Pearce v St John of God Health Care Inc
[2019] FCCA 3014
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEARCE v ST JOHN OF GOD HEALTH CARE INC | [2019] FCCA 3014 |
| Catchwords: INDUSTRIAL LAW – Extension of time – general protections application – factors for consideration – arguable case established – extension granted. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36 Administrative Decisions (Judicial Review) Act 1977 (Cth) |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 SZTUQ v Minister For Immigration & Anor [2016] FCCA 2889 Venstra v Australian Bay Lobster Producers [2016] FCCA 2308 |
| Applicant: | VANESSA LOUISE PEARCE |
| Respondent: | ST JOHN OF GOD HEALTH CARE INC |
| File Number: | PEG 118 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the Papers |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms M Clohessy (In House) |
ORDERS
Pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), the orders of the Court dated 7 May 2019 be set aside.
Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), 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 Fair Work Act 2009 (Cth) on 15 March 2019 be extended to the date of actual filing.
The matter be referred to mediation before a Registrar of the Court on a date to be fixed by that Registrar.
If the matter does not resolve at the mediation referred to in Order 3, there be a further directions hearing on a date to be fixed by the Court.
Costs, if any, reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 118 of 2019
| VANESSA LOUISE PEARCE |
Applicant
And
| ST JOHN OF GOD HEALTH CARE INC |
Respondent
REASONS FOR JUDGMENT
The applicant filed an application in this Court, with the accompanying Form 2, on 30 March 2019 claiming that her employer, St John of God Health Care Inc (the respondent) had taken adverse action in the form of dismissing the applicant because she had exercised her workplace right to make a complaint. The applicant seeks compensation and pecuniary penalties.
On 7 May 2019, the matter was listed for a first court date. On that occasion, there being no appearance by or for the applicant or the respondent, the Court dismissed the matter pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). It appears that the applicant had not served the respondent with the applications. Hence, the respondent was not aware that any application had, in fact, been lodged.
On 21 May 2019, the applicant filed an application in a case with a supporting affidavit affirmed 21 May 2019. The applicant sought that the orders dated 7 May 2019 be set aside. On 14 June 2019, the applicant served the documents, including the substantive application, the application in a case and the supporting affidavit, on the respondent.
On 17 July 2019, the respondent filed a response. The respondent raise three contentions, as follows:
a)the Court has no jurisdiction to entertain the application in a case as the substantive application was not filed within the time limit prescribed by the Fair Work Act 2009 (Cth) (the “FW Act”);
b)the Court should not set aside the orders made on 7 May 2019 as the applicant has given no reasonable excuse for her non-attendance; and
c)were the Court to set aside the orders it remains the case that the applicant has filed her substantive application out of time and would still require an extension of time.
When the matter came before the Court on 15 August 2019, the Court made orders in the following terms:
1. The applicant file and serve any further affidavits and an outline of submissions in respect of the application for an extension of time and re-instatement of the application by 12 September 2019.
2. The respondent file and serve any affidavits and outline of submissions in response by 10 October 2019.
3. The extension of time application and application for re-instatement be determined on the papers.
4. Costs, if any, be reserved.
On the basis of the above, the Court must now assess an application to set aside the orders dated 7 May 2019 and an application for an extension of time.
The applicant filed a further affidavit affirmed 11 September 2019 and an outline of submissions of the same date. In determining the issues now before the Court, the Court has also had regard to the affidavit filed in support of the application in a case and the Form 2 the applicant filed with the substantive application. The respondent has also filed an affidavit of Madeleine Jane Clohessy affirmed 16 July 2019 and an outline of written submissions filed 10 October 2019.
Jurisdiction
As noted, the respondent raised an objection to the Court’s jurisdiction to set aside the orders on 7 May 2019 in circumstances where the substantive application was filed out of time and an extension has not been sought.
Insofar as the respondent is contending that there is no formal application for an extension of time, it is noted that there is no legislative requirement that an application for an extension of time be made in writing. The applicant acknowledged at the directions hearing (and in her submissions and affidavit) that an extension of time was required. On that basis, and bearing in mind the Court’s objects to act quickly and informally (and further noting that to determine the issues of setting aside the orders and an extension of time separately could protract the proceedings), the Court made the orders as outlined above. No objection to the Court proceeding in this way was raised by either the applicant or respondent.
Insofar as the respondent is contending that the Court does not have jurisdiction to set aside the orders in circumstances where the extension of time has not been granted, it is noted that the respondent themselves referred to SZTUQ v Minister For Immigration & Anor [2016] FCCA 2889 (“SZTUQ”) wherein the Court set aside orders where an extension had not yet been granted.
The Court has also proceeded on this basis in other circumstances.
In Patel v Australian Information Commissioner & Anor [2017] FCCA 1515 (“Patel”), for example, Judge Smith considered an application for re-instatement in circumstances where the substantive application required an extension of time as it had not been filed within the time prescribed by the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Further, in Venstra v Australian Bay Lobster Producers [2016] FCCA 2308, Judge Jarrett (in obiter, having found that the applicant did not, in fact, require an extension of time) noted (at [21]) that, even if his Honour were wrong, there was a very strong case for the applicant to obtain an extension of time pursuant to s.370 of the FW Act and, inferably, his Honour would have set the orders aside in order to entertain the extension of time if it were the case the application were late.
Finally, r.16.05(2)(a) enables the Court to “set aside” the orders it has made. The dismissal of the application pursuant to r.13.03C(1)(c) was exercised pursuant to the Court’s own jurisdiction under the Rules. The Court’s Rules likewise endow jurisdiction to set aside the exercise of that power. This is what the Court is being asked to do here.
In the absence of the respondent pressing this point, the Court is satisfied that it has jurisdiction to determine the application for re-instatement.
Application to Set Aside
The Court will first determine whether the orders of 7 May 2019 should be set aside.
In order to understand the applicant’s evidence, it is necessary to explain briefly what is required to be filed to commence an application. For a general protections claim involving a dismissal (which is what the applicant here claims), an applicant is required to provide:
a)an application in the Court’s Fair Work division;
b)a Form 2 (the approved form under r.45.06) detailing the claim; and
c)the Fair Work Certificate issued under s.368 of the FW Act.
Applicant’s Evidence and Submissions
In relation to the application to set aside the orders made on 7 May 2019, the applicant’s affidavit evidence states as follows:
a)when the applicant filed the application electronically, she received the documents and the Form 2 said that the hearing date was “to be advised”;
b)the applicant now knows she should have registered with the Commonwealth Court Portal and should have sought advice from the Court as to the first court date;
c)the applicant has no experience in legal matters and sought legal advice from Law Access. The applicant then attended the self-represented litigant’s service at the Court and saw the lawyer there. That occurred on 21 May 2019; and
d)the applicant now knows she should have ensured that she received all the relevant orders from the Court. Had she done so she would have served the respondent and subsequently attended Court on the correct day.
In the further affidavit affirmed 10 September 2019, the applicant states as follows:
a)she was not able to access a lawyer and prepared and filed the documents herself. This was the first time she had ever filed documents in a Court;
b)the applicant does not have the benefit of studying employment law at University and was overwhelmed with information as she was navigating both legislation and Court rules whilst preparing her application;
c)at the time of filing, the applicant read the ‘Notice of filing’ on the Form 2, that was stamped. That document had no court date on it and the applicant assumed that the other documents (including the substantive application and the additional document) were just a stamped copy of those documents. Hence, she simply downloaded them without reading them;
d)she does not dispute that the hearing date was in her possession; however, she says that she did not know that she had it (as she did not read the documents) and she is inexperienced in the workings of the Court system. At the time of filing she was not aware that every document, once filed, has a notice of filing as its first page and that the application was “the one with the hearing date on it” - and not the Form 2;
e)the applicant “read the Federal Court Rule (Cth) 6.17” and thought that she had 12 months to serve the application on the respondent and that a date would be set once the applicant had filed an affidavit of service;
f)at the time, the applicant was not registered for the Commonwealth Courts Portal and did not receive any notification from the Court regarding the hearing. Nor did she know that she could access the Portal to view all the information regarding the case. The applicant only became aware that she missed the hearing when she received the order dismissing the application by email; and
g)the applicant rang the Registry after her case was dismissed and learned that a service provided by Legal Aid to assist self-litigants was available. She has now accessed this service.
The applicant’s submission repeated a factual summary of the background to the applications.
The applicant further submitted as follows:
1. The United Nations Declaration of the High-level Meeting on the Rule of Law, considers equal access to justice as a fundamental principle of the rule of law. In this case the Respondent is a corporation and has a lawyer who specialises in employment law on its payroll, and the applicant is a self-litigating representative, who was unable to access legal advice or representation, due to financial hardship caused by the Respondent.
2. The Applicant argues that an inequality to access justice exists between the Respondent and the Applicant which offsets any prejudice the Respondent claimed to have suffered as a result of the initial errors made by the Applicant, that were made due to not being able to access legal representation.
3. The applicant argues that justice would not be served if an extension of time was not granted, and the application for reinstatement was denied, and such action would be prejudicial to the Applicant.
4. Under these circumstances rule 1.06 (1) the Federal Circuit Court Rules 2001 (Cth) gives the court discretionary powers to dispense with compliance or full compliance in the interest of Justice applies.
In relation to these submissions, the Court briefly observes:
a)the fact that one party is represented and another is not is not an “inequality of justice”. The applicant is able to access the legal system and the legal system is able to assist and accommodate her situation to the extent it can to diminish any prejudice;
b)the applicant has not been denied equal access to justice. The applicant has at all times had open and available to her the ability to pursue her claim. Her access is no more and no less than any other person (noting that there are measures in place to ensure that even those who cannot afford filing fees are still able to access the Court); and
c)rule 1.06 allows the Court to dispense with compliance with the Rules. It is unclear how the Court could dispense with compliance of the Rules in respect of the application to set aside the orders. In respect of the extension of time application, the Court cannot dispense with compliance of s.370 of the FW Act by using r.1.06 of the Rules. The application of r.1.06 of the Rules is, therefore, irrelevant to the issues in the present proceedings.
Respondent’s Evidence and Submissions
The affidavit of Ms Clohessy provided the relevant documents to the proceedings. Specifically, the affidavit attached the “Notice of Filing and Hearing” page that was attached to both the application and the Form 2. Ms Clohessy also annexed documents from the respondent’s “Industrial Relations file” held in relation to the applicant’s employment. Those documents included correspondence raising a formal grievance, the formal outcome of the grievance, exchanges regarding the applicant’s return to work and the letter of termination sent to the applicant.
The respondent’s submissions provided as follows:
a)the applicant has not provided a sufficient explanation for her non-attendance and there is no reasonably arguable case to be tried. Hence, there are no exceptional circumstances, nor any good reason, to set aside the dismissal;
b)the applicant was adequately notified of the first court date by the Notice of Filing and Hearing attached to the “Application - Fair Work Division” filed by the applicant. This notice was in accordance with r.2.07B of the Rules;
c)while the Form 2 had the date and time “TBA”, at all material times the applicant was in possession of the date and time on the “Application - Fair Work Division”. She does not dispute that she did not receive this. Rather, she says she did not read it. This is an insufficient reason for not attending at the first court date;
d)the applicant has additionally contended that her lack of legal representation was a reason for her non-attendance. The Federal Circuit Court website provides self-represented litigants with a number of resources to assist in navigating the Court process, found under the tab “resources for self-represented litigants” on the first page of the website;
e)the applicant’s own evidence contains an email from Law Access dated prior to the first court date requesting the applicant email a copy of the documents filed in the Court. The applicant did not do so, and after Law Access made two attempts to telephone the applicant, it advised her that from the publically available information that the proceeding had subsequently been dismissed for non-attendance and took steps to close its file. Accordingly, it is not reasonable to assert the lack of attendance was due to an inability to access legal advice;
f)there would be no utility in setting aside the dismissal because the substantive application was made out of time, and the applicant should not be granted an extension of time and even if an extension were to be granted, the applicant does not have a sufficiently arguable case in the underlying matter; and
g)the applicant’s casual position was terminated in December 2018, seven months after the formal grievance was investigated and responded to by the respondent as the applicant had not performed a casual shift for the respondent in 12 months (since December 2017). Accordingly, the applicant’s employment was not terminated in contravention of a general protection contained in the FW Act.
Consideration
Rule 16.05 is a discretionary power that the Court may choose to exercise if it considers it appropriate in the interests of justice to do so. There are no set factors that the Court must consider in making this determination; however, the following factors have been considered relevant to informing the Court if it should exercise the discretion:
a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
b)the conduct of the applicant since the order for dismissal was made and the extent of any delay in the application being made to set aside that order;
c)the existence and nature of any prejudice which might flow to the respondent from reinstatement and the extent, if any, to which that prejudice can be mitigated by other relief such as costs; and
d)whether the applicant has a reasonably arguable prospect of success.
(MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530, Ryan J at [7])
The applicant’s explanation for her non-attendance appears to be that she does not have legal representation and she did not read her documents properly.
The Court recognises the difficulties faced by self-represented litigants. However, there is no right to legal representation in civil matters: New South Wales v Canellis (1994) 181 CLR 309 at 328. Hence, by itself, the fact that the applicant does not have legal representation is an insufficient explanation for the applicant’s absence at the first court date.
The Court has not overlooked the applicant’s attempts to obtain legal representation. The Court does, however, acknowledge the respondent’s submission that it does appear that, prior to the matter being dismissed on 7 May 2019, the applicant had been asked to provide documentation concerning this matter and did not do so. Ultimately, the attempts to obtain legal representative have limited weight in the context of the set aside application
The respondent submits that the applicant had full notice of the date and time of the first court date and that, in light of this, the applicant should be bound by the dismissal decision: SZTUQ at [27].
The date and time of the first court date was clearly indicated on the notice of filing and hearing page that was inserted onto the application in accordance with r.2.07B(1)(a). The Form 2, however, did not have the day and time listed. It stated “TBA”. The Form 2 was not required to be endorsed with the hearing date and time. Rather, only the application needed to be endorsed and it did contain the details of the first court date.
The Court accepts that this may have caused the applicant some confusion; however, this does not negate the fact that the applicant ought to have read all of the documents carefully or at least contacted the Court. The Court accepts that the applicant’s confusion should be given some weight in favour of explaining the delay.
To the extent that the applicant states that she looked at r.6.17 of the Rules, the Court notes that rr.6.03 and 6.19 (which appear in the same part of the Rules as r.6.17) are both clearly titled “Service of documents” and “Time for service of applications”. This appears to have been overlooked by the applicant.
Overall, the applicant’s explanation for her non-attendance is less than satisfactory. Despite this, the Court does not consider this factor to weigh significantly against the orders being set aside.
The delay in seeking re-instatement was short – 14 days. This factor weighs in favour of an extension. The Court also notes that the applicant does appear to have been actively seeking to pursue her claim at all times. She actively attempted to obtain legal representation from various avenues. It cannot be said here that the applicant sat on her hands or simply ceded to the orders.
The respondent asserts no specific prejudice if the orders were to be set aside. The mere absence of prejudice is not sufficient to exercise the discretion to set aside the orders of 7 May 2019. However, this factor does provided some weight in favour of the orders being set aside.
The final factor the Court will consider relates to the merits of the extension application. In this regard, the Court adopts the approach of Judge Smith in Patel and, for the purposes of the set aside application, will consider the prospects of the applicant obtaining an order extending the time for filing the substantive application. This requires the Court to take into account the reasons for the delay in filing the application and other matters relevant to an extension of time.
Here the Court notes, while not undertaking a substantive analysis, as follows:
a)the length of the delay is minimal. This would likely weigh in favour of an extension;
b)the reason for the delay is much the same as the reason for the applicant’s non-attendance on the first court date: she is not legally represented and is unfamiliar with Court processes. This explanation is arguably inadequate but does not itself warrant denial of the extension request;
c)the prejudice to the respondent appears to be limited; and
d)the respondent appears to have accepted that the applicant raised a complaint and that her employment was terminated. By operation of s.361 of the FW Act, it is for the respondent to rebut the presumption that the adverse action was taken for the prohibited reason. In the circumstances of a reverse onus, it is arguable the merits weigh in favour of an extension.
On a reasonably impressionistic level, the Court is satisfied that it cannot be said that there is no utility in setting aside the orders and entertaining the application for an extension of time under s.370 of the FW Act.
Conclusion
The application to set aside the orders dated 7 May 2019 is allowed.
Extension of Time
The Fair Work Certificate the applicant submitted with the application and Form 2 was dated 15 March 2019. The applicant filed the application in this case at 1.38am on 30 March 2019. In accordance with s.370(a)(ii) of the FW Act, the last day in which the applicant had to file her application was 29 March 2019.
Applicant’s Evidence and Submissions
In the applicant’s affidavit affirmed 10 September 2019, the applicant states:
a)if the applicant had the same resources as the respondent and was able to access legal representation, her application would have been made prior to 29 March 2019 and she would have served the respondent and attended the first court date;
b)she is a self-representing litigant because she does not have the financial means or resources to access legal representation. It is not by choice and the applicant has attempted for over one year to gain assistance from a variety of legal centres. Those legal centres are overwhelmed and under-resourced and only provide her with one-off advice;
c)no win and no pay lawyers charge large sums of money for an initial case assessment. The applicant was advised by Legal Aid that they do not deal with cases regarding workplace law. The applicant did not qualify for Justice Connect and she has applied for a pro-bono lawyer through Law Access;
d)a legal practitioner was kind enough to call the applicant and give her some advice but was not in a position to represent the applicant;
e)as the applicant was not able to access a lawyer, she prepared and filed the documents herself and interpreted the instructions on the bottom of the Certificate with the Acts Interpretation Act 1901 (Cth) (the “AIA”). Specifically, the applicant referred to Item 5 of s.36(1) of the AIA which she interpreted to mean that 14 days started on 16 March 2019, and added 14 and 16 to arrive at 30 March 2019;
f)the applicant started the process of uploading the application to the Commonwealth Court Portal on the evening of 29 March 2019. She thought it would be a quick process; however, she found the Portal difficult to use and it took a lot longer than she had anticipated to upload the application;
g)on 1 April 2019, the applicant received an email from the e-Lodgement administrator advising her that the application may be out of time and to seek legal advice. She was also asked to sign a form and reload it; and
h)the applicant assumed that the document had been accepted “as in time” when it was filed and stamped by the Registrar. The applicant assumed that if it was outside of the Rules of the Court, it would have been rejected by the Registrar and she would then have made an application for an extension of time. The applicant did not file an extension of time application as she did not think it was necessary. If she had understood the process she would not have responded by email to the Registrar indicating she believed it was in time and she would have submitted an extension of time application.
It is noted that in the applicant’s submissions, where she outlines the background to the proceedings, she states that that the application was “one hour and 38 minutes” outside the timeframe. To the extent necessary, the Court will consider the submission referred to above (at [21]) in the context of the extension of time application.
Respondent’s evidence and submissions
The respondent again relied upon Ms Clohessy’s affidavit. Relevantly, insofar as it relates to the extension of time request, the Court notes:
a)the respondent did not receive notice of the proceedings until 19 June 2019 when it was served with the application in a case to set aside the orders of 7 May 2019;
b)following the Certificate being issued, it was not until 19 June 2019 the respondent was advised by the applicant that she had pursued the claim further with the Court;
c)information pertaining to the applicant’s employment is contained in an industrial relations file held by the respondent;
d)the applicant raised a formal grievance on 8 January 2018. That grievance was investigated and an outcome provided to the applicant on 29 May 2018. The applicant was provided with a return to work plan/recommendation within the outcome report;
e)on 1 June 2018, the applicant responded that she was not in a position to participate in a return to work program or assessment and was seeking legal advice; and
f)on 5 December 2018, the applicant was advised that her casual employment had been terminated as she had not been employed for any shifts in over three months.
The respondent submitted as follows:
a)there has been no reasonable explanation of the delay in filing the substantive application. Accordingly, the prima facie position is that the FW Act should be complied with and the time limit should not be extended;
b)in this case, the prejudice suffered by the respondent is not merely the delay in filing the application but also that the respondent was not given notice of application, as it was not served on the respondent until almost three months after the s.368 Certificate. The respondent was entitled to rely upon the fact that it considered the matter to be finalised at the expiration of the 14 day limitation;
c)in addition, the respondent is now in a position where it is faced with having to incur significant costs and use of resources to respond to allegations in circumstances where it has now been approximately one year and 10 months since the applicant last performed a casual shift with the respondent, one year and four months since the applicant’s grievance complaint was formally investigated and a written response was provided, one year and four months since the applicant was lawfully and reasonably directed to attend a fitness for work assessment and nine months since the applicant was provided formal confirmation of the termination of her casual position;
d)if the extension is granted, the respondent will suffer significant prejudice given the delay and lengthy passage of time since the matters raised in the application are alleged to have occurred; and
e)there is no merit in the substantive application as the applicant’s casual position was terminated in December 2018, seven months after the formal grievance was investigated and responded to by the respondent for the reason that the applicant had not performed a casual shift for the respondent in 12 months (since December 2017).
Consideration
The respondent correctly noted that the factors to be considered when determining if an extension of time is required were set out in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299-300 as follows:
a. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The primafacie 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.
b. 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.
c. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
d. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
e. The merits of the substantive application may be taken into account in determining whether to grant an extension of time .
f 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 and the Court is not restricted to considering the above factors. They are but a guide when determining if the circumstances of the case before the Court warrant an extension of time being granted. The Court must consider the circumstances of the case as a whole and if positively satisfied that the circumstances warrant an extension being granted, the Court will exercise the discretion it has to do so.
Delay and Explanation
The applicant says the delay here is only one hour and 38 minutes. This is incorrect. In accordance with r.2.03(3), the application was to be filed by 4.30pm. The end of the time period was not midnight as the applicant suggests. Rather, it was 4.30pm.
In that context, it appears that the applicant’s own evidence suggests that she did not commence filing the application until after 4.30pm. Hence, the fact that the documents took longer than expected to upload cannot be attributed to the application being filed after the time limit. It appears, on the applicant’s own evidence, that she commenced the process of filing the documents after the time limit had already expired.
Nonetheless, the delay is less than one day. It was a matter of hours. While limitation periods ought not to be treated lightly, the delay here is extremely short.
This weighs in favour of an extension.
The explanation for the delay, as described above, was that the applicant did not have legal representation. Quite simply, she calculated the time limit on her own and did so incorrectly.
Lack of legal representation, while unfortunate, is not an adequate excuse: SZTUQ. It does, however, warrant consideration.
The applicant was also not ignorant as to the time limit. This also warrants consideration.
While the explanation provided is not entirely adequate, on the facts of this case, where there is only minimal delay and the applicant was not in any way nonchalant in relation to pursuing her claim, the Court considers the explanation “reasonable”. This weighs in favour of granting an extension of time.
Prejudice and Fairness
The respondent submits that it “has suffered significant prejudice given the delay and passage of time since the matters alleged in the General Protections Application”.
The “delay” in commencing the proceedings was a matter of hours.
The Court accepts that the respondent was not, in fact, served the documents until June. Hence, the delay in being provided notice of the action was protracted. In effect, it three months. The respondent was entitled to assume finality. The Court takes this into account.
As for the submission about the significant passage of time since the “grievance” that is the subject of the application, the Court notes that the respondent has conceded that the grievance (i.e., the exercise of the workplace right) occurred. The determinative issue is the reason for the termination – a matter that occurred 10 months ago. The respondent has not suggested that the decision-maker is incapable of providing evidence related to the reason for termination. Further, the respondent appears to have kept careful documentary evidence of matters which are likely to be relevant to the matter. Notably, Ms Clohessy refers to an “Industrial Relations file” concerning the applicant’s employment.
The respondent refers to “significant costs and resources” tied to responding to the allegations made. The Court notes that Ms Clohessy provided no evidence as to the “resources” that would be required. It appears that the Industrial Relations file is easily accessible and, as for costs, if it is the case that “significant costs” are incurred and these are deemed “unreasonable”, the respondent has recourse to s.570 of the Act.
In the circumstances, the Court does not accept that there has been any significant prejudice to the respondent. Nor would there be any unfairness to the respondent if the extension were granted. The Court does not believe the respondent’s defence would be hindered by the delay. Nor is the delay in service of the application excessive.
The applicant asserts that she is prejudiced as she does not have the same funds as are available to the respondent nor access to legal representation. She appears to suggest that the litigation is “unequal” because the respondent is represented and has an employment lawyer on the “payroll”.
One problem with the applicant’s submissions is that the respondent is required by the Rules to be represented by a lawyer: r.9.05. The Rule does not exist to cause prejudice or unfairness to self-represented litigants. Rather, it is designed to ensure fairness and transparency for all parties involved.
Further, while the Court is sympathetic to the applicant’s concern that she feels her lack of representation is a disadvantage, she is not in a dissimilar circumstance to many persons bringing the same type of application in this Court. The Court is not satisfied that the fact that the applicant is not represented (and that the respondent will be, as it is required to be) will result in unfairness or prejudice her.
The Court is well-versed in providing assistance to self-represented litigants. This includes ensuring that an unrepresented litigant is not disadvantaged or intimidated. Any prejudice the applicant believes she may suffer can be mitigated by the Court’s duty to assist self-represented litigants: Hamod v New South Wales [2011] NSWCA 375.
Overall, the Court considers any issues in relation to unfairness or prejudice are neutral.
Merits
If the substantive application is without merit, it will be futile for the Court to grant the extension.
It is generally inappropriate to fully investigate the merits of the substantive case. Rather, a preliminary impressionistic view should be formed.
The Court must also be mindful that the applicant is unrepresented and the precision of the claim as currently pleaded may not identify clearly the cause of action. The claim may, with time, be better articulated or refined particularly if the applicant and respondent are able to narrow the issues.
Here, the applicant has alleged that she made complaints in the course of her employment –including reporting an incident on 18 October 2017 which culminated in the applicant making a complaint around 6 November 2017 (Form 2, Part G at [7]).
The applicant claims that adverse action was taken in the form of the respondent changing her shifts and ceasing her shifts on 5 December 2017 (Form 2, Part G at [10]). Such allegation, while not properly pleaded per se, is one the Court can identify on the materials provided, The respondent has not responded to these allegations
On 8 January 2018, the applicant submitted a formal grievance. The respondent has acknowledged that the applicant did raise the formal grievance complaint. The applicant has, at the least, exercised a workplace right on 8 January 2018.
On 28 May 2018, the applicant received the outcome of the grievance and was advised of her return to work conditions. It appears the applicant was not in a position to accept those conditions. The applicant’s employment terminated on 29 December 2019. The respondent also acknowledges the applicant was terminated. Clearly this is “adverse action” as that term is defined in s.342 of the FW Act.
In circumstances where the respondent has accepted the applicant has at least exercised one workplace right and that adverse action has been taken, the reverse onus of s.361 of the Act is enlivened. While the respondent responds that adverse action was not taken because of the exercise of the workplace right, it is assumed to have been so taken. While that presumption in the circumstances of this case and on the materials before the Court is, on its face (and without having formed any conclusion), tenuous, the applicant is entitled to the benefit of the presumption. There is no evidence from the decision-maker which positively rebuts the presumption: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549.
Clearly, there are factual issues to resolve and evidence that needs to be called in order to resolve these factual issues. However, on an impressionistic view of the merits, the reverse onus has been enlivened and in those circumstances it cannot be said that there is no merit in the application when it will fall on the respondent to prove that the application should not be successful.
The Court also takes into account the type of application that the applicant seeks to bring in the Court – namely, one that seeks to provide workplace protections. It is in the public interest for those who are found to have breached the protections afforded by the FW Act (acknowledging that the respondent has not yet been found to breached these protections) to be held to account.
Overall, the merits weigh in favour of an extension being granted.
Conclusion
On balance, the Court is satisfied that the circumstances of this case warrant the exercise of the Court’s power to extend the time to file the application to the date of filing. There will be an order made to that effect.
Conclusion
The Court is satisfied that the circumstances of this case warrant the exercise of the discretion to set aside the orders of 7 May 2019 and to extend time to commence the application pursuant to s.370(a)(ii) of the FW Act.
In the interests of timeliness and efficiency, the Court will also make orders referring the matter for mediation before a Registrar of this Court – as is the usual course for matters of this type. Should the matter not resolve, the matter will return for further directions at a later date.
Finally, noting this is a matter arising under the FW Act, the Court is mindful of s.570 of the FW Act in relation to costs. Any application for costs should be made formally by way of application in a case.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 23 October 2019
0
9
5