Mattiacci v The Trustee for Metricon Homes Unit Trust T/A Metricon Homes Pty Ltd
[2017] FCCA 319
•23 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATTIACCI v THE TRUSTEE FOR METRICON HOMES UNIT TRUST T/A METRICON HOMES PTY LTD | [2017] FCCA 319 |
| Catchwords: INDUSTRIAL LAW – General protections application under Fair Work Act 2009 – application for extension of time – consideration of factors – no acceptable explanation for delay – request for extension refused. |
| Legislation: Fair Work Act 2009 (Cth) ss.368, 370 |
| Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 Abela v Telstra Corporation Ltd [2012] FMCA 17 Owen v Cudeco Ltd [2013] FCCA 1827 Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 McPaul v CPC Engineering Pty Ltd [2013] FMCA 71 |
| Applicant: | ELISE MATTIACCI |
| Respondent: | THE TRUSTEE FOR METRICON HOMES UNIT TRUST T/A METRICON HOMES PTY LTD |
| File Number: | MLG 2066 of 2016 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 23 February 2017 |
| Date of Last Submission: | 23 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 February 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
Counsel for the Respondent: | Mr Tallboys (Solicitor) |
| Solicitors for the Respondent: | Russell Kennedy Solicitors |
ORDERS
THE COURT ORDERS THAT:
The applicant’s application for extension of time in which to file the application of 23 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2066 of 2016
| ELISE MATTIACCI |
Applicant
And
| THE TRUSTEE FOR METRICON HOMES UNIT TRUST T/A METRICON HOMES PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court are proceedings brought by Elise Mattiacci (“the applicant”) against The Trustee for Metricon Homes Unit Trust T/A 'Metricon Homes Pty Ltd' (“the respondent”).
The applicant commenced these proceedings by application filed on
23 September 2016. The application was an application filed in the Fair Work Division of the Court.The application was supported by a form 2 where the applicant particularised the details of her employment with the respondent and set out the allegations of contraventions of the Fair Work Act 2009 (“the FW Act”) by the respondent along with the remedies that she sought.
In an affidavit filed 25 September 2016, the applicant deposed:
“1. I lodged a General Protections Application involving Dismissal under the Fair Work Act 2009 s.365 seeking outstanding commissions and compensation. The Application was lodged on 30 March 2016 by my representative “Unfair Dismissal Australia”. The matter was heard via a telephone conference call on 13 May 2016. The matter was not resolved.
2. A Certificate from the Fair Work Commission was issued on 31 May 2016.
3. I received incorrect advice from my representative who instructed me to lodge my claim at the Federal Circuit Court Small Claims List, which I filed on 7 June 2016, within the specified timeframe from Fair Work. As my representative was qualified in this field, I was guided by his advice and did not question the accuracy of this information.
4. This matter was listed for hearing in the Federal Circuit Court Small Claims List on 9 September 2016, however was dismissed by Judge Jones due to the case being in the incorrect jurisdiction.
5. I immediately sought legal advice over the telephone on
9 September 2016 regarding the dismissal ruling and it was confirmed that the advice initially received from my representative was incorrect. It was also outlined that legal representation for this matter would be excessive and not an appropriate option for me.
6. I was offered legal advice pro bono, however the earliest available appointment was on 22 September 2016. Upon receiving this advice, I promptly proceeded to file the correct Application.
7. I ask that the court considers and takes into account my inexperience when deciding on an extension in this matter.”
The applicant is 24 years of age and lives in Mernda.
The applicant says that she worked for the respondent from August 2015 until March 2016. The applicant says she worked in the position of new home advisor at the respondent’s Plumpton office. Subsequent to the termination of her employment, the applicant commenced proceedings in the Fair Work Commission. Accompanying the application filed in this Court is a certificate under section 368 of the FW Act which was dated 31 May 2016.
The certificate provided that:
“An application pursuant to s.365 of the Fair Work Act 2009
(the Act) was made by Ms Elise Mattiacci alleging she was dismissed by The Trustee for Metricon Homes Unit Trust T/A 'Metricon Homes Pty Ltd' in contravention of Part 3-1 of the Act.
The Fair Work Commission conducted a conference to deal with the dispute on 13 May 2016.
Pursuant to s.368 of the Act, the Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
IMPORTANT NOTE:
The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit Court of Australia for a civil remedy order, unless the court extends the time for making such an application. 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 the 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.”
On 20 October 2016 a response was filed on behalf of the respondent. The response details the position of the respondent and that the respondent opposed any extension of time as there was inter alia no acceptable explanation for the delay in filing this application.
The application now before the Court was not filed until 23 September 2016 and is over 100 days after the section 368 certificate was issued.
First Court date
At the first Court date on 9 November 2016 the applicant appeared in person and Ms Pallot appeared on behalf of the respondent. The following orders were made:
“1. The subpoena filed 29 October 2016 be set aside.
2. The respondent is to issue a subpoena to Unfair Dismissal Australia by no later than 11 November 2016.
3. The respondent file and serve an outline of submissions addressing the applicants application for an extension of time and an affidavit in support by no later than 5 December 2016.
4. The applicant file and serve any submissions in reply by 12 December 2016.
5. The parties notify the Court if they agree to the extension of time application being heard on the papers in Chambers by no later than 19 December 2016.
6. The extension of time application be listed to be heard in the Federal Circuit Court of Australia at Melbourne on 23 February 2017 at 10:00 am.
7. There be general liberty to apply for both parties.
8. Costs be reserved.”
Submissions
As provided for in the above mentioned orders the respondent filed submissions on 5 December 2016 which were:
“1.1 By application (the Second Court Application) dated 23 September 2016 commenced in this Court’s jurisdiction under the Fair Work Act 2009 (Cth) (FW Act), the Applicant alleges she was dismissed by the Respondent in contravention of a general protection in the FW Act1.
1.2 The Respondent submits that the Second Court Application is made out of time, and should be dismissed. To the extent that the Applicant seeks an extension of time pursuant to section 370 of the FW Act, the Respondent submits that the Court should refuse that extension.
2 Background
2.1 It is uncontested that the Applicant was employed by the Respondent from 10 August 2015 to 21 March 2016, and that her employment was terminated at the initiative of the Respondent on the last day of her employment. What is in dispute is whether that dismissal was in contravention of a general protection in the FW Act, as it appears is being alleged by the Applicant.
2.2 On or about 30 March 2016, Unfair Dismissals Australia Pty Ltd (Unfair Dismissals Australia) on behalf of the Applicant filed in the Fair Work Commission a General Protections Application involving Dismissal form (the FWC Application). The FWC Application was made within the strict time limits prescribed by section 366 of the FW Act.
2.3 The FWC Application was the subject of a Conference before Cirkovic C of the Fair Work Commission on 13 May 2016. On 31 May 2016, a certificate (the FWC Certificate) was issued pursuant to section 368 of the FW Act, certifying that the Commission was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
2.4 On or about 5 June 2016, Unfair Dismissals Australia filed with the Fair Work Commission a notice of representative ceasing to act form.
2.5 On 7 June 2016, the Applicant filed an application of the same date commenced in this Court’s jurisdiction under the FW Act regarding the Applicant’s termination (the First Court Application). In the First Court Application, the Applicant elected for the proceedings to be dealt with under the Court’s small claims procedures. The Applicant also filed a Small claim under the Fair Work Act 2009 form dated 7 June 2016 in which the Applicant complained, in effect, that she had been unfairly dismissed and was seeking compensation.
2.6 On 9 September 2016, Judge Jones of this Court dismissed the First Court Application.
3 The Second Court Application is out of time
3.1 Pursuant to s.370 of the FW Act, a person is required to make any general protections court application within 14 days after a certificate under paragraph 368(3)(a) of the FW Act has been issued by the Fair Work Commission. An application must not be made after that 14-day period unless the Court, on application, allows a further period of time pursuant to the power conferred on it under s.370.
3.2 It follows that as the Second Court Application was made more than 14 days after the FWC Certificate was issued, then pursuant to s.370 of the FW Act the Court Second Application cannot proceed, and must be dismissed, unless the Court retrospectively allows the Applicant an extension of time.
3.3 The principles applicable to such an extension of time under s.370 of the FW Act were helpfully summarised by Judge Lucev in Chand v Soft Star Pty Ltd [2016] FCCA 121:
[13] There is no doubt that it is for the applicant to satisfy the Court that an extension of time is appropriate, and for that onus to be discharged in the context of a relatively short limitation period of 14 days fixed by the Parliament in s.370(a)(ii) of the FW Act: Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at [5] per White J (“Youth Council”).
[14] In each of Jimenea v Dynamic Supplies Pty Ltd [2013] FCCA 63 (“Jimenea”) and Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 (“Henshall”) (which are cited in Mr Chand’s submissions) reference is made to the principles or considerations relevant to the granting of an extension of time as outlined in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (“Brodie-Hanns”). In Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327 (“School Bus Contractors”) the Federal Magistrates Court found that the Brodie-Hanns principles were not binding upon the Federal Magistrates Court (and thus the Federal Circuit Court as its successor), but had been regularly applied, and do constitute a relevant criteria to be considered, and were therefore to be used as non-binding but guiding criteria on an application for an extension of time in which to file an application under the FW Act: School Bus Contractors at [37] per Lucev FM, followed in Owen v Cudeco Ltd [2013] FCCA 1827 at [7] per Judge Driver and Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [34] per Judge Lucev (“One Key Resources”), and referred to without disapproval in Youth Council at [5] per White J.
[15] In Brodie-Hanns the criteria for consideration are stated as follows:
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.
Brodie-Hanns at 299-300 per Marshall J.
3.4 The Respondent submits that the Court should adopt these principles.
4 No credible or reasonable explanation for the delay
4.1 In an affidavit dated 23 September 2016 filed in these proceedings, the Applicant gives evidence, at paragraph [3], to the effect that she received “incorrect” advice from Unfair Dismissals Australia to elect to have her First Court Application dealt with in this Court’s small claims list. It appears from the foregoing that the Applicant is relying on representative error to explain the Applicant’s delay in bringing the Second Court Application.
4.2 In this case, the paucity of the evidence led by the Applicant fails to persuasively demonstrate representative error on the part of Unfair Dismissals Australia. This is particularly so in circumstances where the representative had filed a notice of ceasing to act in the Fair Work Commission prior to the Applicant filing the First Court Application. There is also no logical reason why Unfair Dismissals Australia would, following the FWC Application, advise the Applicant to effectively make an unfair dismissal claim to this Court. Further, no evidence is being led by the Applicant from the representative in support of that error. The Respondent respectfully submits that the Court should adopt the cautious approach taken by Judge Lucev in McPaul v CPC Engineering Pty Ltd [2013] FMCA 71, at [29] to [31] in finding representative error as the cause, and a reasonable cause at that, for delay. It is submitted that the Court should find it is not satisfied that a representative error exists.
4.3 Moreover, the Applicant gives evidence that the First Court Application was dismissed because she elected for it to be dealt with in the small claims list. However, the Applicant fails to provide a credible explanation for why, if that is the case, the Applicant did not seek to ask the Court that her claim be taken out of that list, and amended, instead of allowing the First Court Application to be dismissed and then starting anew with the Second Court Application.
4.4 It is also submitted that the Applicant’s evidence about taking legal advice before filing the Second Court Application is inadequate, particularly in light of the prompt manner in which the Applicant has previously been able to file the FWC Application and later the First Court Application.
4.5 There is an obligation on an applicant in making and pursuing an extension of time application to make full and proper disclosure of all of the relevant circumstances: McPaul again, at [17]. In the present case, the Court should not be satisfied that a credible and reasonable explanation has been provided for the Applicant’s delay in making the Second Court Application presently before the Court.
4.6 Further, an extension of time should not be granted simply because the Applicant elected to pursue a bad claim, in the wrong forum, and upon discovering that claim was dismissed is now seeking to pursue an alternative claim that she considers may have better prospects of success.
5 Insufficient action was taken by the Applicant to contest the dismissal
5.1 The Respondent concedes that by filing the FWC Application, and later the First Court Application, the Applicant has taken steps to contest her dismissal prior to filing the Second Court Application. However, there is no evidence that the Applicant sought to pursue a contravention of the general protections in the FW Act following the FWC Certificate, or that she sought to convey to the Respondent that she would be pursuing any legal action following the dismissal of the First Court Application.
5.2 In the circumstances, the Respondent submits this consideration should weight against the granting of an extension of time.
6 There is no particular prejudice to the Respondent
6.1 The Respondent does not assert any particular detriment aside from the usual prejudice that will follow an extension of time being granted.
6.2 That being said, the absence of a specific prejudice to the Respondent does not favour an extension of time being granted.
7 The Second Court Application discloses no particular merit
7.1 As set out in its Response in this proceeding dated 25 October 2016, the Respondent denies that it has contravened the FW Act, and will lead evidence in support of that contention at an appropriate time if an extension of time is granted and this proceeding is ultimately heard.
7.2 However, in considering the merits of a particular case in which an extension of time is sought, Judge Lucev in McPaul observed at [41]:
It is not for the Court to determine the substantive application at this stage, although an extension of time would not be granted if the substantive application was not reasonably arguable. If, however, the prospects of success of a substantive application are plainly strong or plainly weak, that may be a relevant consideration having regard to the nature and strength of other factors.[64] It is not, however, the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significance prejudice suffered by the respondent, an extension of time should be granted.[65]
7.3 The Second Court Application appears to allege that the Applicant was dismissed in contravention of a general protection in the FW Act. It also asserts the exercise of workplace rights, and alleges that the Respondent took adverse action within the meaning of section 342 of the FW Act, when it dismissed the Applicant. However, the Second Court Application alleges no specific contravention of the general protections in Part 3-1 of the FW Act, and as such a reasonable cause of action against the Respondent is not made out.
7.4 In the circumstances, the Court should find that the Second Court Application does not reveal a prima facie case, and this consideration should weigh against the Applicant and an extension of time.
8 Fairness as between the Applicant and other persons in a like position
8.1 The Respondent submits that this factor is not relevant to the Applicant’s circumstances, and accordingly does not weigh in favour of the Applicant.
9 Conclusion
9.1 For the reasons foregoing, it will be respectfully submitted that in all of the circumstances this Court should be satisfied that it is appropriate to dismiss the Second Court Application, and that it should so order.”
The applicant filed submissions on 12 December 2016 which were:
“Orders Sought
1. The Applicant seeks an extension of time to file an application under Part 3-1 of the FairWorkAct 2009(Cth) (FW Act) in relation to the contravention of a general protection.
2. By reason of a Certificate issued by the Fair Work Commission (FWC) on 31 May 2016, the initiating application was to be filed by 14 June 2016. The Applicant met this timeframe but had acted on incorrect legal advice and filed the application as a Small Claim. Acting as a self represented litigant, the Applicant acted immediately to correct this error when it was brought to her attention by the court and she filed this application on 23 September 2016,
Application
3. The Applicant was employed by the Respondent from 10 August 2015 until her employment was terminated unlawfully on 21 March 2016.
4. On 21 March 2016, the Respondent terminated the Applicant's employment because the Applicant had made a complaint against her line manager for bullying. In this way, the Respondent took adverse action against the Applicant because she had exercised a workplace right, by making a complaint or inquiry in relation to her employment. This amounts to a direct contravention of s.340 of the FWAct.
5. For its part, the Respondent has submitted that the Applicant's employment was terminated due to poor performance. This is not the case. The Respondent did not raise any issues with the Applicant's performance, and the Applicant's employment was terminated only after she made a complaint of bullying against her line manager. In these circumstances, the presumption is that the Respondent terminated the Applicant’s employment for the prohibited reason. The onus rests on the Respondent to prove otherwise (s361 FW Act).
Background
6. The Applicant was initially represented by a firm named Unfair Dismissals Australia (UDA).
7. On 30 March 2016, UDA filed with the FWC a Form F8 - General Protections Application Involving Dismissal (FWC Application). This was within the 21 day timeframe required by the FW Act.
8. On 13 May 2016, the parties participated in a conference before Commissioner Cirkovic, without an agreement being reached.
9. On 20 May 2016, the Applicant's representative requested the Respondent's willingness to agree to Arbitration. No response was received to this request.
10. On 31 May 2016, the FWC issued a certificate which stated that it was satisfied that all reasonable attempts to resolve the dispute "have been, or are likely to be, unsuccessful".
11. At the conclusion of the FWC proceedings, the Applicant was no longer in a position to afford the advice of UDA. However, acting on a pro bono basis, UDA agreed to assist the Applicant to determine the process for progressing her general protections claim in the Federal Circuit Court. UDA advised the Applicant over the telephone, that she needed to file a Small Claims Application. At this time, the Applicant was unaware that this was incorrect advice.
12. On 7 June 2016, and acting on UDA's advice, the Applicant filed a Small Claims Application (Small Claims Application). This was well inside the 14 day timeframe required by the FW Act.
13. On 9 September 2016, the Small Claims Application was set down before Judge Jones. Judge Jones dismissed the Small Claims Application on the basis that it had been filed in the incorrect jurisdiction. Judge Jones did not dismiss the Small Claims Application on the basis of its merits.
14. On 9 September 2016, immediately following the hearing before Judge Jones, the Applicant sought advice from the Self-Represented Litigants service provided by Justice Connect. The first available appointment was 22 September 2016, which the Applicant attended and was assisted in preparing a revised Application and Affidavit requesting an extension of time (Current Application).
15. On 23 September 2016, the Applicant filed the Current Application. Contrary to section 4.4 of the Respondent's submissions, being prompt with applications is not a valid reason to dismiss claims of seeking legal advice. Evidence can be provided that outlines the Applicant took all reasonable attempts to submit the Current Application as early as possible. This evidence can be obtained if the Court request.
Fair Work and Small Claim Applications
16. At all times, the Applicant has asserted the she was dismissed by the Respondent in contravention of a general protection and has made all reasonable efforts to adhere to the required time limits for filing.
17. Both the FWC Application and the Small Claims Application were filed within time and assert that the Respondent took adverse action against the Applicant by terminating her employment after she raised concerns with the Respondent that she was being bullied by her manager. Both the FWC Application and the Small Claims Application outlined the adverse action taken by the Respondent which resulted in the breach of the general protections provisions of the FWAct. Both applications were supported by evidence.
18. The Applicant disputes claims made by the Respondent in section 5.1 of its Submissions, suggesting they had no prior knowledge of a claim being submitted. After the FWC Conference on 13 May 2016, the Applicant requested the option of Arbitration which the Respondent failed to agree to within the time given.
19. For its part, the Respondent was complacent in its response to the Small Claims Application. This was actioned by way of response which outlined the Respondent's claims regarding an unfair dismissal. Throughout its response, the Respondent made no mention of an incorrect application by the Applicant. This indicates that the Respondent also had no knowledge of an error in the Small Claims Application. The Respondent cannot now rely on this alleged error to deny the Applicant her right to pursue her claim.
Extension of Time
20. The Applicant acknowledges that the Current Application has been made out of time. The Applicant acknowledged this at the time of application by way of Affidavit, clearly explaining the reasoning behind the error in the Small Claims Application and gives 'an acceptable explanation'.
21 . Section 370 in the FW Act states that an extension of time can be approved if the Court sees fit. The Applicant has made all reasonable attempts to comply with the time limits set out in the FW Act and the claim has never altered, contrary to the Response's claim in section 4.6. In circumstances where she has relied on incorrect advice from UDA and is now self-represented, her application for an extension of time should be granted.
22. The principles applicable to an extension of time application are outlined in Brodie-Hanns v MTV Publishing Ltd (1995)67IR298. These are as follows:
22.1. 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.
22.1.1. The Applicant made all reasonable attempts to comply with timeframes of the FWAct as stated above. The evidence provided in the Applicant's Affidavit, dated 23 September 2016, states the delay is due to incorrect advice received from UDA. The Applicant rightly believed UDA to be a specialist in the field of unfair dismissals and general protections, and reasonably followed the advice she received that she should make an Application in the Small Claims Listing.
22.1.2. Part of the Applicant's claim is for unpaid wages of less than $20,000, which, as a stand-alone matter, can be dealt with as a Small Claim in the Fair Work Division. On this basis, and on the advice from UDA, the Applicant considered it was appropriate to make a Small Claims Application for unpaid wages in conjunction with an application for compensation.
22.1.3. There is no evidence to the contrary that this advice was not obtained. There is also no benefit to the Applicant in making a Small Claims Application instead of the Current Application due to the risk involved in exceeding the time-frame.
22.1.4. After the FWC issued a Certificate to the Applicant on 31 May 2016, the Applicant promptly submitted a Small Claims Application. A hearing was set and the Respondent submitted a response. It was not until the Small Claims Application was dismissed by Judge Jones on 9 September 2016 that the Applicant was put on notice that the Small Claims Application was in the incorrect jurisdiction. Due to her financial position, the Applicant was forced to continue with her matter as a self represented litigant. The Applicant made an appointment for pro bono assistance with Justice Connect and attended the earliest available appointment on 22 September 2016. The Applicant filed the Current Application the following day, 14 days after the hearing before Judge Jones. It would be disingenuous for the Respondent to now claim it was not aware that the Applicant would proceed with her claim.
22.2. 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.
22.2.1. The Applicant submits that the termination has been actively contested throughout the process. This has been clearly outlined in the FWC Application, the Small Claims Application and the Current Application. A time line has been provided with supporting dates of meetings and conversations between the Applicant and Respondent before and after the termination letter was issued on 21 March 2016.
22.2.2. Following the Applicant's termination, the Applicant requested Arbitration in the FWC. Promptly after the FWC issued a Certificate, the Applicant submitted her Small Claims Application, which demonstrated to the Respondent that she was going to continue to contest her dismissal. The Applicant filed the Current Application shortly after the Small Claim Application was dismissed.
22.2.3. Between the date that the Applicant was required to file the Current Application (14 June 2016) and the date that she actually filed it (23 September 2016), there was only a period of 14 days (9 September 2016 until 23 September 2016) where the Respondent was not on notice that the Applicant was contesting the termination. Moreover, at the hearing on 9 September 2016 Judge Jones told both parties that the Applicant would have to file the Current Application in the correct jurisdiction.
22.3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
22.3.1. There is no prejudice to the Respondent caused by the delay in this matter. The Respondent is a well-resourced, construction company that has been on notice since it dismissed the Applicant that she would contest the termination on the basis that it was a breach of the general protections provisions.
22.4. The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
22.4.1. While the absence of prejudice to the Respondent is an insufficient basis to grant an extension of time, the Court should also have regard to the position of the Applicant and objects of the FWAct in considering the extension of time.
22.4.2. The Applicant has been actively pursuing this matter since her employment was terminated. In circumstances where she has received incorrect legal advice, and has otherwise been very diligent in handling this matter on her own, it would be gravely prejudicial to now deny her application from proceeding on a matter of procedure.
22.4.3. If an extension of time was to be refused in this matter, it would undermine the objects of the FW Act. In this regard, section 3 of the FW Act states that its objects include:
"(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms".
22.5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
22.5.1. Sufficient evidence has been provided by the Applicant throughout each application regarding the merits of this claim.
22.5.2. In relation to the Current Application, the Applicant has filed a Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, which sets out the background to the termination of the Applicant's employment. In brief terms, the Applicant had achieved her sales target and was succeeding in her role with the Respondent. However, after the Applicant made a complaint that she was being bullied by her line manager, she was dismissed in a hasty process which sought to attribute her dismissal to previously unraised "performance issues".
22.5.3. The Respondent is still yet to provide any evidence to discharge the presumption that an adverse action was taken by way of dismissing the Applicant for exercising a workplace right.
22.6 Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
22.6.1. The Applicant submits that a granted extension of time does not create unfairness between the Applicant and other persons in the like position.
22.6.2. The Applicant submits that the Court should adopt the principles of Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
22.6.3. The Respondent has relied on the decision of Chand v Soft Star Pty Ltd [2016] FCCA 121. In this matter, the Court granted an extension of time after the applicant in that matter experienced difficulties with the e-lodgement facilities of the Federal Court and also due to error on the part of his representative. A similar approach should be taken in this matter, and the Applicant should be granted the extension of time sought rather than being defeated by "overtly technical reasons of form" (Chand v Soft Star Pty Ltd [2016] FCCA 121 at 57).
22.6.4. The Applicant references the approved extension of time in Lane v Kangaroo Island Dive & Adventures Pty Ltd [201O] FWA 3939 (unreported, O’Callaghan SDP, 25 May 2010). This is outlined as below in the General Protections Benchbook:
“The applicant made an initial application under section 773 within time. The application was made in error as section 773 was not available in that situation. The applicant did not become aware of the error until the conference. To the extent that this explained the subsequent delay in lodgement of the correct application, the Commission considered it represented an acceptable reason/or the delay”.
22.6.5. The Applicant submits a clear relation between both cases and believes the Court should also adopt these principles.”
Approach to application for extension of time
In Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 the Court at paragraphs [9]-[17] referred to the relevant provisions as follows:
“Relevant provisions
9.In Whitfield v One Key Resources Pty Ltd [2014] FCCA 553[1] Judge Lucev noted that the Fair Work Amendment Act 2013 (Cth)[2] effected amendments to the provisions of the Fair Work Act dealing with commencement of general protections court applications. His Honour noted the amendments did not change the substance of the relevant provisions.
[1] See para 4
[2] “FW Amendment Act”.
10.The relevant provisions pertaining to the application are contained in the Fair Work Act. Section 370 now provides:
“A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b)the general protections court application includes an application for an interim injunction.
Note 1:Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)),
a general protections court application cannot be made in relation to the dispute (see section 727 and 728).Note 2:For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
11.In Brodie-Hanns v MTV Publishing Ltd[3] (“Brodie-Hanns”), the Industrial Relations Court of Australia outlined the principles which relate to the exercise of the discretion. Whilst the list is not exhaustive nor binding, it is instructive of the relevant principles to be applied.[4] In Transport Workers’ Union v School Bus Contractors Pty Ltd
[2011] FMCA 28 Judge Lucev considered the provisions of the Fair Work Act in place at that time in relation to extension of time for bringing a general protections court application. In Clarke v Service to Youth Council Incorporated [2013] FCA 1018 the Federal Court having referred to the discussion of those provisions in the above mentioned decision described the reference to the criteria in Brodie-Hanns “…as a reference to the kinds of considerations which may be relevant.”[5]
12.Those principles include 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.
13.Action taken by the applicant to contest the termination, other than applying under the Fair Work 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.
14.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
15.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
16.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
17.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[3] (1995) 67 IR 298
[4] see Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28
[5] Clarke v Service to Youth Council Incorporated [2013] FCA 1018 at para 5 per White J
Consideration
Today the applicant appeared in person and the respondent was represented by Mr Tallboys. The material the parties relied on today including their written submissions and those made before the Court have been taken into account.[6] The prima facie position is that the time limit as provided for in the FW Act for the filing of applications such as that brought by the applicant should be observed.
[6] The applicant relied on the application filed 22 September 2016, her affidavit filed 25 September 2016, the submissions filed 12 December 2016 and the documents in exhibit A4. The respondent relied on the response filed 25 October 2016, the submissions filed 5 December 2016 and the documents in exhibit R3.
The granting of the extension is a discretionary exercise. The discretion is unfettered, but it is to be exercised judicially by identifying matters relevant to the discretion in the particular case and weighing those matters. The authority that I have referred to makes clear that matters relevant to the exercise of that discretion include whether there is an acceptable explanation for the delay, whether the applicant has acted without delay to contest the termination, whether there is unlikely to be prejudice to the respondent by the grant of any extension of time, the merits of the substantive application and any other matters that may be relevant.
A significant issue in this case is whether the applicant has provided an acceptable explanation for the period of delay. I have already referred to the evidence of the applicant that goes to that issue. As set out
in both the written submissions on behalf of the respondent and in
the submissions made today, the applicant’s evidence in that regard leaves a lot to be desired. The applicant’s evidence does demonstrate that she says that she made an earlier (the first) application (which was dismissed). However the best evidence of many of the issues raised by the applicant as to why there is an acceptable explanation for the delay ought to have come from the applicant’s former representative (who she alleges poorly advised her in relation to the first application) or the pro bono lawyer she deposes she spoke with after the first application was dismissed. However, there was no evidence given by either of them on behalf of the applicant. There is also the issue that the first application appeared to claim “unfair dismissal” not a contravention of the general protection provisions in Part 3-1 of the FW Act.
I have considered the cases referred to by the parties in submissions. However the decision of McPaul v CPC Engineering Pty Ltd [2013] FMCA 71 (“McPaul”) which followed Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28 and the principles referred to in Brodie-Hanns (op cit) considered the issue of representative error.
McPaul was referred to in Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 which also referred to and followed Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28.
The applicant’s claim that her former representative’s actions or inactions are to blame are not sufficient on the evidence to satisfy the Court there was representative error or such as to satisfy the Court there is an adequate explanation for the delay. I accept the respondent’s submissions on this issue.
The evidence simply does not establish a credible and reasonable explanation for the failure of the applicant to commence these proceedings within the prescribed limit for doing so.
I note the applicant says she has contested the decision. However I accept the respondent’s submissions on this issue and note there has been a period of delay, since the termination and as there has been an effluxion of time since that may give rise to some prejudice.
The respondent submitted that the applicant did not have an arguable case. At this stage it’s just not possible to form a view as to the success or otherwise of the substantive application.
Ultimately, mindful that parliament has prescribed a time limit and that the position is that the time limit should be observed, weighing all of the relevant factors in light of the parties evidence and submissions before the Court, I am just not satisfied there’s an adequate explanation for the whole of the period of the delay by the applicant in filing this application. Balancing the other factors which are neutral in support of the application, the conclusion that I arrive at is that the application for extension of time sought by the applicant should be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 23 February 2017
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