Pang v Kerry Ingredients Australia Pty Ltd

[2015] FCCA 824

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANG v KERRY INGREDIENTS AUSTRALIA PTY LTD & ANOR [2015] FCCA 824

Catchwords:
INDUSTRIAL LAW – Application for extension of time.

Legislation:

Fair Work Act 2009, ss.365, 368, 368(3), 368(3)(a), 370, 370(a)(i), 368(1), 461

Fair Work Regulations 2009

Applicant: KIA WAH PANG

First Respondent: KERRY INGREDIENTS AUSTRALIA PTY LTD T/AS VAN DEN BERG

Second Respondent: CHANDLER MACLEOD LIMITED T/AS CHANDLER MACLEOD

File Number: BRG 702 of 2014

Judgment of: Judge Jarrett

Hearing date: In Chambers

Date of Last Submission: 29 January 2015

Delivered at: Brisbane

Delivered on: 10 April 2015

REPRESENTATION

The Applicant represents herself

Solicitors for the First Respondent: K&L Gates

Solicitor for the Second Respondent: J Caban

ORDERS

1. The application in a case filed on 20 November, 2014 be dismissed.

2. In the absence of any further written submissions or applications from any party by 4:00pm on 1 May 2015 the application filed on 5 August, 2014 shall stand dismissed without further order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 702 of 2014

KIA WAH PANG

Applicant

And

KERRY INGREDIENTS AUSTRALIA PTY LTD T/AS VAN DEN BERG

First Respondent

CHANDLER MACLEOD LIMITED T/AS CHANDLER MACLEOD

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to commence general protection proceedings by the applicant against the first respondent.  The application is opposed by the first respondent.

2. The second respondent opposes the application.  It too alleges that the general protection proceedings commenced by the applicant against it are also out of time.  Because neither respondent has filed a response at this stage of the proceedings that claim by the second respondent was not articulated by it at any stage before it filed its written submissions on this application.  Thus, it seems that the applicant was not alive to the second respondent’s argument that the proceedings against it too, were commenced out of time.  That serves to explain why the applicant has not sought an appropriate order extending the time within which to commence these proceedings against the second respondent.

3. The applicant and the first respondent have filed written submission in support of their respective positions.  So too, has the second respondent.  The applicant’s written submissions filed on 29 January, 2015 respond to the written submissions filed by the second respondent on 19 January, 2015.  No party has requested an oral hearing and each preferred the Court to deal with the application on the papers.

4. The issue at the core of this application is whether the Fair Work Commission must issue one certificate pursuant to s.368 of the Fair Work Act 2009 that includes the names of all parties to the dispute then before the Commission, or whether the Commission might issue separate certificates at different points in time that do not name all of the parties to the dispute in each certificate so issued.  After determining that issue, it then falls to determine whether the discretion that the Court has to extend the time within which the applicant might commence a general protection proceedings should be exercised in her favour. 

BACKGROUND FACTS

1. The applicant claims in her Form 2 that she was employed by the first respondent for over 11 years “via 3 successive labour hire companies”.  The most recent labour hire company was the second respondent.

2. In her Form 2, the applicant appears to allege that the first respondent was her employer, or perhaps was involved in the conduct which she alleges gives her an entitlement to relief under the Fair Work Act.

3. Between 16 April, 2014 and 23 April, 2014 the applicant claims that she made at least two complaints or inquiries about her work conditions.  She alleges that on or about 9 May, 2014 her work with the first respondent was terminated on the basis of instructions given by the first respondent to the second respondent.  By implication then, it seems that she may be alleging that the second respondent was her employer.

4. The applicant subsequently lodged a complaint with the Fair Work Commission against the first and second respondents.   On 3 July, 2014 the Fair Work Commission held an unsuccessful conciliation conference and issued a certificate under s.368 of the Act.  However, the certificate only included the applicant and the first respondent as the parties to the dispute in the title to the certificate.  The second respondent was named in the body of the certificate, but its name did not appear in the title to the document.  The form of the certificate was as follows:

   CERTIFICATE UNDER SECTION 368

   Fair Work Act 2009

   s.365 – Application to deal with contraventions involving dismissal

   Matter No:        C2014/4710

   Applicant:             Ms Kia Pang

   Respondent:     Kerry Ingredients Australia Pty Limited t/as Van den Bergh’s

   COMMISSIONER RIORDAN                   BRISBANE, 3 JULY 2014

   An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Kia Pang alleging she was dismissed by Chandler Macleod Ltd; Kerry Ingredients Australia Pty Limited in contravention of Part 3-1 of the Act.

   The Fair Work Commission conducted a conference to deal with the dispute on 3 July 2014.

   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.

   COMMISSIONER

   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 of 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.

5. On 22 July, 2014 the Fair Work Commission issued another certificate under s.368(3) of the Act, which named the second respondent in the title to the certificate, but not the first. The certificate was in the following form:

   CERTIFICATE UNDER SECTION 368

   Fair Work Act 2009

   s.365 – Application to deal with contraventions involving dismissal

   Matter No:        C2014/4710

   Applicant:             Ms Kia Pang

   Respondent:     Chandler Macleod Group t/as Chandler Macleod

   COMMISSIONER RIORDAN                   SYDNEY, 22 JULY 2014

   An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Kia Pang alleging she was dismissed by Chandler Macleod Group Ltd t/as Chandler Macleod in contravention of Part 3-1 of the Act.

   The Fair Work Commission conducted a conference to deal with the dispute on 3 July 2014.

   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.

   COMMISSIONER

   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 of 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.

6. On 22 July, 2014 a representative for the applicant requested the Fair Work Commission to “re-issue” the certificate dated 3 July, 2014 so as to have one certificate which referred to both respondents.  The request was refused.

7. The applicant commenced these proceedings on 5 August, 2014 and the parties’ argument has proceeded on the basis that the applicant requires an extension of time of nineteen days to commence proceedings as against the first respondent.

Consideration

One certificate or two?

1. Section 370 of Fair Work Act provides:

   370  Taking a dismissal dispute to court

   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.

2. Subsection 370(a)(i) refers to paragraph 368(3)(a) of the Fair Work Act. Omitting the notes to the legislation, that section provides:

   368  Dealing with a dismissal dispute (other than by arbitration)

   (1)  If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

   (2)  Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

   (3)  If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

   (a)  the FWC must issue a certificate to that effect;

   …

3. No form of certificate is prescribed by the Fair Work Act or the Fair Work Regulations2009. All that is required by s.368(3)(a) is that the Fair Work Commission issue a certificate to the effect that it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.  The phrase the dispute where it appears in s.368(3) is a reference to the same dispute referred to in in s.368(1) of the Act – namely the dispute constituted by the application made under s.365 of the Act as a precursor to the invocation of s.368 of the Act.

4. The certificate issued on 3 July, 2014 was a certificate properly issued pursuant to s.368(3)(a) of the Fair Work Act. The body of the certificate identifies the dispute in general terms. It identifies the application made by the applicant in this court, and it identifies the respondents to the application.

5. The heading to the certificate is not part of the certificate that s.368(3)(a) authorises the Fair Work Commission to issue. The heading is a convenient reference point, but the operative part of the certificate is that contained in the last paragraph above the signature of the Commissioner issuing the certificate. The balance of the certificate serves to connect or identify the certificate with a particular dispute. The particular dispute is fully identified in the body of the certificate.

6. In my view, s.368(3)(a) does not require the naming of all respondents to the dispute with which the certificate deals, in the title that the Fair Work Commission has chosen to assign to the certificate. The certificate must contain sufficient information to enable the Court to conclude as a matter of fact that the certificate issued identifies a particular dispute commenced in accordance with s.365 of the Fair Work Act. The certificate in this case issued on 3 July, 2014 does that.

7. In my view, having issued a certificate for the purposes of s.368(3)(a), the Fair Work Commission had no authority to issue a further certificate. That it named a different respondent to that named in the first certificate did not matter. A certificate had been issued in respect of the dispute. Subsection 368(3)(a) speaks of a certificate. The use of that phrase signifies that only one certificate is contemplated once the Fair Work Commission reaches the necessary state of satisfaction required by s.368(3) of the Act.

8. Accordingly, I find that on 3 July, 2014 the Fair Work Commission issued a certificate pursuant to s.368(3)(a) of the Fair Work Act. The certificate was in relation to the dispute between the applicant and each of the respondents that was commenced by the applicant making an application to the Fair Work Commission pursuant to s.365 of the Fair Work Act alleging that she had been dismissed by the respondents or one of them.

9. The issue of the second certificate on 22 July, 2014 was not authorised by the Fair Work Act and it is of no effect.

10. Accordingly, the applicant requires an extension of time within which to commence her proceedings against both respondents.

The discretion

1. The prima facie position is that the time limit should be observed.  Granting an extension is a discretionary exercise.  The discretion is unfettered, but is to be exercised judicially by identifying the matters relevant to the discretion in the particular case at hand and weighing those matters.  Authority identifies that some matters will commonly be relevant to the exercise of the discretion in any given case.  Thus, whether there is an acceptable explanation of the delay, whether the applicant has acted without delay to actively contest the dismissal and whether there is unlikely to be prejudice to the respondent by the grant of the extension will usually be relevant.  So too, the merits of the principal application that is sought to be commenced.  Other matters may also be relevant depending upon the particular facts of the case at hand.

2. As to her failure to observe the relevant time limit, the applicant, in her written submissions says:

   a)“Due to an error made by the Applicant’s representative, namely that the 14 day time limit for bringing a court application would not begin to run until a certificate was received which named the second respondent, the Applicant was not informed of the relevant time period under s.370(a)(ii) of the Act for progressing her claim to this Court.”;

   b)that the reason why she did not file her application within the 14 day time limit was “because her representative failed to inform her of the relevant time limit”.

3. However, the evidence relied upon by the applicant is confused and confusing.  Her evidence does not make out either of the above propositions.  The applicant has sworn and filed three affidavits.  One appears to be a draft of another.  The third purports to annex certain documents to it, but the documents annexed to that affidavit do not seem to meet the description set out in the body of the affidavit.

4. The applicant’s evidence demonstrates that she was taking advice from the Queensland Working Women’s Service, not a lawyer, legal service or practice. That organisation apparently represented the applicant in the Fair Work Commission. The person from QWWS assisting the applicant has not provided an affidavit. There is no sworn testimony from that person. There is a letter authored by Kerriann Dear, who is described as “QWWS Director” attached to the applicant’s affidavit filed on 22 August, 2014. According to that letter the representative from QWWS assisting the applicant knew that a court application had to be commenced within 14 days of the issue of the s.368(3)(a) certificate but that “due to an administrative error on the part of the QWWS Officer handling the matter” the applicant was not notified of the time limit. It is also alleged that there was a “miscalculation of the timeframe” but that assertion was not taken any further and so it is not clear what is meant by that. The letter further provides that “On 18 July 2014 when the Officer became aware of her omission she noticed that the Certificate that had been issued only listed the first Respondent. At the same time she immediately acted to inform the client and the Commission of the situation.” It is apparent from the applicant’s affidavit that the author of the letter was not the “QWWS Officer handling the matter”.

5. The contents of the letter from QWWS does not establish that there was an error on the part of the applicant’s representative to the effect that the fourteen day time limit for bringing a court application would not begin to run until a certificate was received which named the second respondent as well as the first.  The letter makes it clear that the QWWS Officer was aware that there was a fourteen day time and they commenced to run upon the issue of the certificate on 3 July, 2014.

6. The applicant’s evidence does not seem to support the assertion recorded in the letter from QWWS that the applicant did not know about the relevant time limit.  In her affidavit filed on 22 August, 2014 the applicant swears:

   2. The reason for my delay in commencing the application against the First Respondent is because the Queensland Working Womens’ Service Inc (“QWWS”) failed to inform me that the Fair Work Commission (“FWC”) had issued a Certificate under section 386 Fair Work Act dated 3 July 2014.

   3. I was only made aware by Ms Lee Matahaere that the FWC had issued a certificate on or about 3 July 2014. I was under the belief that the 14 day limitation period would only commence once both certificates were received. Upon receipt of the first certificate on the 3 July 2014 from Kerry Ingredients Australia Pty Limited t/as Van den Bergh’s (“Kerry Ingredients”), I was under the impression that I would be allowed a ‘negotiation period’ until the second certificate was received and only when that period concluded would the 14 day limitation period commence. On the 15 July 2014, my support person Mr Dale Jensen, upon my request, contacted Ms Matahaere requesting a follow up of my case. In both email and telephone correspondence on the 15 July 2014 Ms Matahaere had failed to inform me about the deadline for the submission of my application. The second certificate for Chandler Macleod Group Ltd t/as Chandler Macleod (“Chandler Macleod”) was only received 22 July 2014. Only upon receipt of the second certificate was I made aware that the limitation period had already lapsed on the first certificate.

   4. As I am self represented, and did not have a lawyer acting for me at all times, I was also not aware of the time limit of 14 days required to commence the application.

   (my emphasis)

7. That evidence does not establish that the applicant did not know that she needed to commence her proceedings within 14 days of 3 July, 2014.  Although she asserts that she was not informed that a certificate had been issued on 3 July, 2014 her evidence immediately contradicts that assertion.  Moreover, her evidence that   I have emphasised above is inconsistent with the notion that:

   a)she did not know, until after the expiry of the relevant 14 day time period, that a certificate had been issued on 3 July, 2014; and

   b)that she was unaware that there was a 14 day time limit that she needed to observe.

8. The basis of her belief that the time limit did not commence to run until a certificate issued naming both respondents in the title to the certificate is unclear.  The letter from QWWS does not suggest that she was given that advice by anyone from that organisation.

9. In my view, the evidence does not establish a reasonable explanation for the failure of the applicant to commence her proceedings against the first respondent within the statutorily prescribed limit for doing so.  I am entirely unsatisfied that the applicant did not know that there was a fourteen day time limit that commenced to run upon the issue of the certificate on 3 July, 2014.  Moreover, I am not satisfied that she was advised that the time limit did not commence to run until such time as a certificate naming both of the respondents in the title to the certificate was issued by the Fair Work Commission.

1. The applicant has, however, been actively contesting the decision to dismiss her from her employment.  She pursued an application in the Fair Work Commission and despite the delay in attempting to commence these proceedings, she has sought to pursue her claim in this court.

2. The is no evidence to suggest that the first or second respondents have suffered any prejudice by the applicant’s delay in commencing proceedings, other than to have to answer the applicant’s claim if she is permitted to pursue it.  I accept the assertion that the period of delay is not such that the first respondent would find it difficult to access all records and witnesses.  There is no suggestion to the contrary.

3. The facts sworn to by the applicant demonstrate that she has an arguable case against one or both respondents.  On the facts as sworn to by her it would seem that s.461 is engaged so that the onus would fall to the respondent employer to demonstrate that she was not dismissed for a proscribed reason.

Conclusion

1. The fourteen day time prescribed by Parliament for the commencement of the proceedings such as those that the applicant seeks to commence here is no arbitrary time limit.  It is a limit which ordinarily is to be observed. 

2. There is no adequate explanation by the applicant as to why she did not commence proceedings within the relevant time.  The evidence establishes that she was aware of the relevant time period during which she might have issued proceedings.  The evidence does not establish that she was given advice that she did not need to commence the proceedings until she received a certificate which named both respondents in the title to the certificate.  Indeed the evidence contained within the letter from QWWS suggests that no conclusion to that effect was formed by the officer providing assistance to the applicant with her claim.  Moreover, there is nothing to suggest that the applicant was given any advice that she had a period of time within which to negotiate with the respondents following the issue of the certificate on 3 July, 2014 and before the relevant fourteen day time period commenced to run as she now asserts.

3. Notwithstanding the short period of delay in commencing proceedings, that it is unlikely that the respondents would suffer any prejudice by the grant of the extension and that the applicant otherwise has an arguable case, I am not satisfied that the time within which the applicant might commence these proceedings against the first respondent should be extended.  The applicant has not established a credible explanation for the delay in commencing proceedings.

4. The application for the extension of time sought against the first respondent must be dismissed.

5. In the absence of an order extending the time within which the current proceedings might be commenced against both respondents, the application against them is clearly incompetent.  It seems appropriate to order that the proceedings commenced by the applicant on 5 August, 2014 be dismissed.  However, given that the applicant did not perceive that she required an order extending the time within which to commence the proceedings against the second respondent, and so has not asked for that, I will refrain from making an order dismissing her proceedings in their entirety for 21 days during which time, any party might make further written submissions to me about the further conduct of the proceedings or any further applications.  In the absence of any further written submissions or applications within the next 21 days, the application filed on 5 August, 2014 will stand dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 April 2015.

Associate: 

Date:         10 April 2015