Wedderburn v Yamatji Southern Regional Corporation Limited
[2022] FedCFamC2G 918
Federal Circuit and Family Court of Australia
(DIVISION 2)
Wedderburn v Yamatji Southern Regional Corporation Limited [2022] FedCFamC2G 918
File number: PEG 145 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 8 November 2022 Catchwords: INDUSTRIAL LAW – application for an extension of time to file general protections application under the Fair Work Act 2009 (Cth) – extension of time granted Legislation: Fair Work Act 2009 (Cth) ss 340, 368, 369, 370 Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 23 September 2022 Date of hearing: On the papers Applicant: In person Solicitor for the Respondent: MinterEllison ORDERS
PEG 145 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALLAN LESLIE WEDDERBURN
Applicant
AND: YAMATJI SOUTHERN REGIONAL CORPORATION LIMITED
Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
8 November 2022
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) (Fair Work Act), the time in which the applicant may make a general protections court application in relation to the dispute referred to in the certificate issued by the Fair Work Commission under s 368 of the Fair Work Act on 7 July 2022 is extended to 26 July 2022.
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 LADHAMS:
INTRODUCTION
I have before me an application for an extension of time to commence a general protections court application under the Fair Work Act 2009 (Cth) (Fair Work Act). The applicant was formerly employed by the respondent as a General Manager and for a very brief time was the Acting Chief Executive Officer of the respondent. The applicant’s employment was terminated by the respondent on 12 April 2022.
On 26 July 2022 the applicant filed a general protections court application and Form 2 in this Court. Attached to that Form 2 was a certificate issued by the Fair Work Commission under s 368(3)(a) of the Fair Work Act on 7 July 2022. Section 370(a)(ii) of the Fair Work Act requires that any general protections court application be made within 14 days after the day the certificate is issued, or within such further period as the Court allows. In the present case, the 14 day period for the applicant to file his general protections court application ended on 21 July 2022.
The applicant was five days late in filing his general protections court application and therefore requires an extension of time, which he has sought in his application to the Court. I made directions for the parties to file any affidavits and submissions addressing the extension of time application and, at the request of the parties, I have determined the extension of time application on the papers without an oral hearing.
Documents before Court
I have before me the application and Form 2 filed by the applicant on 26 July 2022, and both parties’ written submissions addressing the extension of time application.
The applicant also filed an affidavit on 15 September 2022. The respondent objected to some paragraphs of that affidavit. Most of the objections have been resolved between the parties, but there is one outstanding objection to be determined. The respondent claims that paragraph 14, relating to the applicant being contacted by a WorkSafe Inspector for an interview in relation to an investigation, is irrelevant and prejudicial. I have had regard to the objection and the applicant’s response and I find that paragraph 14 of the applicant’s affidavit is irrelevant to the issues to be considered in the extension of time application. It is therefore inadmissible. I have otherwise had regard to the affidavit.
Relevant principles
In determining extension of time applications under s 370 of the Fair Work Act, the Court will frequently have regard to the principles set out in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns) at 299-300, namely:
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 of the principles as they apply to this matter
Explanation of the delay
The applicant’s explanation for the delay, as set out in his affidavit, can be summarised as follows:
(a)He was on an overseas holiday from 24 June 2022. Between 26 June 2022 and 17 July 2022, he had reliable phone reception and internet coverage.
(b)He received the s 368 certificate on 7 July 2022 and became aware that any general protections court application would need to be filed by 21 July 2022. From 7 July 2022, he researched and considered various matters relevant to filing an application. As part of this research, on 8 July 2022 he unsuccessfully attempted to access a link on the Court’s website. He made enquiries of the Court on 9 July 2022 and received a response from the Court on 12 July 2022 advising that the referenced web page was currently unavailable and providing alternative links.
(c)From 17 to 21 July 2022 he was in a location which had no telephone reception and internet coverage which was extremely poor. This made it difficult for him to research and file his application.
(d)On 21 July 2022, the day his application was due, he travelled to another destination which had both telephone and internet reception. On this day, he attempted to file his application and supporting documents on the Court portal, but was unable to do this. He learned that he needed to register to use the portal and access was not immediate.
(e)On 22 July 2022 he telephoned the Court registry. The Court staff confirmed that his Form 2 could not be uploaded onto the portal and gave him an email address that he could use to lodge his application.
(f)On 22 July 2022 he attempted to lodge his application by email. On 25 July 2022 he received an email from the registry advising that his application was not accepted for filing because it did not include an application for an extension of time. He was unable to amend and resubmit the application on that day because he was travelling. He amended and filed the application and supporting documents the following day when he arrived in Darwin.
The respondent submitted that the explanation for the delay is inadequate for the following reasons:
(a)The applicant presumably was aware that he would be travelling overseas from 24 June 2022 and could have started preparing his application from 8 June 2022 when it was clear that the matter had not resolved at the conciliation conducted by a Fair Work Commissioner.
(b)The applicant had ample time to prepare and file the application given that he was on holiday for the whole of the 14 day period from the issue of the s 368 certificate.
(c)The application to the Court does not include any additional relevant details or better particularised claims than those included in his application to the Fair Work Commission, suggesting that he did not have to do much additional work to prepare and file his general protections application to the Court.
(d)The applicant could have prepared his application prior to receiving the s 368 certificate and prior to his holiday. It was his own failure to progress the preparation of the application to the Court and to consider ahead of time what steps he needed to take to file it that resulted in his application being filed out of time.
I am satisfied that the applicant has provided an adequate explanation for a delay of five days in filing his general protections court application. The applicant’s evidence suggests that he took steps to file his application in a timely manner and attempted to file his application on the day it was due. The lateness of the application was primarily caused by the applicant not understanding that he needed to register to use the Commonwealth Courts Portal the day before he attempted to use it to file his application. This is an understandable error, and the applicant then contacted the registry and made further attempts to file an application as soon as reasonably practicable.
Action taken by the applicant to contest the termination
The applicant has not expressly addressed this consideration in his submissions.
The respondent submitted that this factor does not arise for consideration in circumstances where the applicant has already made a claim disputing his termination, namely, his application for the Fair Work Commission to deal with a dismissal dispute.
There is, however, one matter addressed in the applicant’s affidavit that is relevant to this consideration. The applicant deposed that on 8 July 2022 he approached the respondent to ask if it would agree to the Fair Work Commission arbitrating his general protections dismissal dispute under s 369 of the Fair Work Act, and was advised by the respondent’s lawyer on 12 and 13 July 2022 that the respondent would not agree to the applicant’s request for arbitration.
The applicant’s communications with the respondent about the possibility of arbitration indicate that he was contemplating taking further action to contest his termination beyond the unsuccessful conciliation conference conducted by a Fair Work Commissioner.
Prejudice to the respondent
The applicant submitted that the respondent is not unfairly disadvantaged by the late application.
The respondent submitted that it would suffer prejudice if the extension of time is granted because the applicant is using the general protections application as a vehicle to criticise and make disparaging comments about the respondent, its Board, Chair and staff. In advancing this submission, the respondent has identified by way of example some of the statements in the general protections application which are said to be irrelevant to the applicant’s claim and which serve no purpose other than to disparage the respondent and its employees.
While I acknowledge that the applicant in his Form 2 has included some information which does not appear to directly relate to his claims under the general protections provisions, and which is adverse to the respondent, the respondent’s complaint relates to the contents of the application. The respondent has not identified any prejudice it would suffer as a result of the late filing of the application, distinct from having to respond to an application which contains some information which might be viewed as irrelevant and prejudicial.
I am not satisfied that the respondent will suffer any prejudice as a result of the late filing of the application. However, as set out in Brodie-Hanns, the mere absence of prejudice does not, of itself, justify the grant of an extension of time.
Merits of the substantive application
There is very limited evidence before the Court at this early stage of the proceeding to enable any meaningful consideration of the merits, even at an impressionistic level, and the respondent has not yet been required to file any response or defence.
At a high level of generality, the applicant’s case is that the respondent breached s 340(1)(a)(iii) of the Fair Work Act by taking adverse action against him because he proposed to exercise a workplace right or had at a previous time proposed to exercise a workplace right.
The applicant claims that at one stage he provided notice that he intended to make a Work Health and Safety Act claim due to the respondent not being able to provide a safe workplace, unless there was significant change in the behaviour of the Board.
The applicant’s employment was terminated, with the reason given in the termination letter being ‘inappropriate conduct in not following board directives and changing without board authority or consent the password needed to access the email account of the previous Chief Executive Officer’. The applicant claims in his Form 2 that he was asked by the Chair and another director to provide access to the CEO email account for the purpose of an investigation. In his Form 2, the applicant provides the following explanation for not complying with the request:
20.… I advised the Chair I would be happy to provide any emails to the relevant committee / board following a specific request. I advised it was not appropriate governance for the Chair to become involved in operational matters.
21.At this stage the Chair did not have delegated authority to pursue an investigation into the former CEO …
The applicant believes that his employment was terminated because the Board knew he had the intent and would contact WorkSafe WA and/or the Fair Work Commission to hold the respondent accountable for its actions, and not for the reasons set out in the termination letter.
The respondent submitted that the applicant’s claim is without merit and this should weigh heavily against the grant of an extension of time. The respondent has outlined four reasons why it says that the claim is without merit, namely:
(a)The application contains a significant amount of irrelevant and/or inaccurate information that is unrelated to his claim that the respondent took adverse action against him because he exercised a workplace right.
(b)The respondent denies that it terminated the applicant’s employment for any prohibited reason, and asserts that the reason for termination is that set out in the termination letter.
(c)The applicant has failed to show any connection between the termination of his employment by the respondent and the exercise by him of a workplace right, and there is no such connection.
(d)The respondent will have no difficulty in rebutting the applicant’s claim that his employment was terminated because of the complaint that he intended to make.
In considering the merits of the substantive application for the purposes of deciding whether to grant an extension of time, I have taken into account that the application has been prepared by a litigant who is self-represented.
The applicant claims to have proposed to exercise a workplace right. Both parties appear to accept that his employment was terminated, which is an adverse action. If the applicant establishes based on evidence that he proposed to exercise a workplace right, the onus will fall to the respondent to show that the applicant’s employment was not terminated because he proposed to exercise a workplace right. These are questions of fact which are best determined based on evidence.
I am satisfied that the case raised by the applicant is not obviously lacking in merit and is not on its face untenable or unarguable. It follows that I do not accept the respondent’s submission that the substantive application is without merit and that this should weigh heavily against the grant of an extension of time.
Consideration of fairness between applicant and persons in a like position
The applicant did not address this consideration in his submissions.
The respondent did not submit that granting the extension of time to the applicant would be unfair to another person in a like situation to the applicant. However, the respondent did submit that it would not be unfair to the applicant to refuse to grant the extension of time.
I am satisfied that granting the extension of time to the application would not be unfair to other persons in like situations.
Conclusion
Taking into account and balancing all of the above considerations, I am satisfied that it is appropriate to grant the applicant an extension of time of five days to file a general protections court application.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 November 2022
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