McGarva v Enghouse Australia Pty Ltd
[2013] FCCA 1565
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGARVA v ENGHOUSE AUSTRALIA PTY LTD | [2013] FCCA 1565 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time for the commencement of proceedings under the Fair Work Act 2009 (Cth) – relevance of the applicant’s dealings with the court registry. |
| Legislation: Fair Work Act 2009 (Cth), ss.351, 352, 369, 371 |
| Applicant: | ELLIOT ALEXANDER MCGARVA |
| Respondent: | ENGHOUSE AUSTRALIA PTY LTD |
| File Number: | SYG 2108 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr D Mendelssohn electAssociates |
INTERLOCUTORY ORDERS
Pursuant to s.371(2) of the Fair Work Act 2009 (Cth), time be extended for the filing of the application up to and including 9 September 2013.
The matter is referred to the District Registrar to arrange mediation pursuant to s.34 of the Federal Circuit Court Act 1999 (Cth) and Division 45.4A of the Federal Circuit Court Rules 2001 (Cth) to be conducted by a Registrar of the Court.
The applicant is to file and serve on the respondent an affidavit in support of his application, in particular detailing his health circumstances, no later than 15 November 2013.
Parties have liberty to apply for further orders or directions on five days’ notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2108 of 2013
| ELLIOT ALEXANDER MCGARVA |
Applicant
And
| ENGHOUSE AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application under the Fair Work Act 2009 (Cth) (Fair Work Act) purportedly filed on 9 September 2013, seeking relief on account of the applicant’s (Mr McGarva) dismissal from his employment. The application is supported by a Form 2 filed with it which asserts disability discrimination and breach of contract. A detailed response was filed on 17 September 2013 by the respondent (Enghouse). Among other things, that response asserts correctly that the application was filed 10 days after the 14 day limitation period following the certificate issued by the Fair Work Commission pursuant to the s.369 of the Fair Work Act. To be within time, the application needed to be filed by 29 August 2013 and it was not filed until 9 September 2013.
The matter came before me for first court date directions on 1 October 2013, at which time I listed the matter for hearing today on the issue of whether the time for filing the application should be extended. I gave Mr McGarva the opportunity to file any affidavit evidence relating to the extension of time request until 5.00pm yesterday. At that time I indicated to Mr McGarva that the issues that I would be considering would be, in particular, the explanation for the delay and the prospects of success of the proceedings.
The parties have both filed affidavits. Mr McGarva relies upon his own affidavit filed on 3 October 2013 and the affidavit of Lydia Frances Thomas made on 2 October 2013. Enghouse relies upon the affidavit of Patrick Gallagher made on 2 October 2013. None of the deponents were required for cross-examination. I accept from the affidavits of Mr McGarva and Ms Thomas that Mr McGarva, with the assistance of Ms Thomas, made a reasonable attempt to commence the proceedings on 29 August 2013.
It appears that on that day Ms Thomas, at the request of Mr McGarva, faxed through to the Federal Circuit Court registry in Sydney 10 pages of documents which match the Form 2 and attached documents comprising 10 pages. It appears that Mr McGarva and Ms Thomas neglected to include the prescribed form of application. A registry officer left a message for Mr McGarva on his nominated mobile telephone number requesting him to call her, but when he rang back she was not available.
It took some days and a personal attendance at the registry for the problem to be sorted out. Ultimately, the required form of application was completed and filed on 9 September 2013 with a further copy of the Form 2. The delay is not entirely the fault of Mr McGarva. He was unfamiliar with the required court documents and the registry officer dealing with the receipt of the documents did not explain the problem in her telephone message and was unavailable for several days thereafter.
It also appears that when Mr McGarva ultimately attended the registry, the registry officer was confused about which proceeding was Mr McGarva’s. I accept that Mr McGarva has advanced a satisfactory explanation for the delay in commencing the proceedings.
The other issue of concern to me is the prospect of success of the proceedings. It is put against Mr McGarva by Enghouse that the proceedings are hopeless. The known facts are that Mr McGarva ceased work because of a diagnosis of stomach cancer and liver cancer which was obviously a very serious condition. He was absent from work for over 10 months. He initially took sick leave. When that leave ran out, he was left on leave without pay. It appears that in mid 2013 Mr McGarva approached Enghouse because he was feeling better, although not then in remission, and wanted to explore with his employer, who had kept his job open, the prospect of returning to work at some time on some basis.
Enghouse wrote to Mr McGarva on 3 July 2013 to advise that a return to work was not possible. Relevantly, the letter states that over the period that Mr McGarva had been absent from work there had been a lot of change in the business and the market, and as a result Enghouse had had no alternative but to terminate his employment effective from 5 July 2013. The letter expresses the view this action was taken lawfully under the Fair Work Act and the Regulations made under it. It is probable that Enghouse had regard to s.352 of the Fair Work Act and regulation 3.01 made under it.
If Mr McGarva had alleged that he was dismissed unlawfully simply because of his illness and the leave he had taken, the short answer to such a claim would have been that he had been absent for a period in excess of 10 months and the employer was entitled to dismiss him after three months. That, however, is not a complete answer to the claim of disability discrimination advanced pursuant to s.351 of the Fair Work Act. The Court would need to consider whether Mr McGarva was treated less favourably than a comparable employee without his disability (assuming it is a disability) would have been treated or whether Mr McGarva was subjected to a condition or requirement which he could not meet and which a person without his disability could have met in the same, or similar, circumstances.
Mr McGarva also raises a contract claim which would depend upon consideration of the terms of his employment. It is difficult to form any clear view of the prospects of success in that proceeding in the absence of evidence filed by him in support of it.
The evidence that he has filed is limited to explaining the circumstances for his delay in coming to court. However, on a limited basis of the documents before the court, which include the affidavit of Mr Gallagher for Enghouse, I am not persuaded that the claim of disability discrimination is doomed to fail.
It is, at least potentially arguable that Enghouse, before terminating Mr McGarva, should have considered the possibility of redeployment within the organisation, including redeployment on a part-time basis. That is something that could be explored at a trial.
I will order that, pursuant to s.371(2) of the Fair Work Act, time be extended for the filing of the application up to and including 9 September 2013.
The matter is referred to the District Registrar to arrange mediation pursuant to s.34 of the Federal Circuit Court Act 1999 (Cth) and Division 45.4A of the Federal Circuit Court Rules 2001 (Cth) to be conducted by a Registrar of the Court.
The applicant is to file and serve on the respondent an affidavit in support of his application, in particular detailing his health circumstances, no later than 15 November 2013.
Parties have liberty to apply for further orders or directions on five days’ notice.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 October 2013
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