Souben v Prost Group Pty Ltd
[2024] FedCFamC2G 731
•15 August 2024
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:
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.
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’).
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.
CONSIDERATION
Explanation 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.
I do not accept the Respondent’s submissions. While there are some gaps in the Applicant’s explanation for delay, the Applicant was not represented by a lawyer at the time of filing and continues to be self-represented. Given the quality of his written materials, it appears uncontroversial that English is his second language and that he is a migrant to these shores. It is in that context he has sought to navigate the legal system. I accept that the Applicant made multiple attempts to obtain legal advice prior to the statutory deadline, however, was unable to receive advice within the relevant timeframe. The delay in getting advice strikes me as unsurprising in this case, given not only the personal circumstances of the Applicant referred to above, but also noting the time at which the relevant events occurred. The Certificate was issued on 3 January 2024 and it is well accepted that many businesses and legal services providers close for periods of time in January.
On balance, the delay in filing was short, and the Applicant has an acceptable explanation for the delay in filing. These factors, therefore, weigh in favour of granting the extension of time.
Prejudice to the Respondent
The Applicant submits that the Respondent would not face any prejudice due to the late filing of the Application. Instead, the Applicant emphasises the significant prejudice he would face in the event he was deprived of having his Application heard.
The Respondent asserts various grounds of prejudice. I deal with each of them below.
First, the Respondent says that it is entitled, after the expiration of the 14-day statutory period, to assume finality to the claim. I reject this submission for two reasons. First, as I have set out above, the delay by the Applicant in filing of the Application is relatively short. Further, section 370(a)(ii) of the Act expressly gives the Court discretion to extend the time for filing. If the delay had been a long one, the Respondent’s submission may carry more weight, but it carries no weight in the circumstances of this case.
Second, the Respondent says it may have limited options for the recovery of costs in the event the Court finds that the Applicant instituted proceedings vexatiously or without reasonable cause. In proceedings under the Act, the general rule is that each party will bear their own costs. In some circumstances, the Court may award costs to a party if the circumstances set out in section 570(2) of the Act exist, however, the authorities make clear that the discretion within section 570(2) should be exercised cautiously and the case for its exercise should be clear: see Tucker v State of Victoria (No 2) [2021] VSCA 182; Ryan v Primesafe (No 2) (2015) 323 ALR 107 at [64]-[68]. Whether a proceeding has been instituted vexatiously or without reasonable cause is a matter that can only be determined at the conclusion of the proceeding. In the circumstances of this case, recovery of costs is not a matter that the Respondent can point to in order to claim prejudice.
Third, the Respondent submits that the delay, expenditure of costs and time spent responding to the proceedings needs to be considered by the Court in the context of the brief period of employment of the Applicant and the lack of merits in the claim. There is no weight in this submission. The Respondent has not identified any prejudice beyond that which occurs as the result of being a respondent to a proceeding.
The Respondent has not identified any real prejudice. I acknowledge that the mere absence of prejudice to the Respondent is an insufficient basis of itself to grant the Applicant an extension of time.
Merits of the Application
If the merits of the Application are viewed as having limited prospects of success, then that may impact on the Court’s assessment of the significance of other factors, including those conceded above: see Jennings v Salvation Army [2003] FCA 1193 at [27]. It would be futile to extend time where the Application has no merit and no real prospects of success: see Chou v Digital61 Pty Ltd [2021] FCA 640 at [23] (‘Chou’).
The Respondent submits that the Applicant does not have an arguable case.
The Applicant claims that the Respondent has breached section 340 of the Act. Section 340(1) of the Act provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
The term ‘workplace right’ is defined in section 341 of the Act.
In his affidavit, Mr Reddy states that he told the Applicant that ‘if you continue to speak to me like this than you can leave, meaning that his employment was terminated.’ I regard this as a concession by the Respondent that the Applicant’s employment was terminated. It is uncontentious that an employer terminating the employment of an employee amounts to adverse action.
The next issue is whether the Applicant has identified a workplace right. I have reviewed carefully the contents of the Form 2 and the attached claim document. The Applicant there gives an account of the events that led to his dismissal which involve, among other things, allegations of harassment and the subsequent interactions he had with his employer. Nothing in the Applicant’s account of events can be said to constitute to an identifiable workplace right that the Applicant had, had or had not exercised, proposed or proposed not to exercise, or that he was prevented from exercising. The highest the material gets is the assertion by the Applicant that he was trying to ‘exercise [his] workplace right to defend [himself], but it was refused.’ This is not a workplace right for the purpose of section 341 of the Act, nor can it be said to be an identifiable workplace right in the circumstances the Applicant outlines.
On the material, the Applicant has not identified any other workplace right. The Applicant does not have a discernible claim under section 340 of the Act.
Having regard to the above, there is little to no merit in the claim advanced by the Applicant. This weighs heavily against the granting of the extension of time, and I refer in particular to the comments in Chou at [23].
Fairness
Under this factor, the Court must consider fairness as between the parties themselves, and also take into account the public interest. It was submitted by the Applicant that the Respondent has breached a provision of the Act for a prohibited reason which is an action the Act intends to prevent, and the Respondent should therefore be held to account. The Respondent made no submission on this consideration.
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.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 15 August 2024
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