Morshed v Barrenjoey Services Pty Limited
[2023] FedCFamC2G 318
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Morshed v Barrenjoey Services Pty Limited [2023] FedCFamC2G 318
File number(s): SYG 1527 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 28 April 2023 Catchwords: FAIR WORK – PRACTICE & PROCEDURE – General protections claim - Extension of time application Legislation: Fair Work Act 2009 (Cth) s 370(a)(ii) Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clark v Ringwood Private Hospital (1997) 74 IR 413
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1
Ferrus v Qantas Airways Ltd (2006) 155 IR 88
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Molony v ATM Logistics Pty Ltd [2018] FCA 640
Phillips v Australian Girls Choir [2001] FMCA 109
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 3 April 2023 Date of hearing: On the papers Place: Parramatta Counsel for the Applicant: Mr Pen Solicitor for the Applicant: Worklawyers Solicitor for the Respondent: Herbert Smith Freehills ORDERS
SYG 1527 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASM MAHBUB MORSHED
Applicant
AND: BARRENJOEY SERVICES PTY LIMITED
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
28 APRIL 2023
THE COURT ORDERS THAT:
1.Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (“FWA”), the time in which 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 FWA on 29 September 2022 is extended to 24 October 2022.
2.The Applicant is to file and serve a Statement of Claim by 4pm on 26 May 2023.
3.The Respondent is to file and serve a Defence by 4pm on 23 June 2023.
4.Pursuant to s.169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the proceedings be referred to a Registrar for mediation, which is to be conducted on a date before 1 September 2023.
5.In the event that the proceeding does not settle at mediation, the matter be listed for a directions hearing on a date to be fixed.
6.Liberty to apply on two days’ notice.
7.Costs reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Before the Court is an application for an extension of time to commence a general protections claim pursuant to the Fair Work Act 2009 (Cth) (“FWA”).
The applicant is 10 days out of time to commence a general protections claim pursuant to the FWA. The relevant time limit is 14 days.
Background to the General Protections Claim
The applicant was employed by the first respondent from or about 15 June 2020 until his dismissal on 31 May 2022.
In about early to mid November 2021, the applicant applied to take primary carer parental leave.
In about mid to late November 2021, the applicant was selected by the NSW Greens as the party’s candidate for the local government election, due to take place in December 2021.
The applicant alleges that in express response to his candidature on behalf of the NSW Greens in the December 2021 local government elections, he was suspended from his employment with pay on 25 November 2021 and then issued with a written warning on 14 December 2021.
On 28 January 2022, the respondent declined the applicant’s application for primary carer parental leave.
On 31 May 2022, the respondent dismissed the applicant from his employment. The reason for the dismissal was said, by the respondent, to be a redundancy.
The General Protections Application
As outlined in the submissions filed in support of the extension of time application, the applicant alleges he was subject to several adverse actions not constituting dismissal by the respondent, within the meaning of s.342(1)(b) to (d) FWA that:
(a)Firstly, the respondent took non-dismissal adverse action against the applicant because of his political opinion in contravention of s.351(1) FWA in late 2021;
(b)Secondly, the respondent took non-dismissal adverse action against the applicant because of his sex, carer or family responsibilities, or political opinion in contravention of s.351(1) FWA, on 28 January 2022, when it refused the applicant’s application for primary carer parental leave; and
(c)Lastly, the respondent took adverse action constituting dismissal, within the meaning of s.342(1)(a) FWA, against the applicant when he received a letter dated 31 May 2022, that stated his employment would be terminated that day.
With respect to his dismissal, the applicant alleges that such adverse action was taken against him because of:
(a)His sex, carer or family responsibilities, or political opinion in contravention of s.351(1) FWA; and/or
(b)Various exercises of his workplace rights in early 2022 in contravention of s.340(1) FWA including:
(i)On 28 January 2022, by (verbally) complaining or inquiring to his supervisor, as to why his application for primary carer parental leave had been rejected;
(ii)On 29 January 2022, by (via email) complaining or inquiring about the respondent’s rejection of his application for primary carer parental leave;
(iii)In about March 2022 and April 2022, by (via email) complaining through the respondent’s designated whistleblower reporting service about the respondent’s primary carer parental leave policy.
Relevant Principles
In determining extension of time applications under s.370 FWA, the Court will usually have regard to the following principles:[1]
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.
Consideration of relevant matters
[1] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300, citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; Phillips v Australian Girls Choir [2001] FMCA 109, [10], cited in Ferrus v Qantas Airways Ltd (2006) 155 IR 88, [19].
Explanation for the delay
The only evidence in support of the extension of time application is an affidavit by a paralegal employed at the firm of solicitors who hold instructions on behalf of the applicant.
The applicant, through his previous solicitors, lodged an application in relation to dismissal in contravention of general protections with the Fair Work Commission on 20 June 2022.
The applicant’s current solicitors received instructions to represent him on or about 23 June 2022.
The matter was conciliated by the Fair Work Commission on 5 September 2022, but did not settle.
On or about 5 September 2022, following the unsuccessful conciliation conference the applicant gave instructions to his solicitors to commence proceedings “regarding the matter” in Court. The applicant’s solicitors received the s.368 certificate on 29 September 2022, and were well aware that the limitation period expired on 14 October 2022. However, there is no evidence that the applicant had been advised by his solicitors at or around that time, that the certificate had been received or that time had started to run.
Between 29 September 2022 and 7 October 2022, the paralegal was the only person in the small office who was available to work, and she was busy with unrelated urgent matters. Up to and including 14 October 2022, there appear to have been other deadlines for the applicant’s solicitors to meet, which took priority. It was not until 18 October 2022, that following a file review, the applicant’s solicitors realised that the deadline for the commencement of proceedings had passed. Instructions were sought from the applicant on 19 October 2022 in respect of further information and were provided by him the following day. The applicant’s solicitors then continued to prioritise other matters over that of the applicant.
It was not until the afternoon of Saturday, 22 October 2022, that the applicant’s solicitors finalised the applicant’s documents for filing. The application was lodged for filing at approximately 11am on Monday, 24 October 2022.
There is nothing to indicate that the applicant was responsible for any delay. The delay was occasioned solely by representative error.[2]
[2] See for example: Clark v Ringwood Private Hospital (1997) 74 IR 413; Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; Molony v ATM Logistics Pty Ltd [2018] FCA 640, [13]-[14].
The Court is satisfied that the applicant has provided an adequate explanation for the delay in filing his general protections application to this Court.
Action taken by the applicant to contest the termination
The applicant took steps to contest the termination by filing a general protections claim with the Fair Work Commission. The parties attended a conciliation conference with the Commission.
Prejudice to the respondents
The respondent has not identified any prejudice it might suffer if time for filing is extended.
The mere absence of prejudice however, does not of itself justify an extension of time. It is simply a relevant factor in the exercise of the Court’s discretion.
Merits
Whether treated as a neutral consideration or otherwise, the substantive claim is not plainly unmeritorious or vexatious.
The Court accepts that the applicant appears to have an arguable claim and that if the extension of time is not granted, he will not be able to pursue that claim.[3]
[3] Clarke v Service to Youth Council Incorporated [2013] FCA 1018, [34] (“Clarke”).
Fairness
It was submitted on behalf of the applicant that it would not be unfair to other persons in the same position as the applicant if he was granted an extension of time, in circumstances where his general protections court application was filed late because of representative error, rather than error by his own hand.
However, neither party has identified any person who is in a similar position to that of the applicant.
Determination
The applicant bears the onus of satisfying the Court that there are grounds which warrant the Court exercising its discretion under s.370(a)(ii) to extend time for the filing of the application. In discharging the onus the Court is to take into account that the legislature has fixed a short limitation period.[4]
[4] Clarke [9].
In determining whether the Court ought to exercise its discretion in the applicant’s favour, the Court has taken into account all of the relevant matters outlined, which in summary indicate that:
(a)The substantive application is a relatively short period out of time, and the reasons for delay have been satisfactorily explained in that it was a case of representative error;
(b)The applicant made the requisite application in the Commission and attended the conciliation conference;
(c)There is no prejudice to the respondents;
(d)The application appears to be arguable on the merits; and
(e)There is no issue of unfairness between the applicant and other persons in the same position as the applicant if he was granted an extension of time.
Taking all relevant matters into account, the Court is satisfied that this is an appropriate occasion for that discretion to be exercised and that it is in the interests of justice to grant the applicant the extension sought.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 28 April 2023
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