NIXON v CAL Dive International (Australia) Pty Ltd

[2015] FCCA 2614

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIXON v CAL DIVE INTERNATIONAL (AUSTRALIA) PTY LTD [2015] FCCA 2614

Catchwords:
INDUSTRIAL LAW – Application pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether applicant has a meritorious case if extension granted – whether applicant has reasonable explanation for delay – whether otherwise appropriate to grant extension – extension granted.

Legislation:

Fair Work Act 2009 (Cth), ss.341(1)(c)(ii), 365, 368(3)(a), 368(4), 370(a)(ii)

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923
Shea v TRU Energy Services Pty Ltd (No.6) [2014] FCA 271

Applicant: NICHOLAS NIXON

Respondent: CAL DIVE INTERNATIONAL (AUSTRALIA) PTY LTD

File Number: SYG 516 of 2015

Judgment of: Judge Manousaridis

Hearing date: On the papers

Date of Last Submission: 19 May 2015

Delivered at: Sydney

Delivered on: 24 September 2015

REPRESENTATION

Counsel for the Applicant: Ms L Doust

Solicitors for the Respondent: Ms S Gerakios of Seyfarth Shaw Australia

ORDERS

1. Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act), 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(3)(a) of the Act on 16 February 2015 within fifteen days of the day on which that certificate was issued.

2. The matter stand over for directions at a time and date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 516 of 2015

NICHOLAS NIXON

Applicant

And

CAL DIVE INTERNATIONAL (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application under s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for an order permitting the applicant to make a “general protections court application” to this Court one day beyond the day by which the applicant was required to have made that application.

2. The expression “general protections court application” is defined in s.368(4) of the Act as an application to a court under Division 2 of Part 4-1 of the Act for orders in relation to a contravention of Part 3-1 of the Act. An employee cannot make a general protections court application in relation to a dismissal unless the employee first applies to the Fair Work Commission (FWC) under s.365 of the Act to deal with the dispute, and the FWC issues a certificate under s.368(3)(a) of the Act certifying it is satisfied that all reasonable attempts to resolve the dispute, other than by arbitration, have been, or are likely to be, unsuccessful. Additionally, under s.370(a)(ii) of the Act an employee cannot make a general protections court application unless it is made within 14 days after the FWC issues a certificate under s.368(3)(a), or within such period as the Court allows on an application made during or after those 14 days.

3. The applicant in this case applied to the FWC under s.365 of the Act for the FWC to deal with a dispute that arose as a result of the respondent’s having dismissed the applicant. The FWC issued a certificate under s.368(3)(a) of the Act on 16 February 2015. That meant that the applicant had to make a general protections court application to this Court in relation to his dismissal by 2 March 2015. Instead, the applicant made the application on 3 March 2015.

Principles

1. There is no issue between the parties that the principles I should apply in determining this application are those identified by Marshall J in Brodie-Hanns v MTV Publishing Limited when considering a provision in the Industrial Relations Act 1988 (Cth) that is similar to s.370(a)(ii) of the Act. His Honour said:[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.”

   [1] (1995) 67 IR 298, at pages 299-300

2. I will consider each of these factors.

Explanation for delay

1. The evidence of the reasons for the applicant’s not having filed the application by 2 March 2015 is to be found in two affidavits made by Mr Jacka, the National Legal Officer of the Maritime Union of Australia (MUA). Subject to the direction of elected officials of the MUA, Mr Jacka is responsible for representing the industrial interests of members on behalf of the MUA nationally.[2]

   [2] Affidavit of A Jacka, 20.04.2015, [2]

2. Mr Jacka says he was aware that, if the applicant intended to commence a general protections court application in relation to his dismissal, he was required to do so by 2 March 2015.[3] Mr Jacka, however, had difficulties in arranging meetings and obtaining instructions from the applicant and the MUA official who was responsible for the matter because both men were in Perth.[4] It was only in the afternoon of 2 March 2015 that Mr Jacka received instructions to file a general protections court application.[5]

   [3] Affidavit of A Jacka, 20.04.2015, [7]

   [4] Affidavit of A Jacka, 20.04.2015, [6]

   [5] Affidavit of A Jacka, 20.04.2015, [7]

3. Mr Jacka attempted to commence the proceedings by lodging a general protections court application on the Court’s website using e-Lodgment. His first attempt occurred at 4.15 pm,[6] but it was rejected because he did not make any payment. Mr Jacka made another attempt but at 4.40 pm Mr Jacka was contacted by an officer from the Court’s e-Lodgment team and was informed the application was not accepted because Mr Jacka had lodged a form 2, but not an application.[7] At 5.00 pm on the same day, Mr Jacka attempted to file the application and form 2, but this was rejected because the two documents were contained within the one pdf file.[8]

   [6] Affidavit of A Jacka, 20.04.2015, [8]

   [7] Affidavit of A Jacka, 20.04.2015, [11]

   [8] Affidavit of A Jacka, 20.04.2015, [12]

4. The respondent submits that the applicant’s failure to provide instructions in a timely manner and prior to the statutory time limit is not acceptable. The respondent also submits Mr Jacka’s reasons for not filing the application by 2 March 2015 are also inadequate; Mr Jacka’s ignorance of the matters which led to the application not being filed on 2 March 2015 is no excuse; Mr Jacka could have taken other steps pursuant to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to ensure the application was lodged on time; and Mr Jacka should know the rules that apply, in particular r.2.05 of the FCC Rules, which includes a note about the payment of fees when lodging a document for filing, and r.4.01 and r.45.05 of the FCC Rules which refer to the need to file an application in relation to a dismissal from employment in contravention of a general protection.

5. It is true Mr Jacka left himself very little time to file the application, and thus exposed himself to the very risk that came to pass, namely, his not allowing himself time to deal with the difficulties that arose at the time he attempted to lodge the application with the Court. On the other hand, by the time Mr Jacka attempted to lodge the application, he had completed the form 2 and thus had formulated the grounds on which the applicant intends to rely in these proceedings. It is also true that Mr Jacka ought to have known the relevant rules. However, although ignorance does not afford an excuse in many areas of the law, there is nothing in the language of s.370(a)(ii) of the FW Act in the context in which it appears which suggests that delay due to ignorance of the law is a factor on which the Court may not rely when considering whether to exercise its discretion to extend time.

Action taken by applicant to contest termination

1. There is no evidence that the applicant has contested his termination, other than applying to the FWC and, now, to this Court. It is reasonable to infer from the fact the applicant has applied to the FWC, and is now seeking to apply to this Court for relief under the Act, that he has actively contested his dismissal by the respondent.

Prejudice to respondent

1. The respondent does not contend that it will be prejudiced if I extend by one day the period within which the applicant may make his general protections court application. The applicant seeks an extension of one day. It is impossible to conceive how the respondent could suffer any prejudice if I were to grant the extension the applicant seeks.

Merits of application

1. The respondent submits that the applicant “faces significant legal and evidentiary hurdles” in his application. To understand the grounds on which the respondent makes this submission, it will be necessary to describe the applicant’s claims.

2. The applicant claims he was employed as a Senior Mechanical Saturation System Technician and, during the relevant period, was deployed on a particular vessel. On 30 September 2014, while the applicant was recovering a diving bell, the chain on the umbilical winch parted. The applicant complained to a number of the respondent’s supervisorial and managerial staff about the instructions for launching and recovering the diving bell, the absence of any preventative safety measure on the controls, the unsatisfactory calibration of the pressure valve inline, the safety of the diving system, and the correctness of any audit carried out on the system. These complaints related to the safety surrounding the use of the diving bell. The applicant claims that his complaint constituted the exercise by him of a workplace right within the meaning of s.341(1)(c)(ii) of the Act. On 6 October 2014, following a further incident with the diving bell on 3 October 2014, and after the applicant was advised that a client of the respondent had requested the applicant be removed from the project in which the diving bell was used, the respondent terminated the applicant’s employment. The applicant claims his employment was terminated because he had exercised his workplace rights by making the complaints about the incident with the diving bell on 30 September 2014.

3. The “significant legal and evidentiary hurdles” the respondent submits the applicant faces is that the complaint on which the applicant relies as constituting the exercise of a workplace right is not underpinned by an entitlement or right under statute, industrial instrument, or contract. That submission is premised on the proposition that for an employee to be able to complain within the meaning of s.341(1)(c)(ii) of the Act, that ability must be underpinned by an entitlement or right. The respondent relies on Shea v TRU Energy Services Pty Ltd (No.6).[9] In Henry v Leighton Admin Services Pty Ltd & Anor I examined and rejected a similar submission.[10] For the reasons I gave in Henry, I do not accept the respondent’s submission that the applicant in the case before me faces any insuperable legal or evidentiary hurdle only because he has not alleged that the complaints he alleges he made were not underpinned by some entitlement or right under statute, industrial instrument, or contract.

   [9] [2014] FCA 271

   [10] [2015] FCCA 1923 at [51]-[78]

4. The respondent also submits that the respondent did not terminate the applicant’s employment for any proscribed reason. Whether or not that is so is a matter that will need to be determined at a hearing. The applicant’s allegations, if accepted by the Court, give rise to a reasonably arguable case that he exercised a workplace right, and that the respondent took adverse action against him. Given the applicant alleges the respondent took the adverse action because the applicant exercised a workplace right, the onus will be on the respondent to show it did not take that action for a proscribed reason.

Considerations of fairness

1. Neither party has identified any person who is in a similar position to that of the applicant. In those circumstances, there is no issue of unfairness between the applicant and such persons if an order were to be made extending the time by which the applicant may make a general protections court application.

Conclusion and disposition

1. For these reasons, I am of the opinion that it is appropriate to permit the applicant to make a “general protections court application” to this Court within a period which is one day beyond the day by which the applicant was required to have made that application. I will so order. I will also set the matter down for a directions hearing at a time and date to be fixed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 24 September 2015