Milas v GM Holden Limited
[2015] FCCA 1311
•14 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILAS v GM HOLDEN LTD | [2015] FCCA 1311 |
| 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 |
| 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 |
| Applicant: | MARA MILAS |
| Respondent: | GM HOLDEN LTD |
| File Number: | MLG 477 of 2015 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 14 May 2015 |
| Date of Last Submission: | 14 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sutton |
| Solicitors for the Applicant: | Le Brun Glezakos Lawyers |
| In house Counsel for the Respondent: | Ms Anderson |
ORDERS
THE COURT ORDERS THAT:
The applicant’s application for extension of time in which to file the application is dismissed.
The respondent file and serve any application for costs with any evidence and submissions within 7 days.
The applicant file and serve any response thereto along with any evidence and submissions 7 days thereafter.
The respondent have 2 days after that to file and serve anything in reply.
AND THE COURT NOTES:
The parties shall provide in word format to the Associate to Judge O’Sullivan at associate.judgeo’[email protected] copies of all electronically filed documents.
Any application for costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 477 of 2015
| MARA MILAS |
Applicant
And
| GM HOLDEN LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today, 14 May 2015 are proceedings brought by
Mara Milas (“the applicant”) against GM Holden Limited (“the respondent”).
The applicant commenced these proceedings by application filed on
10 March 2015. The application was an application filed in the Fair Work Division of the Court. The application was given today as a first court date. The application sought final orders as particularised in the form 2. The applicant also sought an interim orders as set out in the application filed on 10 March 2015. The particular interim order sought was:“The applicant seeks leave of this honourable Court to file the originating application and form 2 out of time.”
The application was supported by a form 2 where the applicant particularised the details of her employment with the respondent.
The applicant set out the allegations of contraventions of the Fair
Work Act 2009 (“the FW Act”) by the respondent. The remedies that were sought were set out in the form 2 that was filed on 10 March 2015.Also filed on behalf of the applicant on 10 March 2015 was what purported to be a statement of claim and an affidavit from the applicant sworn 9 February 2015. The affidavit was on its face filed in support
of the application for leave to file the application out of time.
On 2 April 2015 a response was filed on behalf of the respondent.
The response details the position of the respondent in relation to the applicant’s interlocutory application at paragraphs [A] – [G] and substantive application at paragraphs [1] through to [44]. In relation to the former, the respondent opposed any extension of time as there was inter alia no acceptable explanation of the delay.
Today Mr Sutton has appeared on behalf of the applicant. Ms Anderson has appeared on behalf of the respondent. In addition to the procedural background I have set out it is also necessary to note the following. The applicant is around 43 years of age and lives in Werribee.
The applicant says that she worked for the respondent from March 2006 until 4 December 2014 in Port Melbourne. The applicant says she worked as a vehicle builder/forklift driver. 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 6 January 2015. The certificate provided that:
“An application pursuant to s.365 of the Fair Work Act 2009
(the Act) was made by Ms Mara Milas alleging she was dismissed by G.M. Holden Ltd in contravention of Part 3-1 of the Act.
The Fair Work Commission conducted a conference to deal with the dispute on 6 January 2015.
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.”
The application was not filed until 10 March 2015 and is 49 days late.
Today Mr Sutton has made submissions in support of the interlocutory application. Mr Sutton relied on the application, the form 2 and
the affidavit. Mr Sutton has averted to his client having been terminated in December 2014 for reason of redundancy. Mr Sutton referred to the subsequent application pursued by his client in
the Fair Work Commission. Mr Sutton referred to the conciliation conference conducted before the Fair Work Commission and
the certificate, the details of which I have already referred to above.
Mr Sutton went on to submit by reference to his client’s affidavit, that it was his client’s position that she had tried to get advice. It was submitted the applicant had made attempts to contact solicitors. It was submitted the applicant’s solicitors had difficulty in confirming instructions. It was submitted (and there was no evidence of this) that the applicant’s mental health and that she had computer problems also caused a delay. It was submitted that so far as the applicant could see, there was an absence of evidence of any prejudice to the respondent if the Court granted the extension of time sought.
Ms Anderson, who appeared on behalf of the respondent, sought to rely on an outline of submissions which was marked as exhibit R1.
The submissions were:
“1.The Respondent objects to the Applicant’s application for leave to file Originating Application and Form 2 out of time pursuant to s 370 of the Fair Work Act 2009 (Cth) (“FW Act”).
2.An application pursuant to s 365 of the FW Act was made by the Applicant on 17 December 2014 alleging she was dismissed by the Respondent in contravention of Part 3-1 of the FW Act.
3.On 6 January 2015, Commissioner Johns on behalf of the Fair Work Commission conducted a conference to deal with the dispute. The Conference was unsuccessful at resolving the dispute between the parties.
4.A certificate under s 368 of the FW Act was issued to the Applicant on 6 January 2015, a copy of which is attached to the Applicant’s application.
5.Pursuant to s 370(a)(ii) of the FW Act, the Applicant was required to make her general protections court application in relation to this dispute within 14 days of the date the certificate was issued, ie by 20 January 2015.
6.The Applicant failed to do so and only lodged her application to the Federal Circuit Court of Australia (“FCCA”) on 10 March 2015 which was 49 days late.
7.The principles relevant to whether an extension of time should be allowed are those discussed in Brodie-Haans
v MTV Publishing Ltd (1995) 67 IR 298 (“Brodie-Haans”), and recently cited in Abela v Telstra Corporation Ltd [2012] FMCA 17. The principles are (Brodie-Haans at pages 299-300):“a.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.
b.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.
c.3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
d.4. The mere absence of prejudice to the respondent
is an insufficient basis to grant an extension of time.
e.5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
f.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.”
8.Brodie-Haans is referred to in Note 2 of s 370 of the FW Act as setting down principles relating to the exercise of the court’s discretion under a similarly worded provision of the Industrial Relations Act 1988.
9.These principles are authoritative and regularly applied by the Court (and indeed by the Fair Work Commission), though not binding on it.
10.The Respondent submits that the first, second, third and fifth considerations discussed in Brodie-Haans are relevant in this matter.
11.Recent decisions in the Federal Circuit Court of Australia on extension of time applications include the following cases:
Owen v Cudeco Ltd [2013] FCCA 1827
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553
Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490
12. The Respondent point out the following:
a)The Respondent contends that there is no acceptable explanation of the delay which makes it equitable for the FCCA to grant an extension of time in this matter. In this regard the Respondent notes:
i. In paragraph 13 of the Applicant’s affidavit, the Applicant confirms that on 6 January 2015 “the Commissioner advised me that I had 14 days to lodge and Application to the Federal Circuit Court for a civil remedy order”. The 14 day period was also made clear to the Applicant on the certificate itself. In paragraph 3 of her affidavit, the Applicant confirms that the certificate was issued to her on 6 January 2015;
ii. In paragraph 15 of the Applicant’s affidavit, the Applicant confirms that she contacted her current lawyers (Le Brun Glezakos Lawyers) on 12 January 2015 – this was well before the 14 day time period was due to lapse;
iii. In paragraphs 18 – 20 of the Applicant’s affidavit, the Applicant confirms that she had further contact with Le Brun Glezakos Lawyers on 14, 15, 16, 19 and 20 January 2015 – in other words, she had contact with these lawyers on 6 occasions in the 14 day time period leading up to and including 20 January 2015. Notwithstanding this extensive contact, and notwithstanding the Applicant and her lawyers being aware of the relevant 14 day period, no application was lodged within this period but only 49 days thereafter;
iv. The affidavit, the application and Form 2 were signed on different dates prior to the application being lodged with the FCCA on 10 March 2015 (in some instances, well prior to the lodgement). Specifically:
·The Applicant signed her affidavit on 9 February 2015 – the affidavit therefore provides no explanation whatsoever for the further delay from 9 February 2015 to 10 March 2015;
·The Applicant’s lawyers signed the application on 6 March 2015; and
·The Applicant signed Form 2 on 6 March 2015.
b)The Respondent contends that the Applicant did not contest her redundancy at the time her employment was terminated but accepted the redundancy package which was paid to her. The Respondent is engaged in a significant redundancy exercise across its business which will result in the closure of its manufacturing operations. Other employees were made redundant at the same time as the Applicant and all were paid a redundancy package in accordance with the provisions of the GM Holden Enterprise Agreement 2014 (“2014 EBA”). Furthermore, the Respondent contends that the Applicant did not take any further action to contest her redundancy after the conciliation on 6 January 2015 other than seek legal assistance which she obtained during the relevant 14 day time period but yet still failed to lodge her application with the FCCA until 49 days thereafter. The Applicant therefore failed to put the Respondent on notice that its decision to make the Applicant redundant was in active dispute until her application was lodged with the FCCA on 10 March 2015 (some 49 days after the relevant 14 day period had expired).
c)The Respondent will be prejudiced if the Applicant’s application for an extension of time is granted.
The Respondent has an interest in the finality of litigation.
d)The Respondent submits that the Applicant’s dismissal was not in breach of Part 3-1 of the FW Act.
The Respondent contends that the Applicant’s application has no reasonable prospects of success – the merits of this matter are manifestly against the Applicant. In this regard, the Respondent refers to paragraphs 1 – 16 set out in its Response. In particular, the Respondent confirms that while it dismissed the Applicant for reasons of genuine redundancy, it did not dismiss the Applicant because she:
· had a workplace right; or
· had, or had not, exercised a workplace right; or
· proposed, or proposed not to, or had at any time proposed or proposed not to, exercise a workplace right.
Furthermore, the Respondent did not dismiss the Applicant to prevent her from exercising a workplace right. In addition, the Respondent did not take adverse action against the Applicant because of her gender.
13.In all the circumstances the Respondent seeks for the Applicant’s application to be dismissed.”
Ms Anderson supplemented those written submissions, referring to the decisions cited above.
Ms Anderson’s submissions by reference to the aforementioned cases noted this was a very different case. It was submitted that, insofar as the decisions in Owen (supra) and Whitfield (supra) dealt with cases where the Court was being asked to extend time for applications filed out of time, in Owen (supra) the applicant in that case was only one day late, and still the application was refused. It was submitted in Whitfield (supra) the applicant was 33 days late, and the application for leave was refused. It was submitted it was clear on the applicant’s own affidavit she had seen lawyers on, six occasions in the period leading up to the date for the expiry of the time for the filing of the application. It was submitted the Court should not be persuaded that it should extend time. In those circumstances Ms Anderson asked the Court to refuse to exercise its discretion to extend time for the filing of the application.
I note 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
As has been noted, in the course of submissions made on behalf of the parties in relation to an application such as this 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.
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 dismissal, 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 from the bar table today on its behalf, the applicant’s evidence in that regard leaves a lot to be desired.
The applicant’s evidence does demonstrate that she was taking advice and was, as she herself deposes to taking advice from, relevantly for present purposes, the very solicitors who subsequently filed the application, 49 days late.
The applicant’s evidence didn’t support the submissions that were sought to be made on her behalf today by Mr Sutton. There’s certainly an absence of evidence that her solicitors were finding it difficult to get instructions. There’s also no evidence from a medical practitioner that the applicant was suffering a medical condition. There is no evidence from the applicant’s solicitors. All the Court is left with is the bare assertion that the applicant says there were issues.
The evidence doesn’t establish that the applicant didn’t know that she needed to commence proceedings within the time limit. The applicant could hardly say otherwise, given the plain words on the face of the certificate. The evidence simply does not establish a reasonable explanation for the failure of the applicant to commence proceedings within the prescribed limit for doing so.
There has been no explanation for why the very affidavit that was relied on in support of the application to extend time was sworn on
9 February 2015 and yet wasn’t filed until 10 March 2015.
I note the applicant says she has contested the decision. Whilst there’s no evidence as such from the respondent, there has been a period of delay, since the dismissal 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 I’m just not satisfied there’s an adequate explanation for the whole of the period of the delay by the applicant in filing the application. Balancing the other factors which are neutral in support of the application made by the applicant, 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
Associate:
Date: 20 May 2015
10
6
2