Slade v North Coast Multi Trade Pty Ltd
[2014] FCCA 1164
•26 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SLADE v NORTH COAST MULTI TRADE PTY LTD | [2014] FCCA 1164 |
| Catchwords: INDUSTRIAL LAW – Termination of employment – unfair dismissal. PRACTICE & PROCEDURE – Extension of time – delay – filing of general federal law documents in family law registry – extension of time allowed. |
| Legislation: Fair Work Act 2009 (Cth) ss.340, 341, 369, 370, 371 |
| Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Ejueyitsi v Bond University [2012] FCA 1514 Taj v Western Health [2013] FCA 1226 |
| Applicant: | AMANDA SLADE |
| Respondent: | NORTH COAST MULTI TRADE PTY LTD |
| File Number: | BRG 1030 of 2013 |
| Judgment of: | Judge Burnett |
| Hearing date: | 26 February 2014 |
| Date of Last Submission: | 26 February 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 26 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | SP Lawyers |
| Solicitors for the Respondent: | Stacks The Law Firm |
ORDERS
That the time for commencing the Applicant’s application be enlarged to 5 November 2013.
That the matter be listed for mention at 9:30am on 12 March 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1030 of 2013
| AMANDA SLADE |
Applicant
And
| NORTH COAST MULTI TRADE PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 5 November 2013 the applicant commenced this application seeking relief against the respondent, alleging unfair dismissal and contravention of a general protection. Her complaint had been unsuccessfully progressed through the processes provided by Fair Work Australia 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 10 October 2013 Fair Work Australia issued a certificate pursuant to s.370. Section 370 relevantly provides:
“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.”
Section 371(2) is headed “Time for application.” It provides:
“Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.”
The s.369 certificate having issued on 10 October 2013, the applicant ought to have commenced her application on or before 25 October 2013. In fact, she commenced on 5 November 2013; that is, about 11 days late. She now seeks by application pursuant to s.371(2) an enlargement of time to commence the application. That application is opposed by the respondent.
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 FW Act in Taj v Western Helath [2013] FCA 1226. In Brodie-Hanns v MTV Publishing Limited, Marshall J briefly stated the principles as being:
“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the [Workplace Relations Act 1996 (Cth)] will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
I turn then to the first point which concerns the explanation for delay. The solicitor for the applicant states that after the conclusion of the conciliation conference before Fair Work Australia and the issue of the s.369 certificate he prepared an application for the Court on 22 October.
That is well within the time which ordinarily ought to have been sufficient for its presentation to the Court’s registry. He says that on 23 October he believed that he sent both forms, that is, the Form 1[1] and the Form 2[2] to the Lismore registry of the Federal Circuit Court of Australia. He says that he was unaware that the application form had not been sent and that only the Form 2 had been sent to that registry. He states that on about 25 October he received advice from the Lismore registry that the claim had been received on 24 October. He has exhibited an acknowledgement of that receipt.
[1] Application – Fair Work Division.
[2] Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection.
He says that subsequently on 30 October he received a telephone call from the Brisbane registry of the Court informing him that only the Form 2 and not the application had been received. He says that he immediately then posted the application to the Brisbane registry; that is, I assume, the application of 5 November. It seems obvious that there has been some element of human error involved. In part that is because of the solicitor’s failure to include the Form 1 application but also due to processes which it seems have been clumsily attended to between the various registries of the Court.
The respondent, for instance, notes that the registry in Lismore is a Family Court registry. No doubt that has occasioned some difficulty in the transmission of the relevant forms and applications. It is likely that an officer in the Family Court registry would be unfamiliar with Federal Court forms, and accordingly would not have recognised the absence of the Form 1 application essential to initiate the proceeding. Furthermore, it seems that once the matter arrived in Brisbane the documentation was deposited in the Family Court registry rather than the Federal Court registry, which has resulted in further delay.
I should point out for the benefit of the parties that the general federal law division of the Federal Circuit Court operates through the Federal Court registry, which has an electronic filing portal; had that portal been used these difficulties would not have arisen. In any event, this difficulty between the federal and family law registries of this Court is not unique, as is apparent from the decision in Ejueyitsi v Bond University [2012] FCA 1514. That matter was considered by Logan J in another context, however, a preliminary point in that application concerned the question of delay occasioned by difficulties between the federal and family law registries of the Commonwealth courts.
Logan J noted in that judgment that notwithstanding the best intentions of the parties there had been difficulties involved between registries which he described as “human error” and which appear to have intruded on the process.[3] It seems to me that this is exactly what has happened here. The applicant sought to file the application in a timely manner. If her solicitors had been in Brisbane and had been able to send a clerk down to the registry these difficulties would have been highlighted at an early stage, as the failure to include the Form 1 would have been identified then, for the registry would not have received the application without the Form 1 being presented. Further, the issue concerning the difficulties between the family and federal law registries would not have been arisen because the applicant would simply have proceeded to the Federal Court registry for filing, and the matter would have proceeded seamlessly from that point.
[3] See generally his observations at [13].
It follows that I think there is a more than satisfactory explanation for these difficulties. That factor favours the applicant and makes it equitable that the application ought be favourably considered.
The next consideration is other action taken by the applicant. I have already noted the history of the matter. It is plain that the parties are in dispute. The applicant has left the respondent in no doubt that it is actively pursuing this dispute and to that end she has instructed solicitors who have acted in a timely manner upon her instructions.
The next question is that of prejudice. The respondent contends that it is prejudiced or likely to be prejudiced because of the costs involved in responding to the application. That is, of course, a factor that is evident in any legal proceeding. While I am cognisant of the prejudice that responding to an application involves, that factor of itself is not determinative. Aside from that, there could be no procedural prejudice contended for by the respondent which I think outweighs the balance in favour of the applicant. I accept that the mere absence of prejudice to the respondent is not of itself an insufficient basis to grant the extension of time.
Next follows the question of the merits of the substantive application. The respondent contends that the substantive application has no merits. In particular, it submits that, having regard to the matters set out in the claim in Part G of the Form 2, the applicant’s actual claim against the respondent is at best that her termination was unfair, harsh or unjust.
In Part G the respondent complains that there was a contravention of s.340 of the Act in that the respondent took adverse action against her by dismissing her for proposing to exercise a workplace right. She contends that she was not afforded a workplace right, namely the right to rest breaks and adequate lunch breaks. She says that she made several requests to clarify these short breaks and was told that she should work through lunch and was not given an option to take any rest breaks. She says that she was only able to take a maximum of 15 minutes for lunch before being directed to resume work.
She says that subsequently on the day that she raised the issue for the third time she was dismissed without any adequate reason or without a warning or any written documentation. While it might be, as the respondent says, that the Part G presently lacks any further particularisation, the fact remains that there is an arguable case that this conduct, if proven, would establish an actionable contravention of Division 3 of Chapter 3 Part 3-1 of the Act.
It seems from the matters which are claimed in Part G that the applicant complains not only of her actual workplace right to rest breaks, but perhaps also arguably of her workplace right provided for by s.341(1)(c), which is the right to make a complaint or inquiry in relation to her employment. If it can be established that she was dismissed because of an attempt to exercise her workplace right(s) she has an actionable claim.
At this stage the matter is simply one which is alleged. There is no evidence to support it, and no doubt those matters will flow if the application proceeds, but in any event, I do not accept the applicant cannot currently at least contend the bare bones of an application necessary to demonstrate an entitlement to pursue the matter further.
The respondent also contends that the proceedings are unlikely to succeed. It contends that:
“… there is no direct evidence to support the Applicant’s allegation that the Respondent terminated her employment because she enquired about her work breaks.”
That is, respectfully, not to the point. They are matters which will, and can only, be resolved upon hearing the evidence. It is, of course, quite possible for a Court to act upon circumstantial evidence such as the temporal relationship between the applicant’s complaints and the giving of notice. However, they are matters that need to be further explored.
Finally, the Court needs to adopt an overall consideration of the fairness as between the applicant and another person in a like position. Although this matter does not provide much assistance to the resolution of the substantive issue, as a matter of general fairness I think it would be unfair to deny an applicant who appears to have a proper claim a basis for claim because of difficulties that arose in the course of her interaction with the Court’s registry.
In the circumstances, this is an appropriate case to exercise the Court’s discretion to extend time and I will so order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 5 June 2014
0
3
3