Potts v Kings Warehousing Administration Pty Ltd

[2014] FCCA 2671

FEDERAL CIRCUIT COURT OF AUSTRALIA

POTTS v KINGS WAREHOUSING ADMINISTRATION PTY LTD [2014] FCCA 2671

Catchwords:
INDUSTRIAL LAW – Whether to grant an extension of time to make general protections application – application refused.

Legislation:

Fair Work Act 2009, ss.370, 368(3), 365, 368(3)(a), 369(1), 727, 728, 370(a)(ii), 340, 340(1)(a)(i), 342(1), 341(1)(c)(ii)

Workplace Relation Act 1996 (Cth)

Brodie-Hanns v MTV Publishing Limited(1995) 67 IR 298
Taj v Western Health[2013] FCA 1226
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Taj v Western Health [2013] FCA 1226
Jennings v Salvation Army [2003] FCA 1193
Evans v Trilab Pty Ltd [2014] FCCA 2464
Shea v TRU Energy Services Pty Ltd (No.6) [2014] FCA 271
Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908
Kweifio-Okai v Australian College of Natural Medicine(No.2) [2014] FCA 1124
Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456
Daw v Schneider Electric [2013] FCCA 1341

Applicant: SEBASTIEN DOMINIC POTTS

Respondent: KINGS WAREHOUSING ADMINISTRATION PTY LTD

File Number: MLG 651 of 2014

Judgment of: Judge Jones

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Melbourne

Delivered on: 19 November 2014

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant: Self Represented

Counsel for the Respondent: Mr Denton

Solicitors for the Respondent: MST Lawyers

ORDERS

1. The application pursuant to section 370 of the Fair Work Act 2009 to extend the period within which the applicant can make his general protection application is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 651 of 2014

SEBASTIEN DOMINIC POTTS

Applicant

And

KINGS WAREHOUSING ADMINISTRATION PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 7 April 2014, Mr Potts (“the applicant”) commenced his application seeking relief against Kings Warehousing Administration Pty Ltd (“the respondent”), alleging contravention of a general protection. His complaint had been unsuccessfully progressed through the processes provided by the Fair Work Commission in accordance with Division 8 of Chapter 3, Part 3-1 of the Fair Work Act 2009(Cth) (“the Act”). The dispute could not be resolved and on 20 March 2014 the Fair Work Commission (“FWC”) issued a certificate pursuant to s.368(3). - disp2

2.S.370 of the 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.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections Court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

1. As the s.368 certificate was issued on 20 March 2014, the applicant ought to have commenced his application on or before 4 April 2014. As the applicant commenced his application on 7 April 2014, he was 4 days out of time. He now seeks, by application pursuant to s.370(a)(ii), an extension of time to commence the application. That application is opposed by the respondent.

2. The principles to be applied are relatively uncontroversial. They are conveniently stated in Brodie-Hanns v MTV Publishing Limited(1995) 67 IR 298 in respect of the superseded legislative regime provided for by the Workplace Relations Act 1996(Cth). Those matters have been more recently restated in respect of the Act in Taj v Western Health[2013] FCA 1226. In Brodie-Hanns v MTV Publishing Limited, Marshall J briefly stated the principles as being:

   a.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.

   b.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.

   c.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.

   d.Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

   e.The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

   f.The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

   g.Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.

3. More generally, on any extension of time request, the Court will have regard to the length of the delay, the reasons for the delay, and the interests of the administration of justice, taking into account the legal merits of the proceedings sought to be pursued.

Submissions

1. There is no dispute that the applicant was aware of the time limit imposed by s.370. This is self-evident from an email dated 28 March 2014 by the applicant to a law firm, stating he was seeking legal representation and, after setting out some details in relation to his claim, stated that if he was to proceed to utilise the option of taking the matter to Court, “I need advise (sic) within the 14 days (by 4^th of April)…”[1];

   [1] Affidavit of Sebastien Potts, sworn 6 June 2014, Annexure 4.

2. The applicant submits that his delay in filing an application for relief in relation to his general protection claim in the Court can be explained by:

   a)      He was waiting to see whether the respondent would accept a suggestion made by Commissioner Ryan during the conference in the FWC, that the matter be dealt with by way of arbitration before him. This offer was declined by the respondent on 28 March 2014.

   b)     He was waiting on further details and/or evidence from the respondent to understand whether to proceed or not. He says that he requested this detail and/or evidence on 21 March 2014 and 17 April 2014.

   It is not clear to me what documents the applicant was seeking on 21 March 2014. The email dated 21 March 2014 sent by the applicant to Ms Carly Amado, HR manager, refers to the applicant’s response/statement to the respondent’s response to his initial complaint to the FWC and states “I await your response requested documents (sic) by COB Friday 28^th of March 2014 and as per my letter emailed to you this morning”.[2]

   [2] Affidavit of Sebastien Potts, sworn 6 June 2014, Annexure 5.

   By email dated 28 March 2014 to Ms Amado, the applicant stated:

   “We are still waiting on the evidence that we requested from you in writing on Friday, 21 March 2014 and in relation to the “single complaint” that was received and advised to me is the reason for my termination. Plus all the other facts and evidence that you believe upholds the reason Kings Warehousing (sic) Administration P/L terminated my employment and nil has currently been provided. The currently lack of evidence from Kings Warehousing Administration P/L has been duly noted.

   As you are aware I have provide (sic) you with the majority of the facts and evidence that I hold and we request the same courtesy from you.

   From Monday, 31 March 2014 we will start the process of proceeding through court and a costs order may be sought against you for the costs of taking this matter to court.”

   On 4 April 2014 (the day the applicant was required to file his Court application under s.370 of the Act) at 3:38 pm, he repeated the contents of his request for information made on 28 March 2014 and stated:

   “Not providing this evidence is a hindrance in the matter. It will also be noted on the Court files that after numerous requests, you Kings Warehousing Administration P/L have not provided this evidence which is vital to this legal matter.”

   At 4:51 pm, on that same day, Ms Amado responded :

   “My understanding was that this was all discussed in the termination meeting? I wasn’t aware you required more information. I have completed my investigation in regards to the meetings you have referred to in your complaint, but have not delved further into this. Will do so and send you any relevant information next week.

   On Sunday, 6 April 2014 at 23:24 hours, the applicant emailed Ms Amado in the following terms:

   “As you are fully aware from my original complaint, the conference with Commissioner Ryan and my further correspondences, no clear reason was given during my termination meeting accept (sic) for “a complaint was made about the site” and “due to my results”. There was (sic) no other discussions or details about it. When I asked for further details in the meeting, Steve Richardson declined my request and advising me that he “does not need to provide specifics”. This was witnessed by David Spinks.

   This is why we have asked for a copy of the “complaint” that was used as a reason to terminate me which you have still not provided. This is an unsubstantiated claim and evidence continues to confirm that I was terminated upon making a complaint of bullying and harassment.

   I’ve been more than accommodating to you in this matter in the hope of an amicable resolution even though you continue to delay the providing of evidence. It has come to the point that I can no longer provide you with my generosity of an amicable resolution.

   On 7 April 2014, the applicant filed his claim for relief alleging dismissal in contravention of a general protection.

   On 17 April 2014, the applicant emailed Ms Amado stating:

   “Confirming that for FWC case C2014/3277 of which is now Federal Court case  MLG651/2014, we have still not received any facts or evidence from you or (the respondent).

   c)      He was occupied with the sale of his house, which was necessary because of the loss of his employment. The sale of his house was confirmed on 25 March 2014. The applicant refers to correspondence dated 25 March 2014 from Ray White real estate [3]which states:

   “Congratulations on your sale of (the house).

   We have forwarded copies of all documents to your legal representative and look forward to a smooth and successful settlement.”

   The applicant stated in the course of the hearing that he was doing a lot of paperwork in relation to the sale of the property.

   d)     Immediately after the respondent declined Commissioner Ryan’s option for private arbitration, the applicant sought legal representation. On 28 March 2014, he contacted Taylor and Preston lawyers. He was advised to email them some details of his matter which he did that day. On 31 March 2014, he attempted to contact them and was advised by a receptionist they would get back to him as soon as possible. On 2 April 2014, he again contacted them. He was advised by a lawyer that they had still not yet perused his file and would, in any case, require a substantial amount of money to be deposited to them immediately as a retainer otherwise they could not assist. Because of his financial position he was not able to deposit the funds and so advised the lawyer. The only option left for him was then to set about organising the application to the Court on his own.

   e)      He had never previously submitted an application to the Court. He contacted the Victorian Registry of the Court via email on 4 April 2014 at 7:02am. He received a response at 9:19am advising him of the process of providing him with links to the correct areas of the Federal Circuit Court website to complete as application. He then attempted to lodge the application early on 7 April 2014.

   f)      He was suffering from depression which had manifested itself since his termination by the respondent. His general practitioner advised him to complete a “Mental Health Plan” for his depression. However, he did not complete the paperwork and commence psychological counselling because he did not want this information in his health records. He firmly believes that his depression contributed to his inability to file the Court application in a timely manner.

   [3] Affidavit of Sebastien Potts, sworn 6 June 2014, Annexure 2.

3. It is appropriate to set out some background in relation to the applicant’s relatively short employment with the respondent and summarise his claim filed in the Court alleging dismissal involving contravention of the general protection provisions under the Act.

4. The applicant was employed by the respondent as a Distribution Manager.  He commenced employment in September 2013. There is no dispute that he was, pursuant to his contract of employment, placed on a six month probationary period, which would expire on or around 17 March 2014.

5. By correspondence from Mr Steve Richardson, General Manager – Warehouse & 3PL, the applicant was informed his employment was terminated, with notice, with effect on 24 February 2014. The correspondence relevantly stated:

   “Your 6 month probation period was due for completion on 17/03/2014 with Kings. As discussed, based on performance and results, as per the probation period clause in your employment agreement, we will not be continuing your employment within the Kings group.”

6. Part G of Form 2: Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection, requires an applicant, at section 24, to specify the grounds for the claim and, if relying on s.340, specify the “workplace right” claimed. The applicant did not specify the workplace rights claimed. Instead he set out the following:

   (1)    Because I complained of bullying and inappropriate behaviour by my Manager.

   (2) Because (the respondent) instructed me to use Constructive Dismissal on my team of which I voiced my concerns and declined to do due to it being illegal as per the Fair Work Act. It was requested by my manager to reduce costs to the business.

   (3)    As I didn’t agree to purchase a car (also part of item 1 claim)

   (4)    during my termination I was advised that it was due to my results and due to one (unsubstantiated) complaint but just two weeks prior and just before I left on annual leave I was complemented (sic) on my performance by my manager.

   Please see attached document that provides details of each claim with (respondent’s) response and then my further responses. All of which have been advised to the FWC as part of my claim.

   NB: numerous requests have been made to (respondent) for evidence and facts in line with their responses to the claims but none have been provided.

7. The attachment referred to in the claim is somewhat dense and, in parts, difficult to understand on its face. Having regard to the fact that the applicant is self-represented, I asked him, during his submissions, to explain various matters referred to so that I could develop a better understanding of his complaint. I emphasise that I have read all of the attachment, however, for the purpose of this decision, summarise the key aspects of the applicant’s claim so far as I can understand them. I have utilised the headings under which the applicant set out his complaints.

8. Complaint of bullying and inappropriate behaviour by his manager: it appears his direct manager was Mr Richardson. He claims that he advised a “couple of staff members including a company HR representative that he was concerned by the way my Manager spoke to me and my fellow colleagues. Using very specific swear words, derogatory terms and horrible names.” This conduct he says happened in management/planning meetings. He claims Mr Richardson used his place of birth, the United Kingdom, to ridicule him. He claims he saw this as bullying and very intimidating behaviour. He claims that he asked Ms Welford-Smith, in or around October or November 2013 (T31-32), after a meeting in the boardroom, whether she would have time to have a chat. Ms Welford-Smith and the applicant went after the meeting to a local cafe to have coffee. The applicant says he advised her that “I wanted to have this chat as I was concerned about the way Steve Richardson was approaching things in a personal and bullying nature. I informed (Ms Welford-Smith) of the couple of scenarios that had  caused me concern plus other issues that I had witness (sic) towards other people and (Ms Welford-Smith) advised, “that’s just Steve, he is alright when you get used to him””.

9. The applicant stated, in his oral submissions, that he believed Ms Welford-Smith was a HR person. The respondent says her position was Group Recruitment Partner.  The applicant claims that “at this stage I was advising HR as per my duty of care for myself, the company and the staff”. The applicant says that he did not make a formal complaint because he believed that Ms Welford-Smith had “taken on board my discussion, and maybe have taken it back to head office” (T31). The applicant claims that, after this, there were regular issues with regards to bullying, such as in relation to a company car and why he didn’t have one/afford one and about his English Heritage. He says that he did not approach Ms

   
   

   Welford-Smith again to discuss the ongoing bullying or find out what the respondent was doing about the issues he raised. He says that he was then discussing the matter with Mr David Spinks, National Accounts Manager.

10. He claims that Mr Richardson was bullying him to buy a car. He says that when he was offered the role, he asked if he would need a car and that if he did, would the company provide a car allowance. He says he was advised that he did not need a car and so no allowance would be provided. He claims, subsequently, Mr Richardson regularly enquired (in front of other staff at meetings) if he was getting a car and why he wouldn’t buy one. The applicant claims he felt intimidated by this behaviour.

11. He says it came to a head at meetings on 15 and 17 January 2014 where he was “highly insulted and disgusted by the language and offensive nature that was used”. He says this “included about my “lack” of car, nationality (the 3 pommes) and calling team members names for example (fat prick) to (another employee) and then he  changed his comments to “fat pwick” due to (the employee’s) way of pronouncing “r”. The applicant claims that at the second meeting Mr Richardson continued to insult the employee and make lewd references about his wife. The applicant said he made it clear at the meeting to Mr Richardson that he was concerned by his actions and, because he was so shocked and upset and appalled by the situation, he reported it immediately to Mr David Spinks, National Accounts Manager. The applicant alleges that Mr Spinks told him that what Mr Richardson was doing was highly inappropriate. He said that, in the next week, he reconfirmed his issues with Mr Spinks in regards to bullying. The applicant says that, as Mr Spinks was well regarded by senior management and because he was a manager at a higher level than himself, he believed that Mr Spinks would be able to formalise the complaint (T33).

12. The respondent instructed him to constructively dismiss employees which he refused and expressed concerns about this because it was illegal under the Act. The applicant claims that as a consequence of the respondent losing a major client, Mr Richardson stated he wanted to reduce full-time staff at his site from 6 to 2. The applicant says that he suggested to Mr Richardson that they be made redundant. Mr Richardson responded that he did not believe in redundancies and requested the applicant use “performance” and use other ways (such as transferring employees to jobs they could not perform) to “push” the employees out. The applicant expressed his opposition to this and pointed out to Mr Richardson that it was against the Act.

1. The reasons given at the termination meeting for his dismissal (his results and a complaint) contradicted performance assessment given by his Manager. The applicant claims that, in the three one-on-one meetings he had with Mr Richardson, he was advised that he was performing well. He says he was never advised he was not performing well. He claims that Mr Spinks, whom he would call as a witness, would confirm that his termination was not due to performance and results. I should observe here, that this allegation by the applicant is clearly not a claim relating to a complaint he made but is directed to contradicting the reasons given by the respondent for his dismissal. The applicant claims that Mr Spinks (who attended the termination meeting) informed him after the meeting that “performance and results” was a term the respondent’s used in the past to dismiss staff (T13-T14).

2. The applicant submits that he was out of time by only a short period of time, that he was taking action to contest his dismissal and that there were factors which contributed to his delay. He also submits that he has a good case of contravention of general protection provisions by the respondent and that he desires to proceed to litigation to prove his case.

3. The respondent submits that the applicant understood that he was required to file his application in the Court by 4 April 2014. It rejects the explanation by the applicant that he was waiting on requested information from the respondent before deciding whether to proceed to Court. The respondent submits that it was under no obligation to provide such information. Moreover, the respondent asserts that the priority the applicant claimed he gave to the sale of his house was his choice and has no bearing on the question of a grant of leave to extend time. Further, it submits that the sale of the house was confirmed on 25 March 2014, ten days before the day the applicant was required to file his application in the Court.

4. The respondent, rightly, submits that the applicant has failed to provide any medical report to support his assertion that his alleged depression contributed to his delay. The respondent points out that, contrary to his claim that he was impaired by his depression, the applicant was able to engage in proceedings before the FWC and communicate with the respondent regarding his case.

5. Finally, the respondent submits the explanation that the lawyers from whom the applicant sought representation, were unreasonable in seeking a retainer, does not bear on the issue of delay. The respondent submits that there is no issue that the applicant’s legal representatives contributed in some way to his delay because at no time during the relevant period had the applicant instructed solicitors to act on his behalf.

6. As for the substantive case, the respondent submits that the applicant has failed to identify, with any precision, the provision of the Act he relies on and the manner in which he intends to make good his claim. They rely on the decision of Lucev J in Whitfield v One Key Resources Pty Ltd 2014 FCCA 553, where his Honours stated at [41] and [45]:

   41.The contraventions alleged specify no workplace right under s.340 of the FW Act which is claimed to be relied upon as the basis for a dismissal in contravention of a general protection. Likewise, no other contravention of the FW Act is set out. As such, it is simply not possible to determine whether or not there has been a contravention as alleged, because no contravention is alleged by reference to any section of the FW Act. Nor are the alleged contraventions discernible from what are said to be the grounds alleging contravention. Further, the grounds do not allege a contravention under the FW Act in any recognisable form. Thus, not only are the alleged contraventions not specified by reference to the provisions of the FW Act relied upon, they are also not specified in words recognisable as alleging a contravention under any of those sections. It is not for the Court to assume what contraventions it is that an applicant, even a self-represented applicant, alleges.

   45.There is no evidence as to any persons who were in a like position with respect to termination of employment on the bases on which Mr Whitfield  says he was terminated. Further, if a broad view of persons in a like position was taken, then considerations of fairness militate against the grant of an extension of time in this case because of the failure of Mr Whitfield  to properly allege or set out, even in simple terms, any contraventions, and the failure to file any affidavit material in relation to the alleged merits of any alleged contraventions, or any acceptable reason for the delay in filing the application. Put simply, if this application for an extension of time were to be granted, it would be unfair to many others, both past and present, who have not had, or will not have, their applications for extension of time granted.

7. The respondent submits that the 8 page document filed by the applicant is “rambling” providing little assistance to the reader as to the basis of the applicant’s claim.

8. The respondent submits:

   21. Whilst the Respondent will adduce evidence to contradict the allegations made by the Applicant, should it be necessary to proceed to a hearing, the Applicant’s alleged factual material filed, if true (which is not admitted), does not constitute sufficient grounds to amount to any prima facie contraventions of Division 3 Part 3-1 of the Act:

   (a)   The Applicant alleges that he talked to Nicola Welford-Smith (Group Recruitment Partner) about the alleged conduct of the Applicant’s manager over a 10 minute coffee break. It is alleged that Nicola did not treat the matter seriously;

   (b) Whilst it is conceded that the Applicant had a workplace right not to be bullied, the alleged conduct, which is not admitted, could not amount to bullying and the alleged statement to Nicola could not amount to a complaint within the meaning of s.341(1)(ii) of the Act;

   (c)    The Applicant makes vague allegations that his dismissal was due to his objection to the requirement by his manager that he performance manage certain members of his team. He alleges that it was his opinion that he was being required to unlawfully bring about the termination of their employment;

   (d) The Applicant’s objection to the manner in which he is directed to carry out his duties does not constitute a workplace right, and the alleged voicing of his concerns could not amount to a complaint within the meaning of s.341(1)(ii) of the Act; and

   (e) The alleged criticism of the Applicant for not having a motor vehicle, which is not admitted, could not constitute a contravention of Division of Part 3-1 of the Act.

9. The respondent argues that the applicants’ 8 page document focuses on the inadequacy of reasons and lack of documentation justifying his dismissal. The respondent points out that the dismissal must be seen in context; namely that the applicant was nearing the end of his probation period and, in the ordinary course of employment, his position and performance would be reviewed for the purpose of determining whether his employment should be continued. The respondent submits that the applicant’s allegations disclose a complaint of unfair dismissal rather than general protection.

Consideration

1. In Clarke v Service to Youth Council Incorporated [2013] FCA 1018, Justice White at [7] to [8] referred to the observations of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor) with respect to the rationale for statutory limitations periods. He noted that the High Court was dealing with legislation imposing a considerably lengthier time period (3 years) but opined that these observations were pertinent to the then s.371(2) of the Act which was in substantially equivalent terms to the current s.370 of the Act. His Honour said he formed this view particularly given the context he was dealing with; namely the applicant was claiming relief from contravention of general protections in the form of reinstatement.

2. In Taylor McHugh J (with whom Dawson J agreed) said (at 547):

   “A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. ... A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

   Toohey and Gummow JJ said (at 547):

   “The discretion ... is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant.”
   (Citation omitted.)

3. Although the applicant in this matter is claiming relief by way of 6 months salary, I see no reason why the observations in Taylor should not generally apply in circumstances where statutory limitations on the time within which causes of action may be instituted. Respectfully, therefore, I have adopted the approach in Taylor:

   a)The limitation period of 14 days in s.370 is not an arbitrary cut-off point but reflects the legislature’s judgment as to the balance between the demands of justice and general welfare of society;

   b)The provision of a discretion to a Court to extend that period of time recognises that the facts of particular categories of cases may warrant the time limitation be overridden;

   c)The ultimate onus of satisfying the Court that time should be extended rests on the applicant.

4. This latter consideration is captured in the guiding principle derived from  Brodie-Hanns  that the Court must be positively satisfied that the prescribed period should be extended.

5. I will turn to consider whether I am positively satisfied that I should extend the prescribed period under s.370.

Acceptable explanation for the delay

1. The delay in the making of the general protection Court application was not long (4 days).

2. I accept that it was reasonable for the applicant to wait until the respondent had advised him whether or not it would accept arbitration of his claim by the FWC as an alternative to proceeding by way of litigation in the Court. However, this fact did not relieve the applicant of the burden of ensuring that he was in a position to make his application in the event the respondent did not accept the option of arbitration. The applicant was aware of the two week time line and would be aware of the need to be organised if required to meet this.

3. Even if I accept this was a reasonable explanation for delay, the applicant was advised by the respondent on 28 March 2014 that they did not accept arbitration. The applicant still had until 4 April 2014 to file his general protection claim with the Court.

4. I do not accept that waiting for more information from the respondent before lodging his claim is a reasonable explanation for delay. The applicant was required to make his decision whether or not to proceed to Court on the basis of the evidence within his own knowledge.

5. The applicant claims he suffered depression as a consequence of his termination and this affected his capacity to prepare and ensure his application was lodged in time. I do not accept this explanation. There is no probative medical evidence before the Court as to the diagnosis of his condition and the effect of this condition on his capacity to prepare and lodge his claim in a timely manner.

6. The applicant relies on his unfamiliarity of Court processes as a reason for delay. This is not an acceptable explanation. The overwhelming majority of persons who represent themselves are in the same position. The applicant demonstrated he was capable of contacting the registry of the Court and accessing the relevant forms from the Court’s website. His difficulty is that he failed to take these simple steps in a timely manner leaving these steps he ought to have taken until the day he was required to initiate these proceedings.

7. I do not accept his explanation that he was occupied with the demands of selling his house. The sale of the house was effected on 25 March 2014, some time before the deadline of 4 April 2014. The correspondence from Ray White Real Estate, discloses that it was the applicant’s solicitors, not him, who were attending to the necessary paperwork.

8. Finally, even if I accept that the applicant did enquire with a law firm regarding legal representation, the undisputed facts are that the applicant did not instruct solicitors on his behalf nor had he retained solicitors. Consequently, a delay attributable to the action or inaction of his solicitors is not a relevant consideration in this case: cf Taj v Western Health [2013] FCA 1226 at [8]. It is not an acceptable reason for delay in meeting the time limit that the applicant had approached a law firm and was awaiting their response.

Action taken by the applicant

1. I accept that up until 28 March 2014, when the respondent informed the applicant that they did not accept arbitration as an alternative to Court proceedings, the applicant was taking steps to dispute his dismissal. I do not accept that contacting a law firm to ascertain whether they should be retained to represent the applicant constitutes action to dispute the dismissal. The circumstances may have been different had the law firm been instructed by the applicant to act on his behalf.

2. On balance, I am satisfied that the applicant had a reasonable explanation for not taking action until 28 March 2014. However, I am not satisfied that there was a reasonable explanation for the delay in filing his claim and his failure to take action to dispute the dismissal after 28 March 2014. From that time he had a week to file his claim.

Prejudice to the Respondent

1. As the extent of the delay is short I see no real prejudice to the respondent.

2. The respondent complains that it will be forced to deal with proceedings involving (on the applicant’s submissions) many witnesses and a claim which is rambling without reference to relevant sections of the Act. At this stage I do not accept this is a prejudice I should take into account. The applicant is self represented and, in the normal course of events, it would be expected that the precise nature of the applicant’s claims can be better refined. The fact of numerous witnesses is one which can be dealt with at interlocutory proceedings.

3. The respondent’s complaints are relevant in circumstances where the applicants claim for relief is without merit.

Unfairness

1. I do not agree that a failure of an applicant to specify the particular sections of the Act under which he claims contravention of general protection or to particularise his claims as might be expected in pleadings, renders unfairness against others who have or may apply for extension in time under s.370.

2. Section 3 of the Federal Circuit Court Act 1999 has as its objects:

   Objects

   (1) The main object of this Act is to continue in existence the Federal Magistrates Court created under Chapter III of the Constitution as the Federal Circuit Court of Australia.

   (2)  The other objects of this Act are:

   (a)  to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and

   (b)  to enable the Federal Circuit Court of Australia to use streamlined procedures; and

   (c)  to encourage the use of a range of appropriate dispute resolution processes.

3. It seems to me that, in accordance with these objectives, this Court is bound, particularly where litigants represent themselves, to look at the substance of claims made and where these are made clumsily and in a manner far removed from a proper pleading, to attempt to discern, by reference to what is tolerably clear on the face of the material, what is the character of the claim being made. This is the approach I have adopted below.

4. Otherwise I do not find any unfairness to others in a like position.

Merits of substantive claim

1. In Jennings v Salvation Army [2003] FCA 1193, Justice Marshall explained the manner in which the substantial merits of the case may be relevant (at [27]):

   “27 In the passage from Haining, quoted at [10] above, the Full Court said that a highly meritorious case might persuade a decision maker to accept the adequacy of an explanation that would not pass muster in the case of little apparent merit. It may be said that meritorious factors that might go against the grant of an extension of time would be overshadowed by the fact that there is a highly meritorious case to be advanced. If, on the other hand, the Court is of the view that there is a case that has very limited prospects of success, that also might legitimately persuade the decision maker not to accept other matters that might either go in favour of an applicant or be neutral. In the circumstances of this case I consider that the merits overwhelmingly support the position of the Salvation Army”.

2. I agree with the respondent that understanding the applicant’s case is made difficult by the fact that he has failed to identify which general protection provision he claims the respondent has contravened.

3. It is tolerably clear from the applicant’s claims set out in Form 2 that he claims he was dismissed in contravention of a general protection provision under the Act:

   a)because he complained about bullying and harassment. He claims the bullying and harassment was constituted by denigrating comments made and swear words used towards him and other employees by Mr Richardson and by Mr Richardson intimidating him about buying a car; and

   b)because he refused to comply with a direction from Mr Richardson to “performance manage” employees who were surplus to the respondent’s needs;

   c)because at the meeting during which he was informed he was dismissed, he was told that the reasons were his results and a complaint which the applicant says was unsubstantiated.

4. The latter reason given for his dismissal is put by the applicant not so much in the context of a complaint he made, but for the purpose of alleging that the reason given by management was not the reason or reasons for his dismissal. I assume that the applicant alleges this to argue that a reason or reasons for his dismissal was in fact his complaints.

5. Consequently, I am prepared to assume that the applicant alleges breach of s.340 of the Act. Adverse action, such as a dismissal, taken because a person has a workplace right is prohibited under s.340(1)(a)(i) of the FW Act. Section 342(1), Item 1 of the Act provides that adverse action is taken against an employee by an employer if the employer dismisses the employee. There is no dispute in this case that there was a dismissal. Section 341(1) of the FW Act provides that a person has a workplace right if the person:

   (c)is able to make a complaint or inquiry:

   (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)if the person is an employee – in relation to his or her employment.

6. It must be remembered that, although the letter terminating the applicant’s employment was signed by Mr Richardson and the meeting at which the applicant was terminated, was conducted by Mr Richardson with Mr Spinks present, the respondent has not yet identified who was the person who decided to terminate the applicant’s employment.

1. Having attempted to clarify the elements of the applicant’s claim of contravention of a general protection, I will now identify the issues which would likely emerge.

2. On the applicant’s own case, he did not make a formal complaint about bullying and harassment by Mr Richardson. On his own evidence he had discussions with Ms Welford-Smith about Mr Richardson’s behaviour. His evidence is that she said words to the effect that that was just Mr Richardson and he was alright once you got used to him. This meeting was in October/September 2013. The applicant made no further contact with Ms Welford-Smith. The applicant also says that he reported Mr Richardson’s conduct at meetings in January 2014 to Mr David Spinks, and that Mr Spinks told him that Mr Richardson’s conduct was highly inappropriate.

3. The first issue may well be whether the discussion/meeting with Ms  Welford-Smith and Mr Spinks amounts to a complaint within the meaning of s.341.

4. As observed in Evans v Trilab Pty Ltd [2014] FCCA 2464 (Trilab), divergent approaches have emerged as to when an employee “is able to make a complaint or inquiry”[4] The divergence may be summarised as whether the ability to make a complaint is confined to an ability that arises out of a statutory (including a statutory instrument), regulatory or contractual right: Shea v TRU Energy Services Pty Ltd (No.6) [2014] FCA 271 or an ability which can be said to arise having regard to the wide terms and purpose of the section: Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908 (“Murrihy”).[5]

   [4] See the discussion of the authorities at [17] to [26].

   [5] In Murrihy , Jessup J found that the action of an employee seeking legal advice about her rights in relation to remuneration or commissions fell within the meaning of s.341(1)(c )(ii).

5. In Kweifio-Okai v Australian College of Natural Medicine (No.2) [2014] FCA 1124, Tracey J stated at [14]:

   14. Section 340 of the Act provides that an employer must not take adverse action against an employee ‘because’ the employee has exercised “a workplace right”. A “workplace right” is defined in s 341(1)(c)(ii) to mean, among other things, that an employee is able to make a complaint in relation to his or her employment. In Shea v TRU Energy Services Pty Ltd (No 6) [2014] FCA 271 Dodds-Streeton J noted that the Act did not contain a definition of the word “complaint.” Having reviewed the authorities she held that a complaint could be treated as having been made if the “relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”: see at [626] and, generally, at [576]-[631]. Her Honour also held that the source of the employee’s ability to make such a complaint could be founded in his or her contract of employment. Such a contract could incorporate policies, such as grievance policies, which conferred rights and imposed duties on employees and employers: see at [633]-[641]. The respondent had in place a grievance policy to which the applicant was entitled to have resort. Given the respondent’s concession that relevant complaints had been made, it is not necessary to examine this policy further.

6. Neither a copy of the applicant’s contract of employment nor the relevant policies of the respondent are before the Court. 

7. The second issue, which the respondent raises, is whether, assuming Mr Richardson was the decision maker, it can reasonably inferred Ms Welford-Smith or Mr Spinks could have been expected to convey this complaint to Mr Richardson. The respondent argues that, on the applicant’s case this is doubtful, given Ms Welford-Smith appears to have responded that the applicant would get used to Mr Richardson’s behaviour and not that she would take steps to deal with the conduct.

8. The applicant of course states that he expressed his concern on numerous occasions to Mr Spinks. He says he expected Mr Spinks to formalise his complaint for him.

9. If there is a contractual right to complain about bullying and harassment, the question may well become whether the communication by the applicant to Ms Wellford-Smith and Mr Spinks “would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”.

10. There is also a question as to whether the content or nature of the complaints are capable of constituting a workplace right within the meaning of s.341(1)(c)(ii) of the Act.

11. Complaints that an employee has engaged in conduct amounting to bullying and harassment towards the applicant is generally accepted as an exercise of the workplace right because of the existence of state occupational, health and safety laws.

12. An issue arises as to whether complaints that an employee has engaged in conduct amounting to bullying and harassment towards another employee would fall within the scope of s.340 and s.341.

13. Whether such a complaint falls within the meaning of s.341(1)(c)(ii) will depend on the nexus or connection to the applicant’s employment; for example, whether the subject matter of the complaint raises an issue with potential implications for his employment: Walsh v Greater Metropolitan Cemeteries Trust (No. 2) [2014] FCA 456 at [40] to [44].

14. It has been held by this Court that complaints about directions issued to an employee by management which the employee refuses to comply with because he or she regards it as unlawful does not constitute a workplace right: see Daw v Schneider Electric [2013] FCCA 1341 at [102] to [114]. However as pointed out by Lucev J in Trilab at [59]:

    “59. The outcome in Schneider Electric, that no workplace right arises from the refusal to perform duties which were illegal or unlawful, also does not sit easily with the Federal Court’s judgment in Greater Metropolitan Cemeteries Trust (No.2) where the raising of a contract probity issue in relation to a supply contract, which if not raised might have reflected badly on the employee and caused her prejudice in her employment, was held to give rise to a workplace right under s.341(1)(c)(ii) of the FW Act.”

15. Given that the applicant contends that he expressed his concern about the directions issued to Mr Richardson in relation to employees who were surplus to the company’s needs, and refused to comply with this direction, there is clearly a link between this concern and the action of the company in dismissing the applicant. If Mr Richardson was not the decision maker, then it is clear he was very much part of the process leading to the dismissal (he signed the termination letter and informed the applicant of his dismissal).

16. The respondent submits that the context for the applicant’s dismissal is relevant. This context was, the respondent submits, that the applicant was nearing the end of his probationary period and the respondent  decided that the applicant’s performance was such that it would not continue the applicant’s employment .

17. Although Judge Lucev was dealing with an interlocutory application in Trilab, in which the test is “no reasonable prospects of success”, I am satisfied his Honour’s observations regarding the question of an arguable case are, respectfully, apt to this matter (at [61]):

    “61. For the purposes of determining whether or not Mr Evans has an arguable case it is not necessary for this Court to determine which of the divergent approaches might be right or wrong as a matter of law, but as the rights of the parties depend upon it, it is obviously appropriate that the matter goes to hearing. It is evident from the cases set out above that it is arguable that a complaint or inquiry need:

    a) not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person’s employment for the purposes of s.341(1)(c)(ii) of the FW Act; and

    b) only have an indirect nexus with a person’s terms or conditions of employment to come within the scope of s.341(1)(c)(ii), and may be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee’s employment.”

18. Having regard to the identification of the issues that the applicant will be required to deal with if he were to litigate his substantive claim, I find that his case is not highly meritorious. On the other hand, I cannot be satisfied that his claim has no reasonable prospects of success. There are no doubt issues which a Court will be required to determine as a matter of law. The respondent states that it disputes much of the factual material alleged by the applicant, however, this is not unusual in matters such as the present.  I accept the respondent particularly argues that the applicant’s termination was only for the reason that his performance was not at a standard that would warrant his employment continuing beyond the probationary period. Against this, however, the applicant maintains, particularly by reference to statements he alleges Mr Richardson and Mr Spinks said to him, that the reliance on “results’ is simply a ruse to remove employees. Obviously these allegations will need to be tested in evidence. Much will depend on the evidence of Mr Richardson and Mr Spinks.

19. At most I can only say that the merits of the applicant’s substantive case are such that I would treat this factor as neutral in determining whether I should grant the applicant an extension in time  to make his Court application.

Conclusion

1. The applicant’s delay in making his application to Court was short. Against this, however, I have found that the applicant has not provided a reasonable explanation for his delay. He knew his application was required to be filed in the Court on or before 4 April 2014. His reasons for not taking action to file his application after 28 April 2014 (when he was informed by the respondent that they did not accept the proposal to proceed by way of arbitration in the FWC) are not acceptable reasons.

2. The merits of his substantive claim are not such that I am persuaded that I should set aside what is, in my opinion, a failure by the applicant to provide a reasonable explanation for his delay. 

3. I am not positively satisfied that the application for an extension in time should be granted.

4. Accordingly, orders will be made refusing the application for an extension of time in which to make his general protections application to the Court.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  19 November 2014