first respondent could not tell what “substantive application” it might be facing if the extension were to be granted by the Court. Without knowing the case it may face, the respondents could not take steps to ensure that evidence which may become relevant if an extension of time were granted was not lost, compromised or became inaccessible or that witnesses whose evidence could be relevant remained contactable;
e)apart from the fact that it would be grossly unfair and prejudicial for S & PLS to be faced with the situation where an application is allowed so long out of time, the applicant’s failure to file a competent application for an extension of time has caused further prejudice and unfairness to the respondents;
f)ignorance of the law is no excuse, especially on the facts in this case, where the applicant has obviously read the certificate provided by the FWC and in which specific reference is made to appropriate forums to bring any general protections claim. Further, the applicant knew or ought to have known that the Magistrates Court of Western Australia is not one of those forums;
g)it is clear from the application and the applicant’s affidavit that he has no grounds to allege that S & PLS had taken adverse action against him by dismissing him;
h)the applicant has not claimed that he was employed on a “regular and systematic basis”. In these circumstances the applicant cannot maintain that his employment by S & PLS was terminated as there is no assertion anywhere that as at the time of his alleged termination the applicant had been rostered for any further work shifts. In this regard, it is noteworthy that the applicant’s case is not that the cancellation of his shift scheduled for 16 February 2019 was in itself an act of termination but that his alleged termination of employment took place as a result of him discussing his cancelled shift with the second respondent;
i)to put it another way, the applicant claims compensation without alleging any causal connection between an alleged adverse action and an alleged loss, a claim which cannot have any merit;
j)the certificate issued by the FWC shows the second respondent and the third respondent were never parties to the claim terminated by the FWC. Further, the Substantive Application does not articulate any claim against either of them. Therefore, there is no merit in them being parties to any application; and
k)the Magistrates Court action is on-going and, in the circumstances, allowing the application for an extension is to allow an abuse of this Court’s processes. This is clearly against the public interest.
Consideration
Before proceeding, it is necessary to clarify one issue regarding the date on which the Substantive Application was filed. Both parties refer to the application having been filed on 19 July 2019. This is incorrect. The Notice of Filing and Hearing indicates that the Substantive Application was lodged on 9 July 2019 at 8.40pm. Rule 2.05(3) of the Federal Circuit Court Rules 2001 (Cth) provides that the date of filing of the document is the day it was lodged (not accepted) unless it is received after 4.30pm. In that case, the document is taken to have been filed the next business day. Hence, the Substantive Application was filed on 10 July 2019.
The respondents’ submissions take issue with the form of the application in a case seeking an extension of time. Specifically, the respondents take issue with the applicant seeking an order that:
… the time for filing of the substantive application be extended.
The respondents refer to the fact that the order sought does not specify any date to which the extension is sought, nor that the “substantive application” is the application that was filed on 10 July 2019 (although the respondents refer to 19 July 2019).
It is apparent that the “substantive application” that is referred to in the application in a case is the Substantive Application filed on 10 July 2019. There is no other application on the Court’s file and the respondents were only served with one application. Further, the applicant’s affidavit (which was filed in support of the application in a case) makes it clear that the “substantive application” was that which was filed on 10 July 2019.
As for the failure to specify the time in which the applicant sought an extension to, the Court does not consider this to ne of any significance. Section 370(a)(ii) specifically states that the application must be made within such period as the court allows. Hence, the length of the extension granted can be determined by the Court. While the applicant could have stated “to the date of filing” (or something of this nature), it is again self-evident that the applicant was seeking an extension of time for a period that would allow him to pursue his claim.
The Court considers this argument to be more about semantics than substance. The respondents were not prejudiced by the failure to identify the time for which the extension was sought. Nor were they prejudiced because the “substantive application” was not specifically referenced.
Length and Explanation for the delay
The applicant’s submissions referred to the case of Clarke v Service to Youth Council Incorporated [2013] FCA 1018, wherein the Court discussed the emphasis the High Court had placed on limitation periods. Given the importance of limitation periods, the length of the delay is also a relevant factor in determining whether an extension of time should be given.
Here, the length of the delay is over 100 days. This is substantial and weighs against granting an extension of time.
The longer the delay the more comprehensive the explanation must be: Tran v Minister for Immigration and Border Protection [2014] FCA 533.
The applicant’s explanation for the delay is well supported by the contemporaneous documents included in his affidavit.
A lack of understanding about how to commence an application does not, itself, constitute an “adequate explanation”. As the respondents submit, ignorance is no excuse.
The FWC certificate clearly indicates that the applicant must commence an application in this Court (or the Federal Court) within 14 days. The applicant did not explain whether he had considered or noted this “Important Note” on the base of the certificate. Instead, the applicant relied on the advice of the FWO.
Despite this, the Court notes that the applicant was not “sitting on his hands”. While the information the applicant needed was in his possession (namely, the certificate referencing this Court), the applicant took steps to contact organisations whom he thought would be able to assist him with progressing his claim and advise him of what he needed to do next. The Court does not consider it to have been unreasonable for the applicant to follow the advice of the FWO – notwithstanding that there was an indication on the face of the certificate that this advice might be incorrect.
The Court gives weight to the fact that the applicant had lodged a claim in the Magistrates Court within the relevant time limit. The applicant was taking what he thought were the correct steps to progress the matter within the time limit. He himself attended upon the Magistrates Court to have the matter listed for case management and, when he was advised that he may not have commenced the proceeding correctly, he immediately sought to identify what the correct course of action was and took steps to inform himself.
The applicant, at all times, was pursuing a claim against the respondents (albeit incorrectly).
The Court is of the view that the applicant’s explanation for the delay is sufficiently adequate.
This weighs in favour of extending the time within which to file the Substantive Application.
Prejudice and Fairness
The respondents claim that they were entitled to assume that the applicant’s failure to file an application in this Court meant that there was finality to the litigation and that they will be, as a result, prejudiced if an extension of time is granted.
This is not entirely correct. The applicant commenced proceedings in the Magistrates Court which referenced s.340 of the FW Act. This was the subject matter of the FWC proceedings. The respondents filed a notice of intention to defend on 10 April 2019. The Court does not consider the respondents to have “assumed” finality in relation to the FWC litigation in circumstances where it was raised in the Magistrate’s Court claim – which, relevantly, was on foot soon after the FWC proceedings ceased.
The Court has considered whether the delay in this case could prejudice or undermine the reliability of any evidence that will be given should the matter proceed to a full hearing. The respondents submit that they do not know the case they may have to meet and that they could not take steps to ensure that evidence which may become relevant was not lost, compromised, became inaccessible or that witnesses whose evidence could be relevant remained contactable.
The substantive evidence in these proceedings will be from the parties and their account of what events occurred at the relevant period. Neither the applicant, nor the second respondent, indicated that they had difficulty recalling the events that took place around the time of the alleged breach of the FW Act.
Once again, with reference to the Magistrates Court claim, given that the applicant made reference to being dismissed in breach of s.340 and the respondents were on notice of this, the Court considers that steps would have been made to retain any evidence relevant to the applicant’s employment. That view is strengthened by the fact that a review of the affidavit evidence makes it clear that the second respondent was able to provide contemporaneous documents from the period in question. Further, a statement from a “witness” dated 24 February 2019 was obtained.
The Court does not consider that there would be any prejudice to either party in light of the delay.
In terms of fairness, the facts at present allege that S & PLS have breached the FW Act in dismissing the applicant for a prohibited reason. If this is proven, such actions are matters that the FW Act intends to prevent and the respondents should be held to account.
It is a matter of fairness not only to the applicant (that he be compensated) but also to the respondents (so that they do not expose themselves to further breaches) and to the public at large (to educate and instil confidence in workplace protections) that the extension should be granted.
The respondents claim that it would “grossly unfair” to allow an extension of time, particularly as the applicant has a claim in the Magistrates Court. The respondent adds that, because of the claim in the Magistrates Court, it would not be in the public interest to grant an extension as the proceedings are an abuse of process.
The Court does not consider the claim in the Magistrates Court to be significant. The Court accepts that the applicant refers to s.340 in the Magistrate’s Court Claim. However, the applicant has correctly identified that it was incorrect for him to agitate this claim in the Magistrates Court. It does not appear that the applicant has taken any steps to advance the claim in the Magistrates Court since he became aware that he may have pursued the matter in the incorrect forum.
The respondent referred the Court to Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 (“Tomlinson”) at [26] for the proposition that the matter was an abuse of process. In Tomlinson, the Court stated:
… it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.
The Court in Tomlinson refers to the issue being “made or raised and determined”. Here, the Magistrates Court claim has not been determined. There is no evidence that the matter has progressed beyond the defence being filed.
The Court does not believe that granting an extension would constitute an abuse of the processes of this Court in circumstances whether this Court is the correct forum within which to advance the claims made.
Fairness requires that the matter be heard. This weighs in favour of granting an extension of time within which to file the Substantive Application.
Merits
The merits of the Substantive Application will generally be afforded the most weight when determining whether an extension of time should be granted. It would be improper for the Court to exercise the discretion to extend time where an application has no prospects of success.
The respondents submit that the claim lacks merit because of the applicant’s status as a casual employee.
In Thompson v Big Bert Pty Ltd (2007) 168 IR 309 (“Thompson”) (considering s.170CK of the Workplace Relations Act 1996 (Cth) – a general protection) it was stated:
58. The casual nature of Ms Thompson’s employment constitutes a very substantial obstacle to any invocation of s 170CK, quite apart from the facts of the case. Traditionally, casual employees were regarded as employed only for the duration of a specific engagement – usually day to day. This may be contrasted with the traditional assumption that the period of engagement of a full-time or part-time employee was week to week as usually reflected in a formal period of notice for termination
…
61. Ms Thompson was working as a casual employee. She had no fixed roster and no fixed number of hours per week… The fact that no work was offered did not terminate either her contract of employment or any relevant employment relationship …
It is true that the applicant was a casual employee. In these circumstances, it is difficult for the applicant to establish a general protections claim. However, Thompson does not go so far as to say that the status as a casual employee is determinative. There are matters whereby a casual employee has succeeded in bringing a general protections claim: Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716.
The respondents also submit that there is no identifiable pleading against the second respondent and the third respondent. Hence, they argue, the proceeding has no merit against them.
The fact that the second respondent and the third respondent were not named in the certificate is not fatal: Knight v Visionstream Australia Pty Ltd [2017] FCA 1513 at [33].
The Court has borne in mind that at the time that the applicant filed the Substantive Application, he was unrepresented. For this reason, the Court has taken a reasonably impressionistic view of the Substantive Application.
The Court notes that while there are matters which are arguably lacking in the Substantive Application as it now reads (such as the case against the second respondent and the third respondent), it cannot be said that there is no reasonable prospect of success. The applicant’s claims may not yet be properly articulated or formulated but the materials before the Court do disclose a reasonably arguable basis upon which to proceed.
Here, a number of matters arise from the evidence currently before the Court:
a)there are questions as to whether adverse action was taken or could be taken against the applicant. It may well be that the status of the applicant’s employment is fatal. It is no doubt a significant hurdle;
b)there are issues as to whether the applicant made a “complaint” as alleged. The second respondent’s affidavit expressly denies that two of the occasions on which the applicant says he raised complaints occurred. However, the second respondent has not denied that one of the alleged events (before the shift on 14 February 2019) occurred. Hence, there is a live issue as to whether a workplace right has been exercised; and
c)the respondents argue that the applicant’s shift was cancelled because of a downturn in February and a lack of bookings for that specific evening. No records to this effect are in evidence.
There are clearly factual issues that need to be resolved here. Evidence will need to be provided and the Court will need to assess this evidence before any conclusion can be drawn.
In the circumstances, it cannot be said that there is no merit in the Substantive Application.
This weighs in favour of granting an extension of time within which to file the Substantive Application.
Conclusion
The circumstances of this case are such that it is appropriate for the Court to exercise its discretion to extend the time for the applicant to commence proceedings in this Court.
An order will be made extending the time for filing the Substantive Application to 10 July 2019.
Further, as is the usual course for matters of this sort, the parties will be referred to mediation before a Registrar of this Court.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 20 March 2020
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