Morrison v ISS Australia T/A ISS Facility Services (No.2)
[2019] FCCA 1628
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORRISON v ISS AUSTRALIA T/A ISS FACILITY SERVICES (No.2) | [2019] FCCA 1628 |
| Catchwords: INDUSTRIAL LAW – Application for an extension of time after substantive application heard – principles to be considered – fairness to applicant in light of alleged error on part of solicitor – both parties had benefit of full hearing on substantive application – no evidence of prejudice – extension of time granted. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 370 |
| Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Morrison v ISS Australia T/A ISS Facility Services Pty Ltd [2019] FCCA 1183 Ryan v J-Corp Pty Ltd [2018] FCCA 2403 |
| Applicant: | DAMIEN ANDREW MORRISON |
| Respondent: | ISS AUSTRALIA T/A ISS FACILITY SERVICES |
| File Number: | PEG 38 of 2014 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 June 2019 |
| Date of Last Submission: | 12 June 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 12 June 2019 |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms C Wright (In-house) |
ORDERS (as made 12 June 2019)
Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the Fair Work Act 2009 (Cth) on 28 January 2014 be extended to and include 12 February 2014.
The applicant file and serve any affidavits on the issues of compensation and penalty by 9 July 2019.
The respondent file and serve any affidavit in response by 6 August 2019.
The applicant file and serve an outline of submissions on the issues of compensation and penalty by 27 August 2019.
The respondent file and serve an outline of submissions in response by 17 September 2019.
The matter be listed for hearing on compensation and penalty on a date to be fixed.
Formal reasons for judgment be delivered from Chambers at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 38 of 2014
| DAMIEN ANDREW MORRISON |
Applicant
And
| ISS AUSTRALIA T/A ISS FACILITY SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 June 2019, this application for an extension of time was heard by this Court. Having heard read the materials and noting that the parties had nothing further to add from what was advanced in written submissions to the Court, the Court ordered that:
1. Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s.368 of the Fair Work Act 2009 (Cth) on 28 January 2014 be extended to and include 12 February 2014.
2.The applicant file and serve any affidavits on the issues of compensation and penalty by 9 July 2019.
3. The respondent file and serve any affidavit in response by 6 August 2019.
4. The applicant file and serve an outline of submissions on the issues of compensation and penalty by 27 August 2019.
5. The respondent file and serve an outline of submissions in response by 17 September 2019.
6. The matter be listed for hearing on compensation and penalty on a date to be fixed.
7. Formal reasons for judgment be delivered from Chambers at a later date.
What follows are the formal written Reasons for Judgment referred to in order 7 of the orders made by this Court on 12 June 2019.
Background
On 10 May 2019, His Honour Judge Lucev delivered reasons for judgment in Morrison v ISS Australia T/A ISS Facility Services Pty Ltd [2019] FCCA 1183 (“Morrison No.1”).
His Honour’s reasons followed a three-day substantive hearing on 2, 3 and 5 February 2015 in relation to an application filed by the applicant, Mr Morrison, on 12 February 2014.
Regrettably, in the course of preparing his reasons, Judge Lucev identified that the application filed on 12 February 2014 was lodged one day outside the statutory time limit prescribed by s.370(a)(ii) of the Fair Work Act 2009 (Cth) (“FW Act”).
The Court refers to [5]-[9] of Morrison No.1, which provides:
5. The Application was filed on 12 February 2014. The date the Application was signed by Mr Morrison’s lawyer is 11 February 2014. Section 370 of the FW Act requires an Application to be made within 14 days after the day the FWC Certificate was issued. Following what was said as to the meaning of the phrase “within 14 days after” in Moon v JLG Industries (Australia) [2011] FMCA 343; (2011) 210 IR 72; (2011) 249 FLR 348 at [26] per Lucev FM, the Application was, therefore, to be made by 11 February 2014. The Application was filed one day late, and without an order pursuant to s.370(a)(ii) of the FW Act, the Application is incompetent.
6. No party acknowledged or addressed this issue in the course of the proceedings or at the hearing. It was only late in the preparation of these Reasons for Judgment that the Court identified the issue; therefore, the Court has not been addressed on the issue by either party. This is unfortunate, given that the matter has been substantively heard over three days and the parties have adduced extensive evidence.
7. Section 370(a)(ii) of the FW Act provides that a general protections application which is not made within 14 days after the day the FWC Certificate is issued may be made “within such period as the court allows on an application made during or after those 14 days”.
8. As will be obvious, there is no such application in these proceedings, and given the use of the words “must not” is s.370 of the FW Act it will be necessary for an application to extend time to be made, as otherwise the Application cannot be dealt with. That is because the words “must not” impose a personal prohibition on a person making a general protections application out of time, unless they have made an application to bring the general protections application outside of the 14 day time limit, and the Court has allowed that application: FW Act, s.370(a)(ii). As to the meaning of the words “must not make” see Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 219 IR 208; (2012) 259 FLR 447; (2012) 64 AILR 101-563 at [22]-[43] per Lucev FM (and cases there cited).
9. In the circumstances, there will be an order that Mr Morrison file and serve any application to extend time under s.370(a)(ii) of the FW Act, supported by any necessary affidavits, and accompanied by an outline of submissions, by 24 May 2019, and that ISS file and serve any affidavits in opposition to the application for an extension of time, and an outline of submissions by 7 June 2019, and that the application for an extension of time be listed for hearing at 2.00pm on 12 June 2019, and the proceedings are otherwise adjourned to that time and date. In all the circumstances, the Court considers it appropriate to deal with the substance of the Application on a strictly provisional basis; that is, subject to the outcome of any extension of time application.
(Emphasis added)
As is clear from the above, Judge Lucev’s substantive findings in Morrison No.1 are contingent upon the Court now granting an extension of time as, at the time His Honour heard the matter, there was no valid application before the Court.
Extension of Time
Pursuant to Judge Lucev’s orders, on 14 May 2019 the applicant filed an application in a case seeking an extension of time within which to bring the substantive application.
Mr Morrison affirmed an affidavit dated 14 May 2019. That affidavit reads as follows:
1. I am the applicant in these proceedings and swear this affidavit in support of my application in a case for an extension of time to file the substantive application under the Fairwork Act.
2. On or about 4th February 2014 I instructed Mr Gavin MacLean of MacLean Legal to commence a Fairwork application in the Federal Circuit Court Perth registry against ISS Australia for their adverse action against me in contravention of a general protection and therefore breaching the Fairwork Act.
3. On the 6th of February I received an email from Mr MacLean requesting further details from the Fairwork application and supporting documents. I sent them to him immediately and transferred $1500 as retainer to the firms trust account.
4. I did not have any knowledge of how to proceed with this application in the Federal Circuit Court. I did not know there was a requirement to file this document within 14 days after the Fairwork Commission Certificate.
5. I engaged a legal firm that seemed to be competent and experienced to conduct this matter for me and I was confident would ensure that all the necessary requirements for filing my application at the court would be met.
6. I am seeking an extension of time to file this substantive matter. I relied on my solicitors and therefore I took all possible actions to ensure my matter would be filed with the court within the required time by engaging MacLean Legal to act for me in this matter. I was unaware of a time limit for filing the application until the court orders made on Friday 10th May 2019.
(Without alteration)
The respondent opposes the order for an extension of time and filed written submissions on 5 June 2019. Those submissions can be summarised as follows:
a)there is no credible explanation for the delay;
b)ignorance of the timeframe is not an exceptional circumstance, and while this is not the test for an extension of time, the Fair Work Certificate clearly stated the application to this Court had to be lodged within 14 days;
c)the applicant has provided no explanation regarding his delay of seven days in making initial contact with the solicitors, nor any evidence regarding the nature of this contact or instructions provided;
d)the applicant asserts he responded to email enquiries by his solicitor on 6 February 2014 and transferred funds to his representative’s trust account “immediately”, but has not adduced any evidence to support these assertions. Such evidence ought to reasonably be available to the applicant and has not been provided. Hence, limited weight or a negative inference should be drawn;
e)the applicant’s evidence demonstrates that the applicant contributed to the delay and was not blameless in the application being filed outside of the 14-day time limit; and
f)as the substantive matter has already been heard, the “Brodie-Hanns” principles are of limited relevance.
Consideration
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. Indeed, Justice Marshall acknowledged that the discretion was “unconfined”.
The respondent submits that the factors outlined above are of “limited relevance” and that the only relevant factor in this matter is “delay”. The respondent says this is so because the substantive matter has already been heard.
The Court disagrees.
Notwithstanding that the matter has been substantively heard, this does not render the Brodie-Hanns principles irrelevant. While some factors will be awarded more or less weight than others, each of the factors are nonetheless relevant to the Court’s discretion.
Length and Explanation for the delay
While Brodie-Hanns does not explicitly refer to the length of the delay as a factor to be considered, the Court finds this factor to be relevant. It provides context to inform the wider consideration of whether it is fair to exercise the discretion.
The delay here is one day. This is not, by any standard, a significant delay.
The application was required to be filed by 11 February 2014. It was filed on 12 February 2014. As Judge Lucev noted, the substantive application was signed and dated by the applicant’s solicitor as “11 February 2014”.
The Court assumes that the substantive application was ready for filing “within 14 days” of the Fair Work Certificate being issued and in compliance with s.370(a)(ii) of the FW Act. However, the applicant’s solicitor did not file the application until the following day.
A limitation provision is the general rule; an extension provision is the exception to it: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
While limitation periods ought not to be treated lightly, the delay here is very short. This weighs in favour of the grant of an extension of time.
As to the explanation provided by the applicant, the Court accepts that ignorance of the law, or in this case the statutory time limit, is no excuse. In some respect, this weighs against Mr Morrison being granted an extension of time. However, the Court also notes that Mr Morrison sought to address his lack of legal knowledge by hiring a competent legal representative. He assumed, as he was entitled to do, that his solicitor would do “all things necessary” in order to lodge the application.
The principle that an affected person should not be disadvantaged by the error or oversight of their representative is well recognised in workplace relations law: Transport Workers’ Union of Australia v School Bus Contractors Pty Ltd [2011] FMCA 28 at [57]-[66].
Whether alleged representative error is a sufficient or adequate explanation is a matter to be determined on the facts, as recently emphasised by this Court in Ryan v J-Corp Pty Ltd [2018] FCCA 2403.
Here, the Court finds that the applicant’s explanation as to his solicitor’s conduct and his assumption that the right thing would be done is reasonable.
Alleged representative error weighs heavily in favour of granting the extension of time.
Prejudice
The actual delay is only one day.
Both parties had the benefit of a three-day hearing that canvassed extensive evidence.
Had an application to extend time been made at the relevant time (ie, prior to the substantive hearing in 2015) the extension would inevitably have been granted. The evidence before the Court was well and truly sufficient and the merits of the substantive application generally evidenced an arguable case (see below).
The Court cannot see any prejudice to the respondent if the extension of one day is granted now. This is particularly so when the substantive matter has been heard and the respondent itself proceeded on the basis that the application as filed was sound.
Merits
The Court need not consider the merits of this matter in detail. It is clear, based upon Morrison No.1, that there was merit in the substantive application when filed.
The Court has examined the materials filed in 2014 and is satisfied that at the time when the extension application should have been made, there was a reasonably arguable case. Indeed, at the time, the applicant had a reasonable prospect of succeeding. He ultimately did succeed.
The strong merits of the application weigh in favour of the applicant being granted a one-day extension of time, even at this very late stage and post-hearing.
Fairness
Finally, the Court must consider “fairness” as between the applicant and the respondent, as well the public interest generally: CFMEU & Anor v Form 700 Pty Ltd & Ors [2017] FCCA 136 at [31], Judge O’Sullivan.
Here:
a)not granting the extension of time would have the effect of depriving the applicant of his successful claim;
b)a reasonable explanation for the delay is seen in the applicant’s affidavit evidence in which he alleges that that his solicitor did not do what he had expected him to do; and
c)there is no prejudice to the respondent if a one-day extension is granted now, particularly as the matter proceeded to a three-day hearing without any objection from the respondent.
The Court is also mindful of the need to protect the public interest. The Court (and hence the public) expended time, resources and costs to hear the substantive matter. In this regard, the Court notes Judge Lucev’ finding in Morrison No.1 as to the extensive evidence canvased during the course of a three-day hearing.
Further, the respondent has been found to have breached the FW Act. It should be held accountable for the breach in question so as to better educate the public generally and deter any possible further breaches of the FW Act.
In these circumstances, fairness also mandates that the extension of time be granted.
Conclusion
Having weighed each of the matters canvassed above, the Court has formed the view that the circumstances of this case warrant the exercise of the discretion under s.370(a)(ii) of the FW Act to extend the time for the applicant to file his application to the date of actual filing – that is, 12 February 2014.
Given that the respondent has been found to have breached s.340 of the FW Act, the next step is to determine compensation and penalty.
The imposition of any pecuniary penalty and the awarding of compensation should be determined at a further hearing.
In the circumstances, the Court proposes to make the declaration the applicant seeks upon a determination being made about compensation and penalty.
There will be a declaration along the lines that the respondent contravened s.340 of the FW Act in taking adverse action against the applicant for having exercised a workplace right pursuant to s.341(1)(c)(ii) of the FW Act.
It was for the above reasons that the Court made the orders made on 12 June 2019.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 13 June 2019
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