Weatherall v Synapse Australian Limited

[2018] FCCA 2698

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEATHERALL v SYNAPSE AUSTRALIAN LIMITED [2018] FCCA 2698

Catchwords:
INDUSTRIAL LAW – Commonwealth – Workplace rights and responsibilities – General protections – Procedure – Applications.

INDUSTRIAL LAW – Commonwealth – Workplace rights and responsibilities – General protections – Workplace rights – Adverse action – Dismissal.

Legislation:
Fair Work Act 2009, ss.361, 368

Applicant: CARLEY WEATHERALL

Respondent: SYNAPSE AUSTRALIAN LIMITED

File Number: BRG 368 of 2018

Judgment of: Judge Jarrett

Hearing date: 6 August 2018

Date of Last Submission: 6 August 2018

Delivered at: Brisbane

Delivered on: 6 August 2018

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondent:	Carter Newell Lawyers

ORDERS

1. The application for extension of time is dismissed.

2. The application filed on 13 April 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 368 of 2018

CARLEY WEATHERALL

Applicant

And

SYNAPSE AUSTRALIAN LIMITED

Respondent

REASONS FOR JUDGMENT

1. On 13 April, 2018 the applicant commenced proceedings for compensation for breach of the general protection provisions of the Fair Work Act 2009. In the action, she claims that the respondent, her employer, had dismissed her from her employment in contravention of the general protections provisions of the Fair Work Act and that entitled her to compensation.

2. The proceedings themselves, though, do not identify the respects in which the employer is said to have breached the general protections provisions of the Fair Work Act. All that is said in the application form 2 under the heading “Part G Contraventions Alleged” are the words “see attachment”. The only attachment filed with the application is one that says this:

   I was employed on a six months contract probation period until 23 April 2018.  I was dismissed on 12 January 2018.  I was working from 43 hours, rising to 75 hours on a fortnight roster.

3. The attachment goes on to talk about the way in which the applicant works out her compensation. Nowhere is the nature of the claim that is made by the applicant identified. As the respondent points out, under the Fair Work Act, an application such as that brought by the applicant here needs to be commenced within a certain timeframe. The timeframe is 14 days from the issue of a certificate under s.368 of the Fair Work Act. The application here was not issued within that timeframe, but was issued some 14 days later on 13 April, 2018.

4. The Court has the power to extend time if it thinks, in the circumstances of the case and in the interest of justice, it should do so.  The matters to be taken into account are well known.  The length of delay, the explanation for the delay, whether either party is going to suffer any prejudice and the merits of the proposed application are some of the factors to be taken into account. 

5. Here, the length of the delay is not very long.  It is only 14 days after the day in which the application ought to have been started, but there is really no explanation for the delay. 

6. The applicant has filed, as best as I can tell, three affidavits: one on 12 July, one on 13 July, and one on 16 July.  The affidavit on 12 July consists of one page which says this:

   On the day of ….. I had IT issues with the computer.  (2) the computer was not connecting to site.  (3) the Federal Court administration were not helpful as this was my first uploading documents. 

7. The affidavit filed on 13 July appears to be exactly the same as that one, in fact, the same document, but it has a second page which includes the jurat for the affidavit.  The affidavit filed on 16 July is, again, in the same form, but includes some additional pages and, in particular, the application that was seemingly filed – some additional pages which was an application which seemingly sought the extension of time on the second page of the application.  It seeks orders in these terms:

   Amend application form, request extension of time.  I had IT computer problems on my side. 

8. The respondent’s solicitor submits that there is really no explanation for the delay because the nature and extent of the problems, the reasons for them, how they occurred – the type of detail that one would expect to see – is completely absent here.  Moreover, to the extent that the applicant makes complaints about not being provided with assistance, there is no particularity to those complaints.  I agree with all of those submissions.  There is not the type of evidence that one would expect to see in support of an application for an extension of time. 

9. The applicant is a self-represented litigant and so due account ought to be taken of that, but she has had some assistance, it seems, from some organisations designed to provide legal assistance to self-represented litigants.  So one can expect that she has been given some advice about what she needs to demonstrate to the Court to secure an extension. 

10. Each of the factors are important, but often the cases dealing with extensions of time focus upon the merits of the claim that is to be pursued.  The merits of the case are generally seen as important.  Here, it is very difficult to form any positive view about the merits of the applicant’s case.  That is because she has filed no material that goes to the merits of her case.  Her application and the statement of claim form 2 provide no information about the nature or extent of her case, nor does it give any insight into the merits of it. 

11. The respondent has filed an affidavit which goes to the merits. It is an affidavit by Judy Gentle filed on 27 July, 2018. That affidavit sets out the employment circumstances for the applicant, and in it Ms Gentle deposes to difficulties that the respondent experienced with the applicant in the course of her employment. It culminates in evidence that the applicant’s employment was terminated for reasons the respondent contends do not breach the Fair Work Act.

12. There is evidence that suggests that the applicant had made complaints or inquiries regarding her employment and, in particular, there was an inquiry about the applicant’s pay and pay rate. There were inquiries about her payslips and a breakdown of how her pay was calculated, and there was an inquiry about the hours that she had worked for a particular fortnight. Employees generally have a workplace right for the purposes of the Fair Work Act to make a complaint or an inquiry about their employment, and an employer cannot take adverse action against an employee because an employee has exercised that workplace right to make a complaint or inquiry about their employment.

13. But, here, there is nothing to suggest that the adverse action, for that is what termination of one’s employment is under the Fair Work Act, has occurred because of the complaints or inquiries that the applicant has taken with the respondent about her employment. It is necessary to note that s.361 of the Fair Work Act essentially reverses the onus of proof and requires an employer to prove that the adverse action taken against an employee was taken for a reason other than a reason proscribed by the Act.

14. Even if the presumption is engaged in this case, the evidence of Ms Gentle would be sufficient to satisfy the Court that the presumption was rebutted.  There is just nothing from the applicant to support her case.  I cannot conclude that she has any prospects of success.  Indeed, the way in which she has explained her case, it sounds more like an unfair dismissal claim or a harsh and unfair dismissal claim, rather than an unlawful dismissal claim for breaching a general protection. 

15. In those circumstances, I am not satisfied that it would be in the interest of the administration of justice to grant an extension, and the application for the extension of time is refused.  Consequently, the application filed on 13 April 2018 is dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.

Date: 20 September 2018