Tandoegoak & Anor v Margeurite Gerard Pty Ltd - [2007] FMCA 621

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TANDOEGOAK & ANOR v MARGERUITE GERARD PTY LTD

[2007] FMCA 621

INDUSTRIAL LAW – Alleged unlawful termination – application to extend time to bring application – principles to apply – acceptable explanation for delay – representative error.

Workplace Relations Act 1996 (Cth), ss.659, 663, 665
Federal Magistrates Court Rules 2001

Brodie-Hanns v MTV Publishing Ltd [1995] 67 IR 298
Clark v Ringwood Private Hospital [1997] 74 IR 413
Telstra-Network Technology Group v Kornicki [1997] 140 IR 1
Davidson v Aboriginal Islander Carer Agency [1998] 105 IR 1
Malik v Paul Albert, Director General Department of Educations of Western Australia [2004] WASCA 51

First Applicant:

MELEK TANDOEGOAK

Second Applicant:

HEALTH SERVICES UNION

Respondent:

MARGERUITE GERARD PTY LTD

File number:

MLG 301 of 2007

Judgment of:

O'Sullivan FM

Hearing date:

10 April 2007

Date of last submission:

10 April 2007

Delivered at:

Melbourne

Delivered on:

10 April 2007

REPRESENTATION

Counsel for the Applicants:

Mr Campbell

Counsel for the Respondents:

No appearance

ORDERS

Pursuant to section 663(6) of the Workplace Relations Act 1996 the time be extended for the Applicants to file an application under section 663 for an order under section 665 claiming an alleged contravention of section 659 by the respondent.
The Applicants file and serve any amended application and affidavit in support within 2 days of the date of this order.
The matter be adjourned for directions to 27 April 2007 at 9.30 am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 301 of 2007

MELEK TANDOEGOAK

First named Applicant

And

HEALTH SERVICES UNION

Second named Applicant

And

MARGERUITE GERARD PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

By application filed 16 March 2007 the first and second named applicants (“the applicants”) seek that the Court, pursuant to section 663(6) of the Workplace Relations Act 1996 ("the Act"), extend the time to file an application in relation to the termination of the first applicant's employment by the respondent.
The application sought the following orders:
“1.That pursuant to section 663(6) of the Workplace Relations Act 1996 the first applicant has leave to apply to this Court in relation to the termination of her employment by the respondent pursuant to section 663(1) of the Workplace Relations Act 1996.
2.That pursuant to section 663(6) of the Workplace Relations Act 1996 the second applicant has leave to apply to this Court in relation to the termination of the employment of the first applicant by the respondent pursuant to section 663(3) of the Workplace Relations Act 1996.
3.That the said applications be made within two days of the date of this order.”
The applicants’ relied on the:
·     affidavit of Jeremy Smith sworn 16 March 2007;
·     affidavit of the first applicant sworn 2 April 2007;
·     affidavit of service of John Yianoulatos sworn 4 April 2007; and
·     affidavit of John Yianoulatos sworn 5 April 2007.
The application was listed for hearing today, 10 April 2007.

Mr Campbell appeared on behalf of the applicants. There was no appearance on behalf of the respondent.
At the commencement of the hearing Mr Campbell advised the Court that he was instructed there would be no appearance by or on behalf of the respondent.
In support of their submission that the matter should proceed the applicants relied on the affidavit of service of Mr Yianoulatos and Rule 6.06(2)(a) of the Federal Magistrates Court Rules 2001.
It was submitted the respondent had been served and that it was appropriate to proceed with the application to extend time in the respondent’s absence.
Rule 6.06(2) of the Federal Magistrates Court Rules 2001 provides:
“(2)However, service by hand is not required if:
(a)there are current proceedings for which there is a notice of address for service for the person to be served; or
(b)the Court directs that an application may be served in another way; or
(c)a lawyer accepts service for a party and subsequent files an address of services; or…”
It was submitted that exhibit “JY1” to the affidavit of Mr Smith exhibited the Notice of Appearance filed on behalf of the respondent in the proceedings before the Australian Industrial Relations Commission (“the Commission”). That notice indicates Mr Rahilly, barrister, appeared on behalf of the respondent before the Commission.
It was submitted that the matter should proceed given that in the affidavit of service Mr Yianoulatos deposed to service of the application in these proceedings on Mr Rahilly on behalf of the Respondent.
In the affidavit of service Mr Yianoulatos deposed to the following conversation with Mr Rahilly:
“I asked Michael Rahilly whether he was still acting for Marguerite Gerrard Ltd t/as Radford Private Nursing Home to which he replied ‘Yes’. I then asked ‘Are you in a position to accept service of Court documents on behalf of the Respondent’. He replied ‘Yes’.”
By reason of the above the Court was satisfied that it was appropriate to proceed to deal with the application filed

16 March 2007 in the absence of the respondent.

Background

The background to these proceedings, drawn from the affidavit material before the Court, is set out in the following chronology:

15 December 1998	Applicant starts employment with Respondent
13 January 2007	Applicant’s last shift worked
15 January 2007	Letter from Respondent terminating applicant’s employment
17 January 2007	Applicant attends work told of termination and receives letter of termination
19 January 2007	Applicant goes to HSU to file application with Commission.
31 January 2007	Respondent files Notice of Appearance in Commission
12 February 2007	Commission Conciliation Conference
23 February 2007	Certificate from Commission (Gay.C)
26 February 2007	HSU instructed to file Notice of Election with Commission and does so.
7 March 2007	HSU briefs barrister
14 March 2007	Barrister realises application to Court must be made 14 days after Notice of Election (i.e. 13 March) (affidavit of Mr Smith paragraph 2-7)
16 March 2007	Application filed.

Approach to application

The affidavit material filed by the applicants made clear that in accordance with section 650 of the Act a ‘Certificate Stating Commission Is Satisfied Conciliation Unsuccessful’ was issued on 23 February 2007 (attached to the affidavit of Mr Smith).
The certificate having issued section 651 of Act provides for a notice of election to proceed to arbitration or to begin Court proceedings to be filed with the Commission. The section states that:
“(1) If the certificate given by the Commission under subsection 650(2) identifies only the ground referred to in paragraph 643(1)(a) as a ground where conciliation is, or is likely to be, unsuccessful, the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed.
Note: If a certificate under subsection 650(2) identifies both the ground in paragraph 643(1)(a) and a ground or grounds of an alleged contravention of Subdivision C, and the Commission has issued a certificate under subsection 650(4) in relation to the ground in paragraph 643(1)(a), an applicant must make an election as if the certificate under subsection 650(2) identified only the ground or grounds in Subdivision C.
(2) If the certificate given by the Commission under subsection 650(2) identifies only:
(a) the ground referred to in paragraph 643(1)(a); and
(b) the ground of an alleged contravention of section 661;
as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both, or neither of the following:
(c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
(d) to begin proceedings in a Court of competent jurisdiction for an order under section 665 in respect of the alleged contravention of section 66.
(3) If the certificate given by the Commission under subsection 650(2) identifies:
(a) the ground referred to in paragraph 643(1)(a); and
(b) a ground or grounds of an alleged contravention of one or more of sections 659 and 660;
as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either or neither of the following:
(c) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
(d) to begin proceedings in the Court for an order under section 665 in respect of the alleged contravention, or of any one or more of the alleged contraventions.
(4) If the certificate given by the Commission under subsection 650(2) identifies only a ground or grounds of an alleged contravention of one or more of sections 659, 660 and 661 as the ground or grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect to do either, both or neither of the following:
(a) so far as concerns an alleged contravention of a section or sections other than section 661--to begin proceedings in the Court for an order under section 665 in respect of the alleged contravention, or of any one or more of the alleged contraventions;
(b) so far as concerns an alleged contravention of section 661-to begin proceedings in a Court of competent jurisdiction for an order under section 665 in respect of the alleged contravention.
(5) If the certificate given by the Commission under subsection 650(2) identifies:
(a) the ground referred to in paragraph 643(1)(a); and
(b) the ground of an alleged contravention of section 661; and
(c) a ground or grounds of an alleged contravention of one or more of sections 659 and 660;
as grounds where conciliation is, or is likely to be, unsuccessful, the applicant must elect:
(d) to do either or both of the things permitted in subsection (2); or
(e) to do either or both of the things permitted in subsection (4); or
(f) to do none of those things.
(6) An election under subsection (1), (2), (3), (4) or (5) must:
(a) be made in writing; and
(b) be lodged with the Commission:
(i) if the certificate given by the Commission under subsection 650(2) identifies the ground of an alleged contravention of section 659 as a ground on which conciliation is, or is likely to be, unsuccessful (whether or not one or more other grounds are so identified)--not later than 28 days after the day of issue of the certificate; or
(ii) in any other case--not later than 7 days after the day of issue of the certificate.
(7) If an applicant fails to lodge with the Commission an election under subsection (1), (2), (3), (4) or (5) within the period required under subsection (6), the application concerned is taken to have been discontinued by the applicant at the end of that period.
(8) The Commission must not, under any provision of this Act, extend the period within which an election is required by subsection (6) to be lodged, other than as mentioned in subsection (9).
(9) The Commission may accept an election referred to in subparagraph (6)(b)(i) that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7).
(10) An appeal to a Full Bench under section 120 may not be made in relation to the discontinuance of an application under subsection (7).”
On the material filed in this matter, I am satisfied the election was made and a copy is exhibit “JY2” to the affidavit of Mr Yianoulatos. Section 663 provides that an application can be made to the Court in relation to an alleged contravention of sections 659, 660 or 661.
The certificate referred to above identified an alleged contravention of section 659 as a ground on which the Commission (by virtue of that certificate) was satisfied all reasonable attempts to settle the matter have been or are likely to be unsuccessful. The proposed application (by way of a statement of claim) alleges a contravention of section 659 (2) of the Act which provides:
“(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury within the meaning of the regulations;
(b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;
(c) non‑membership of a trade union;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;
(h) absence from work during maternity leave or other parental leave;
(i) temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.”
The current application is brought pursuant to section 663 of the Act which provides:
“(1) Subject to subsection (5), an employee may apply under this section to the Court for an order under section 665 in respect of an alleged contravention of one or more of sections 659 and 660 by his or her employer.
(2) Subject to subsection (5), an employee may apply under this section to the Court or to an eligible Court as defined in section 717 for an order under section 665 in respect of an alleged contravention of section 661 by his or her employer.
(3) Subject to subsection (5), a trade union that has made an application under section 643 on behalf of an employee on the ground of an alleged contravention of one or more of sections 659 and 661 may apply to a Court under this section for an order under section 665 in respect of that alleged contravention or each of those alleged contraventions.
(4) Subject to subsection (5), an inspector, a trade union, or a trade union officer or employee who has made an application under section 643 in respect of an alleged contravention of section 660 may apply to the Court under this section for an order under section 665 in respect of that alleged contravention.
(5) An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 659, 660 or 661 may not be made to a court unless the applicant:
(a) has received a certificate under subsection 650(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and
(b) has elected under section 651 to begin proceedings in that Court for an order under section 665 in respect of the alleged contravention.
(6) The application must be made within 14 days after the lodgement of an election under subsection 651(6), or within such period as a Court allows on an application made during or after those 14 days. (emphasis added)
The following note appears at the end of section 663 of the Act:
“Note: 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.”
Those principles, set out by Marshall J, in Brodie-Hanns v MTV Publishing Limited [1995] 67 IR 298 (“Brodie-Hanns”) at page 299 were:
“(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 for the delay which makes it equitable to extend.
(2)Action taken by the Application 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.”
In support of the submission (that there is an acceptable explanation for the delay in this matter) the applicants rely on the error of their representative referred to in the affidavit of Mr Smith.
They also relied on the decision of Clark v Ringwood Private Hospital (1997) 74 IR 413, (“Clark”) which it was submitted provides guidance on the relevance of representative error in extension of time cases.
In Clark the Commission (at page 418) set out the following guidelines to be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:
“1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
2.A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
3.The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application.
For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps in inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
4.Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8).”
That case concerned provisions of the Act as it was formulated prior to the amendments made to the Act on 27 March 2006.
The guidelines set out in Clark were applied in that context in relation to applications to the Commission for extension of time.
However, I accept that section 663(6) of the current Act is in similar terms to the former provision section 170CE (7) which applied in relation to filing unfair or unlawful termination claims with the Commission. (see also: Telstra-Network Technology Group v Kornicki [1997] 140 IR 1 and Davidson v Aboriginal & Islander Care Agency [1998] 105 IR 1).
In this case, the reason advanced by the applicants for the delay is an error by their representative. Given the provisions of section 663(6) it is appropriate to consider the application by reference to the principles in Brodie-Hanns. In relation to at least the first of those principles, set out above (whether there is an acceptable explanation for the delay), I intend to do so mindful of the guidelines set out in Clark.

Consideration

I now turn to consider this application in the context of the principles set out in Brodie-Hanns:

Acceptable explanation

The primary position set out in section 663 is that the time limit should be complied with. As set out in Clark it falls to the applicants to persuade the Court to exercise the discretion in their favour.

In this case the error of the barrister provides an adequate explanation for the delay.
Had Mr Smith not confused the time periods the application would have been filed within specified time set out in section 663 of the Act. The affidavit of Mr Smith makes this clear.

Action taken by the applicant

The affidavit of the first applicant makes clear she took steps to actively contest the termination almost as soon as it occurred.

She acted in a timely manner throughout the proceedings in the Commission, provided instructions to file the notice of election and to have proceedings brought in this Court in relation to alleged unlawful termination. I am satisfied that the delay in making the application to this Court was by reason of representative error and not due to any in action or fault by the first applicant.

Prejudice to the respondent

Having regard to the period of delay in this case (i.e. 3 days)

I accept, as was submitted by on behalf of the applicants, that it is unlikely there would any prejudice to the respondent. On the basis of the material contained in the affidavits referred to above the respondent was aware the termination was being contested.
The application to extend time was filed only 3 days beyond the

14 days mentioned in section 663(6) and in the circumstances, I am not satisfied this would weigh against granting the extension.
There is also the issue that had the first applicant taken the full

28 day period allowed for in section 651(6)(b)(i) of the Act to lodge the notice of election after receipt of the Commission’s certificate (i.e. until 23 March 2007) the 14 day period would not have expired until tomorrow 11 April 2007.

Absence of prejudice to respondent

As was noted in Brodie-Hanns the mere absence of prejudice to the respondent is an insufficient basis to grant an extension.

However, that is not the only issue here for the reasons set out above.

Merits of substantive application

In accordance with section 663(6) the application should have been filed by 13 March 2007.
It was submitted that the affidavit of the first applicant which set out her absences from work (referred to at paragraphs 9-14) coupled with the notice of termination (exhibit MTD to the same affidavit) show that her claim that her employment was terminated in breach of section 659(2) of the Act is not without merit (see Davidson v Aboriginal & Islander Child Care Agency (supra)).
In considering the merits of the application it is relevant to consider the provisions of section 664 which provides:
“ In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a prescribed reason) set out in a paragraph of subsection (2) of that section:
(a)it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b)it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).”
The Court is cognisant of the reverse onus of proof contained in section 664 of the Act. As such, it is not possible to say that the application is without merit.

Considerations of fairness

The Court must weigh considerations of fairness as between the applicant, the respondent and also take into account the public interest (see Malik v Paul Albert, Director General Department of Education of Western Australia [2004] WASCA 51 (1 April 2004)). There is nothing to indicate that this last factor, as set out in Brodie-Hanns, weighs against this application.

Conclusion

The Court has taken into account the following:
i)the fact that the time involved is only three days;
ii)the principles set out in Brodie‑Hanns; and
iii)the reason for the delay against the guidelines set out in Clark.
In accordance with section 663(6) I am satisfied it is appropriate to extend time for application.
I will make the orders as set out at the beginning of these reasons in accordance with the application filed 16 March 2007.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM

Deputy Associate: Rachelle Lombardo

Date: 16 April 2007