Souben v Prost Group Pty Ltd

Case [2024] FedCFamC2G 731

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Souben v Prost Group Pty Ltd [2024] FedCFamC2G 731

File number: MLG 330 of 2024
Judgment of: JUDGE BLAKE
Date of judgment: 15 August 2024
Catchwords: INDUSTRIAL LAW – Application for extension of time for general protections claim – relevant factors considered – reasonable explanation for delay – substantive claim has no merit – extension of time refused – remaining claims referred for case management.  
Legislation:

Fair Work Act 2009 (Cth) ss 340, 340(1), 341, 365, 368, 370(a), 370(a)(ii).

Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) r 2.05(3)(b).  
Cases cited:

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Chou v Digital61 Pty Ltd [2021] FCA 640

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jennings v Salvation Army [2003] FCA 1193

Ryan v Primesafe (No 2) (2015) 323 ALR 107

Tucker v State of Victoria (No 2) [2021] VSCA 182
Division: Division 2 General Federal Law
Number of paragraphs: 35
Date of hearing: On the papers
Place: Melbourne
Solicitor for the Applicant: Self-represented litigant
Solicitor for the Respondent: Alphastream Lawyers

ORDERS

MLG 330 of 2024
BETWEEN:

PAUL GILLES JACQUES MARIE SOUBEN

Applicant
AND:

PROST GROUP PTY LTD

Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

15 AUGUST 2024

THE COURT ORDERS THAT:

1.In respect of the Application filed 15 February 2024 (‘Application’), the Applicant’s application to extend time to file a general protections claim be refused.

2.The remaining claims in the Application be referred to a Registrar of this Court for further case management on a date to be advised.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

  1. The Applicant filed an application in this Court on 15 February 2024 (‘Application’). In the Application, the Applicant (who is unrepresented) claims the Respondent contravened section 340 of the Fair Work Act 2009 (Cth) (‘Act’). The Application was filed outside the required 14-day time frame set out in section 370(a)(ii) of the Act. The Applicant, therefore, seeks leave to proceed out of time with the Application.

  2. The Applicant has given a detailed statement of the events that transpired between himself and the Respondent, however, a careful analysis of the claims does not disclose a relevant general protections cause of action. For the reasons that follow, I have decided to refuse the application to extend time for filing of the general protections claim, but refer the remaining claims to a Registrar of this Court for further case management.

    BACKGROUND

  3. The Applicant was…

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AGLC
Souben v Prost Group Pty Ltd [2024] FedCFamC2G 731
Case
[2024] FedCFamC2G 731
Decision Date

CaseChat Overview and Summary

In the matter of Souben v Prost Group Pty Ltd, the applicant sought an extension of time to file a general protections claim after the Fair Work Commission issued a certificate confirming that attempts to resolve the dispute had been unsuccessful. The applicant, who was employed by the respondent from 25 October 2023 to 31 October 2023, alleged that he was dismissed in contravention of a general protections provision under the Fair Work Act 2009. The application was filed 29 days out of the statutory time limit, which is 14 days after the issuance of the certificate. The court had to determine whether the applicant had provided a reasonable explanation for the delay and whether it was just and equitable to extend the time limit.

The court considered various factors in determining whether to grant the extension of time. These included the length and explanation for the delay, the action taken by the applicant to contest the termination, the prejudice to the respondent, and the merits of the substantive application. The applicant provided several reasons for the delay, including difficulties in securing legal assistance, language barriers, and financial constraints. However, the court found that the applicant's explanation for the delay was not credible, as he had made an application to both the court and the FWC without legal assistance, affirmed his affidavit without the assistance of an interpreter, and filed an outline of submissions that appeared to reflect a sufficient command of English.

The court also considered the merits of the substantive application, which was found to have no merit. The applicant had identified section 340 of the Fair Work Act 2009 as the relevant provision, but the court found that the application did not disclose a relevant general protections cause of action. The court held that the refusal of the extension of time was not unfair to the parties or the public at large when it had been established that the application had no merit.

The court dismissed the application to extend time for the filing of the general protections claim but referred the remaining claims to a Registrar of the Court for further case management. The remaining claims potentially included an entitlement to one week's notice of termination that was not provided and an entitlement to the correct rate of pay while employed. These claims were not caught by the time limit within section 370(a) of the Act, and the parties had not had an opportunity to address the court on these matters. The court held that the most appropriate course was to dismiss the application to extend time for filing of the general protections claim but refer the remaining claims to a Registrar of the Court for further case management.

The court held that the refusal of the extension of time was not unfair to the parties or the public at large when it had been established that the application had no merit. The court found that the applicant's explanation for the delay was not credible, and the merits of the substantive application were considered. The court held that the most appropriate course was to dismiss the application to extend time for filing of the general protections claim but refer the remaining claims to a Registrar of the Court for further case management.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant has given a detailed statement of the events that transpired between himself and the Respondent, however, a careful analysis of the claims does not disclose a relevant general protections cause of action. For the reasons that follow, I have decided to refuse the application to extend time for filing of the general protections claim, but refer the remaining claims to a Registrar of this Court for further case management.BACKGROUND The Applicant was employed by the Respondent from 25 October 2023 to 31 October 2023. On or around 17 November 2023, the Applicant filed an application with the Fair Work Commission (‘FWC’), alleging he was dismissed in contravention of a general protections provision. Following an unsuccessful conciliation conference on 3 January 2024, the FWC issued a certificate pursuant to section 368 of the Act confirming that attempts to resolve the dispute had been unsuccessful (‘Certificate’). On 15 February 2024, the Applicant filed the Application which comprises the Form 2 and the Certificate. Form 2 is a Court form for ‘Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection’. In Part G of Form 2, where an applicant is invited, inter alia, to set out the grounds relied on by reference to specific provisions in the Act, the Applicant attached a document setting out his claim. That document prepared by the Applicant identified ‘s.340’ of the Act. On 5 March 2024, Registrar Hird made orders adjourning the application for an extension of time to a Judge of this Court, with such hearing to be determined on the papers. The matter was allocated to another Judge of this Court, before being allocated to me to determine on 26 June 2024. The Applicant relies on the Application, an outline of submissions filed 28 March 2024 and an affidavit of the Applicant filed 28 March 2024. The Respondent relies on an outline of submissions filed 16 April 2024 and an affidavit of Kanchan Ashock Reddy (‘Mr Reddy’), the director of the Respondent, filed 16 April 2024. LEGAL PRINCIPLES Section 370(a)(ii) of the Act requires that an application in this Court be commenced within 14-days after the day the Certificate is issued by the FWC, or within such a period as the Court allows. Specifically, section 370(a) provides as follows: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; … The types of matters that the Court will ordinarily take into account in situations where an extension of time is needed are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (‘Brodie-Hanns’).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider the refusal of the extension of time is unfair to the parties or the public at large when it has been established that the Application under section 340 has no merit. CONCLUSION REGARDING GENERAL PROTECTIONS APPLICATION Taking into account the considerations outlined above, I am not satisfied, in the circumstances, that it is appropriate to grant the Applicant an extension of time, pursuant to section 370(a)(ii) of the Act, to permit the Applicant to file a general protections claim out of time. \The application to extend time for the filing of such claim is dismissed.OTHER MATTERS In the course of the Application and the Form 2, the Applicant on one reading of the Form 2, which is most favourable to him, could also be regarded as making two other claims. These claims are, potentially, that he was entitled to one weeks' notice of termination that was not provided, and that he was not paid the correct rate of pay whilst employed. These claims, to the extent they are advanced, are not caught by the time limit within section 370(a) of the Act. The parties have had no opportunity to address me on these matters. In the circumstances, the most appropriate course is for me to make orders dismissing the application to extend time for filing of the general protections claim, but refer the remaining claims identified above to a Registrar of this Court for further case management.

Ratio Decidendi

Legal Principle Established

In Brodie-Hanns, Justice Marshall identified the following factors, at 299-300, that the Court will frequently have regard to in determining extension of time applications:1.Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.2.Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of 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. CONSIDERATIONExplanation and Length of the delay The Applicant lodged the Application with the Court on 12 February 2024. The Application was accepted for filing on 15 February 2024. The Application is therefore 29-days out of time. The delay in filing was a short one. The Applicant’s explanation for the delay is set out in his affidavit. In summary, his evidence is as follows:(a)He was informed by the FWC that the next step after receiving the Certificate was to apply to the Court;(b)He immediately contacted Legal Aid who referred him to South-East Monash Legal Service where he got an appointment on 16 January 2024;(c)South-East Monash Legal Service did not provide him with advice on how to proceed with his application;(d)His maternal language is French (and I infer given this statement and his written materials that English is his second language);(e)He is in a very hard financial situation and therefore could not afford to pay for legal representation; and (f)The only legal aid service who was able to assist to him was Justice Connect and their first available appointment was on 6 February 2024. Following his appointment with Justice Connect, he filed the Application. The Respondent submits that the Applicant’s explanation for delay is not credible for the following reasons. First, the Applicant made an application to both the Court and FWC without legal assistance, affirmed his affidavit without the assistance of an interpreter and filed an outline of submissions, albeit with the input of a legal advisor, that appeared to reflect a sufficient command of English. Second, the Applicant acted complacently in seeking legal assistance following the issuance of the Certificate which led to the delay. Third, even if the Court accepts that it was reasonable for the Applicant to wait to receive legal advice prior to filing his Application, the Application was dated 6 February 2024 and not lodged until 12 February 2024, and the Applicant proffers no explanation for this additional delay.