Paciej v Austral Bowling Club
[2007] FMCA 1144
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PACIEJ v AUSTRAL BOWLING CLUB | [2007] FMCA 1144 |
| INDUSTRIAL RELATIONS – Application for declaration that applicant was unlawfully dismissed. PRACTICE & PROCEDURE – Application for extension of time to commence proceedings – whether applicant has satisfactorily explained delay in not complying with provisions as to filing within 14 days of election. |
| Workplace Relations Act 1996 (Cth), ss.663(6), 643, 650 Industrial Relations Act 1988 Federal Magistrates Act 1999, s.64 |
| Brodie-Hanns v MTV Publishing Limited (1995) 67 ALR 298 Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412 Hunter Valley Developments Pty Limited v Cullen (1984) 3 FCR ABC v O’Neill 229 ALR 457 |
| Applicant: | ANNA ANTONINA PACIEJ |
| Respondent: | AUSTRAL BOWLING CLUB LTD |
| File Number: | SYG1645 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 July 2007 |
| Date of Last Submission: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Slater & Elias |
| Counsel for the Respondent: | Mr K Bennett |
| Solicitors for the Respondent: | Registered Clubs Association of NSW |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1645 of 2007
| ANNA ANTONINA PACIEJ |
Applicant
And
| AUSTRAL BOWLING CLUB LTD |
Respondent
REASONS FOR JUDGMENT
This proceeding is an application that the court grant leave under s.663(6) of the Workplace Relations Act 1996 (Cth) (the “Act”) to extend the time for the applicant to file unlawful termination proceedings against the respondent and for costs.
The process by which an applicant comes to commence proceedings in either this court or the Federal Court in relation to an industrial matter is as follows: after dismissal an employee makes an application to the Industrial Relations Commission for relief in relation to the termination of employment pursuant to s.643 of the Act. The Commission then attempts to conciliate the matter. If the conciliation is unsuccessful the Commission issues a certificate under s.650 of the Act. The certificate states under the heading “Important Notice”:
“The applicant has seven days from the date of the certificate within which to lodge a Notice of Election (or 28 days if a contravention of s.659 is a ground in the application). The application for relief in respect of termination of employment will be taken to have been discontinued if the notice of election is not lodged within that period.”
The certificate in this case was dated 22 March 2007. The grounds upon which the applicant has claimed she was unlawfully dismissed were grounds set out in s.659, in particular the ground set out in s.659(2)(a):
“temporary absence from work because of illness or injury within the meaning of the regulations.”
The applicant therefore had twenty-eight days from 22 March 2007 to lodge her Notice of Election. A Notice of Election was sent on 28 March 2007 and was thus within time. An application to the court must be made within fourteen days after the lodgement of an Election Notice under sub-s.651(6) or within such period as a court allows on an application made during or after those fourteen days (s.663(6)).
The Notice of Election filed on 28 March was not received by the Commission and a further Notice of Election was filed on 17 April. This was in time. The applicant therefore had fourteen days after 17 April to file the application in this court, that date being 2 May. The application was actually filed on 24 May, twenty two days late.
The matters to be taken into consideration by a court in deciding whether or not to exercise its discretion to extend the time for filing of an application are those found in the decision of Marshall J in Brodie-Hanns v MTV Publishing Limited (1995) 67 ALR 298 where his Honour considered a similar regime under the Industrial Relations Act 1988 as decisions of Keely J in Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 and of Beazley J in Turner v K & J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412 and noting that in each case the court had applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Limited v Cullen (1984) 3 FCR 344-349. His Honour stated the principles as:
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 any 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.”
The starting point for this, as in all applications for extension of time, is an explanation for the delay. The applicant filed an affidavit for that purpose on 28 June 2007 and it was served on that day or the next day. On 10 July 2007 the respondent’s solicitors wrote to the applicant’s solicitors requiring the applicant for cross examination. The solicitor involved was not in the office that day and the letter did not come to his attention until 11 July. The applicant did not attend for cross examination. Her solicitor advised the court that the reason for this was that she was a part time employee, 3 days a week, and that today, 17 July 2007, was one of the days upon which she was required to work. The respondent asked the court to reject the affidavit of the applicant on the grounds that she was not available for cross examination. Section 64 of the Federal Magistrates Act1999 provides that evidence may be given orally or by affidavit and that a party to the proceeding may request the person who has deposed an affidavit to appear as a witness to be cross examined. At s.64(6) the Act deals with the situation where such a person does not appear:
“64(6) [Discretion in absence of witness] If:
(a) a request under subsection (4) is given to a person who had made an affidavit; and
(b) the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;
the Federal Magistrates Court is to give the matters in the affidavit such weight as the Federal Magistrates Court thinks fit in the circumstances.”
I determined to admit the affidavit of Ms Paciej after taking objections to various paragraphs from the respondent. The affidavit, insofar as it deals with certain conversations between herself and her solicitor, is corroborated by an affidavit of her solicitor Mr Franks. Insofar as the affidavit deals with certain feelings experienced by the applicant, in particular her feelings of stress and anxiety, two medical reports were annexed, the first dealing with her condition on 26 February 2007 the day she was dismissed, and the second a period between 1 March 2007 and 9 March 2007. There were no medical reports concerning the applicant’s condition at the time she was required to file the application. The history recited in the applicant’s and her solicitor’s affidavits reveals that on 28 March 2007 there was a conversation between the applicant and her solicitor in which he asked for her instructions as to the filing of the Notice of Election. The applicant expressed concern as to whether she would be successful in any proceedings but decided to instruct Mr Franks to file the notice. This was done. On 3 April 2007 the applicant advised her solicitor that she had obtained assistance from the Office of Workplace Services to obtain further legal advice and she asked Mr Franks not to do anything until she contacted him again. On 16 April 2007 the applicant obtained new employment. The applicant received her second legal opinion on 17 April 2007 and received a letter confirming that oral advice on 24 April. There was another conversation between the applicant and Mr Franks on 18 April in which the applicant expressed some concern to him about commencing the proceedings. Mr Franks advised her that proceedings had to be filed by 2 May.
On 2 May 2007 the applicant says that she telephoned Mr Franks. He was not available and she left a message for him to return her call. She did not receive a response and rang Mr Franks again on 7 May 2007. He told her that if she wanted to commence proceedings now she was out of time and would have to make an application of the type that is currently before me. The applicant deposes:
“[24] After talking to Mr Franks I was completely devastated. I could never afford to pay the respondent any monies if they succeeded with an application against me to have the claim struck out. I was already struggling at my new employer and just couldn’t risk the money. Furthermore, I was too scared to ask my employer for time off if I had to attend Mr Franks’ office or Court.
[25] I just couldn’t make a decision.
[26] Finally on 18 May 2007 at around 4.00pm,. I considered myself to be in a financial position to commence proceedings against the respondent. I contacted Mr Franks on that day.”
Mr Franks prepared documents, which the applicant signed on 22 May when they were filed.
I am satisfied from the affidavits of the applicant and Mr Franks that the timing was as deposed to. In the absence of the applicant for cross examination I am unable to give much weight to her evidence concerning having rung Mr Franks on 2 May but I am satisfied that she spoke to him on 7 May and on that day was informed that she was already out of time and must make an application. I also understand that a person being given such advice might be placed in a quandary for the reasons given by the applicant. However, I have some difficulty with her evidence that at 4.00p.m. on 18 May she considered herself to be in a financial position to commence proceedings. The respondent has subpoenaed some financial records of the applicant and tendered as Exhibit 2 a passbook account with St George Bank which reveals a credit balance of several hundred dollars around 18 May but nothing dramatically different prior thereto. In other words the objective evidence does not bear out any sudden change in the applicant’s financial position. The respondent also provided evidence of the termination payments given to the applicant in March 2007. These amounted to a sum in excess of $5,000.00. In the absence of evidence from the applicant I am not satisfied that there was any financial matter which prevented her from commencing these proceedings at the proper time.
In circumstances where the applicant had been told quite clearly by her solicitor the date upon which she had to instruct him to file these proceedings and where the applicant had received a second legal opinion within plenty of time prior to the filing date the applicant would have to provide a far more satisfactory explanation of why she did not act than I believe she has. The concerns expressed by the applicant which I have adumbrated do not refer to a period before the application should have been filed. They refer to her not instructing her solicitor immediately to file an application for leave. The evidence concerning her mental condition is provided by assertion from the applicant and is not supported by contemporaneous medical opinion. There is no evidence that the applicant was incapable of making a decision or acting upon advice. Taking all these matters into account I am unable to be satisfied that the applicant has provided a sufficient explanation for her delay.
The parties addressed the other matters referred to in Brodie-Hanns. The applicant complied with all the other requirements of the Act concerning her contesting of the termination of her employment. The respondent, through its manager, did depose to the inconvenience that would be caused by now having to defend proceedings that it had thought were concluded, but there was nothing said that would suggest that any greater burden was being placed upon the club than if the proceedings had been commenced within time. In relation to the merits of the substantive application I believe that I should adopt the principles expressed by the High Court in ABC v O’Neill 229 ALR 457 where the court is instructed to consider an arguable case. It does seem to me that if the facts were as deposed to by the applicants he would have a reasonable prospect of convincing the court that her dismissal had been in breach of s.659(2)(a) given the wording of the respondent’s letter to her which stated that she was being dismissed for failure to attend a meeting when she was in possession of a doctor’s certificate excusing her from work upon that day.
It does seem to me that in cases such as this the requirement to explain the delay is a primary one. Where delay has not been satisfactorily explained the court should not allow any views it has as to the other criteria to negate the requirement for such satisfaction. It follows that I am unable to exercise my discretion in favour of the applicant in this matter and dismiss the application. I order that the applicant pay the respondent’s costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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