Whitfield v One Key Resources Pty Ltd
[2014] FCCA 553
•2 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITFIELD v ONE KEY RESOURCES PTY LTD | [2014] FCCA 553 |
| Catchwords: INDUSTRIAL LAW – Whether small claim or general protections court claim – criteria to be met for a small claim – whether claim for “an amount that an employer was required to pay to … an employee” – whether extension of time to be granted to file general protections court claim. |
| PRACTICE AND PROCEDURE – Industrial law – whether claim under small claims procedure or general protections court claim. |
| PRACTICE AND PROCEDURE – Industrial law – general protections court claim – whether extension of time to be granted to file general protections court claim – Brodie-Hanns factors – consideration of factors. |
| WORDS AND PHRASES – “and” – “was” – “was required to pay to”. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 368, 369, 370, 371, 544, 545, 548 Fair Work Amendment Act 2013 (Cth), ss.2(1), 3 |
| Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 AZACM v Minister for Immigration & Citizenship [2013] FCA 710 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 BZABK v Minister for Immigration & Citizenship & Anor (2012) 205 FCR 83; [2012] FCA 774 Clarkev Service to Youth Council Incorporated [2013] FCA 1018 Dingwall v Commissioner of Taxation (1995) 57 FCR 274 Groves v Chadwick [2013] FCCA 1269 Hughes v Mainrange Corporation Pty Ltd (2009) 190 IR 191; [2009] FMCA 1025 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 McPaul v CPC Engineering Pty Ltd [2013] FMCA 71 Owen v Cudeco Ltd [2013] FCCA 1827 Re The Licensing Ordinance (1968) 13 FLR 143 Ritchie v Chubb Security Services Ltd (2010) 196 IR 174; [2010] FMCA 361 Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 Secretary, Department of Employment, Education, Training and Youth Affairs v Gray (1999) 91 FCR 254; [1999] FCA 1150 Sibert v Tiwi Islands Shire Council (No.2) [2012] FMCA 1100 Transport Workers’ Union v School Bus Contractors Pty Ltd (2011) 201 IR 327; [2011] FMCA 28 Transport Workers Union of Australia v National Dairies Limited (No. 2) (1994) 57 IR 186 Transport Workers’ Union of Australia v Transit Systems WA Pty Ltd (2012) 224 IR 436; [2012] FMCA 637 Turner v K&J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412 Yousef v Taxsmart Group Pty Ltd & Anor [2013] FCCA 2089 |
| Oxford English Dictionary, |
| Applicant: | SHANNAN COLIN WHITFIELD |
| Respondent: | ONE KEY RESOURCES PTY LTD |
| File Number: | PEG 267 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 March 2014 |
| Date of Last Submission: | 21 March 2014 |
| Delivered at: | Perth |
| Delivered on: | 2 April 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr M Moy |
| Solicitors for the Respondent: | McCullough Robertson Lawyers |
ORDERS
The name of the respondent be amended to “One Key Resources Pty Ltd”.
The applicant’s application for an extension of time in which to file an application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 267 of 2013
| SHANNAN COLIN WHITFIELD |
Applicant
And
| ONE KEY RESOURCES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Application for an extension of time
The applicant Shannan Colin Whitfield, seeks an extension of time in which to file an application under the Fair Work Act 2009 (Cth),[1] purportedly under the small claims procedures in the Fair Work Division of this Court.
[1] “FW Act”.
Changes to the relevant legislative provisions
At the time Mr Whitfield made application to this Court the relevant legislative provisions with respect to the issuance of a certificate by the Fair Work Commission[2] certifying that it was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, was s.369 of the FW Act. The relevant provision with respect to an extension of time in which to file a general protections court application was s.371(2) of the FW Act, which provided as follows:
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
[2] “Commission”.
There was a “Note” at the end of s.371(2) of the FW Act, as follows:
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.[3]
[3] “Section 371 Note”.
Pursuant to amendments under the Fair Work Amendment Act 2013 (Cth)[4] the provision for the issuance of a certificate by the Commission became s.368(3) of the FW Act. Section 371(2) in relation to an extension of time became s.370(a)(ii) of the FW Act, and the Section 371 Note became Note 2 to s.370 of the FW Act.[5] The amendments took effect from 1 January 2014.[6] The amendments did not change the substance of the affected sections.
[4] “FW Amendment Act”.
[5] FW Amendment Act, s.3, sch.4A.
[6] FW Amendment Act, s.2(1).
If the applicant makes out a case for an extension of time any order made will be made under s.370(a)(ii) of the FW Act, as it now stands, as the statutory amendments are procedural in nature. For the sake of consistency, however, the Court will refer to the pre 1 January 2014 section numbers of the FW Act throughout the remainder of these Reasons for Judgment.
Leave to appear in small claims list
This is a matter purportedly under the small claims procedures in s.548 of the FW Act in the Fair Work Division of this Court’s jurisdiction. As such, leave is required for the lawyers for the respondent, One Key Resources Pty Ltd,[7] to appear.[8] Assuming that leave was required under s.548(5) of the FW Act, the Court granted leave to the lawyers for One Key Resources to appear at hearing because:
a)there is a technical legal issue as to whether this matter is a small claims matter or a general protections court claim, that issue having been raised by the Court with the parties the day prior to the hearing, with a request that the parties make oral submissions on the issue at hearing;
b)if the matter is a general protections court claim, there is a necessity to address specific factors in relation to any exercise of discretion by this Court to extend time;
c)Mr Whitfield, albeit a self-represented litigant, has not addressed those factors because he has not filed an outline of submissions, and has therefore not provided any assistance to the Court in advance of the hearing with respect to addressing those factors, that being the purpose for which an outline of submissions was ordered to be filed;
d)the lawyers for One Key Resources have filed submissions, addressing the relevant factors concerning an extension of time, and thereby provided assistance to the Court in respect to addressing those factors, and the Court is likely to be assisted by the appearance of lawyers for One Key Resources in these proceedings, both in relation to the specific technical legal issue which has arisen, and more generally in relation to the consideration of the extension of time factors;[9] and
e)were leave to have been refused, the Court may have been left with no assistance from the parties in relation to the specific technical issue, or the relevant factors concerning an extension of time.
[7] “One Key Resources”.
[8] FW Act, s.548(5).
[9] Hughes v Mainrange Corporation Pty Ltd (2009) 190 IR 191 at 192 per Lucev FM; [2009] FMCA 1025 at para.2 per Lucev FM, followed in Transport Workers Union of Australia v Transit Systems WA Pty Ltd (2012) 224 IR 436 at 437 per Lucev FM; [2012] FMCA 637 at para.3 per Lucev FM.
For reasons which follow, the Court has determined that the matter is not a small claim, and, therefore, One Key Resources were entitled to appear by their lawyers, and the leave granted to appear by their lawyers was unnecessary.[10]
[10] Ritchie v Chubb Security Services Ltd (2010) 196 IR 174 at 177 per Smith FM; [2010] FMCA 361 at para.17 per Smith FM (“Ritchie”).
Small claim or general protections court claim?
The question arises as to whether the application is a small claim under s.548 of the FW Act, or a general protections court claim under s.371 of the FW Act. The distinction is critical, because if the matter is not a general protections court claim, then a limitation period of six years under s.544 of the FW Act applied, rather than a limitation period of 14 days under s.371(2) of the FW Act.
In Mr Whitfield’s application he ticked the box indicating that he seeks to have the matter dealt with as a small claim. The claim form filed with the application is, however, a claim form entitled “Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”.[11] Under the words “Form 2” on the Claim Form there is an annotation “Fair Work Division Rule 45.06(b)”. In that regard it is relevant to observe that r.45.06 of the Federal Circuit Court Rules 2001 (Cth)[12] provides as follows:
[11] “Claim Form”.
[12] “FCC Rules”.
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under section 369 of the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
The claim made in the Claim Form is for unspecified and unparticularised “compensation” for the contraventions alleged at Part G of the Claim Form.
An order for “compensation” is an order that the Court can make under s.545(2)(b) of the FW Act “for loss that a person has suffered because of the contravention”. To make such an order requires the Court to make an assessment of loss that a person has suffered because of the contravention, which requires proof of a causal connection between the contravention and the loss claimed.[13]
[13] Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at 592 per Barker J; [2011] FCA 333 at para.423 per Barker J (“International Aviation Service”).
Section 548(1), (1A) and (2) of the FW Act provide as follows:
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistratescourt or the Federal Circuit Court; and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safetynet contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
(2) In small claims proceedings, the court may not award more than:
(a) $20,000; or
(b) if a higher amount is prescribed by the regulations--that higher amount.
In s.548(1) of the FW Act the word “and” is used at the end of paragraphs (a) and (b), and after the semi-colon in each. Although not an invariable rule, where “and” appears joining two or more requirements in a statute it will usually indicate that those requirements are cumulative, unless the particular context requires otherwise.[14] In this case, the context makes it clear that “and” is used cumulatively in s.548(1) of the FW Act. In context, it can be contrasted with the use of “or” in s.548(1A)(a), between placitas (i) and (ii) and (iii), which establish discrete bases for amounts an employer was required to pay to an employee, and s.548(2) where the use of “or” between paragraphs (a) and (b) establishes two discrete possible amounts which might be awarded by a court, one being a prescribed amount ($20,000), the other being a higher amount if prescribed by the Fair Work Regulations 2009 (Cth). Thus, in context, the use of “and” at the end of paragraphs (a) and (b) of s.548(1) of the FW Act indicates an intention that before proceedings can be dealt with as small claims proceedings under s.548 each of the criteria in paragraphs (a), (b) and (c) of s.548(1) of the FW Act must be met.
[14] Secretary, Department of Employment, Education, Training and Youth Affairs v Gray (1999) 91 FCR 254 at 261 per Hill J; [1999] FCA 1150 at para.23 per Hill J; Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J (where it was decided that a “lounge” was not a room which was a bar-room within the definition of “bar-room” in the relevant Ordinance because it did not answer to two descriptions, namely a room in which the liquor is kept and a room in or from which liquor is directly supplied to customers).
The requirements of s.548(1)(a) and (c), that of an application for an order to this Court (other than a pecuniary penalty order), and an indication that the applicant wants the small claims procedure to apply to the proceedings, are both met. Under s.548(1)(b) the order applied for (see s.548(1)(a) of the FW Act) must relate to an amount referred to in s.548(1A) of the FW Act. Section 548(1A)(b) can be disposed of quickly, as Mr Whitfield was not an “outworker under a modern award”. In order for this matter to be a small claims procedure matter Mr Whitfield must demonstrate that he is applying for an order in respect of “an amount that an employer was required to pay to, or on behalf of, an employee”.[15]
[15] FW Act, s.548(1A)(a).
The Claim Form does not specify or particularise any amount that One Key Resources was required to pay to Mr Whitfield. The claim is made in the following terms:
1.I was dismissed from employment without warning or clear explanation. Ben Hoyer at BHP Yandi withheld information from me and what he did tell me is based on false statements by the supervisor, Steven Collard.
2.After filing a claim against One Key Resources with Fair Work Australia, I was then told by Aleisha Cosgrove at One Key, the reasons for dismissal and these three reasons are false and insulting to me.
3.Reason One is in regard to unsafe work practice. The allegation states I refused to do a task in a certain manner as requested by Matt Schrandt. I had refused as I had seen it as unsafe so I used an alternative method. I was handling a 30kg splitter and Matt had asked me to stay on the left side of the holes. The ground had a steep slope on the left but the right was flat and clear. The sample bags were on the left side so I stayed on the right side to avoid developing back strains. It took me an extra 5 minutes to do the job safely but Matt wasn’t too impressed. He would have lied to Steven Collard on that event.
4.Reason two alleges I was using my phone on site. I worked at another BHP site prior to this job and I was fully aware and adapted to site rules. I did not use my phone on site at all yet other workers like Matt would be texting whilst driving on site.
5.Third reason alleges I said ‘I don’t care’ when asked about grade control prototype. Again false. I was in fact impressed and spoke to the engineers of ideas I had to improve it.
The remedy sought under Part H of the Claim Form is compensation, but no details of the compensation being claimed and how the compensation has been calculated are attached to the Claim Form.
The use of “was” in s.548(1A)(a) indicates that whatever amount was required to be paid was an amount required to be paid in the past. That is consistent with the ordinary meaning of “was” which is:
what was; something past,[16]
[16] Oxford English Dictionary, redirectedFrom=was& accessed 28 March 2014.
That the use of “was” refers to a past amount required to be paid is consistent with the use of the phrase “required to pay to” which also appears is s.548(1A)(a) of the FW Act. Read in conjunction with “was” the phrase “required to pay to” means that there is a requirement for either an actual payment, or, at least, a present obligation to pay a sum certain at some future date. A contingent amount payable is not what is meant by the phrase “was required to pay to”.[17]
[17] Dingwall v Commissioner of Taxation (1995) 57 FCR 274 at 281-282 per O’Loughlin J.
In Ritchie the Federal Magistrates Court held that a claim which sought relief not within the matters listed in s.548(1A) was not a small claim, without specifying in that case what the precise claims were, save that it can inferred that those claims were made in relation to an alleged dismissal in contravention of a general protection.[18] To similar effect, in terms of principle, is Groves v Chadwick[19] in which this Court held that it did not have jurisdiction to order the provision of an apology or a reference in small claims proceedings because they were not an “amount” in the context of an “amount that an employer was required to pay to … an employee”.[20]
[18] Ritchie IR at 175 per Smith FM; FMCA at para.4 per Smith FM.
[19] [2013] FCCA 1269 (“Groves”).
[20] Groves at para.17(a) per Judge Lucev.
In this case Mr Whitfield has not specified or particularised the compensation claimed. From the nature of the contraventions alleged, however, there is nothing that would indicate that any loss allegedly caused by any of the alleged contraventions would be in relation to an amount that One Key Resources was required to actually pay to Mr Whitfield in the past, or which was a present obligation to pay a sum certain at some future date. Mr Whitfield’s claim is, therefore, not a small claim under s.548 of the FW Act because it does not seek an order which relates to an amount under s.548(1A) of the FW Act.
In Yousef v Taxsmart Group Pty Ltd & Anor[21] this Court observed that “as the applicant sought compensation for his dismissal in contravention of a general protection … the matter could not proceed under the small claims process”.[22] Because of the conclusion reached in the preceding paragraph, it is, in the Court’s view unnecessary in this case to consider whether a general protections court claim seeking compensation can ever be a claim under s.548(1A)(a) of the FW Act for “an amount that an employer was required to pay to … an employee”.
[21] [2013] FCCA 2089 (“Yousef”).
[22] Yousef at para.1 per Judge O’Dwyer.
Time for filing application in this Court
On 22 August 2013 the Commission issued a Certificate under s.369 of the FW Act certifying that it was satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.[23] Under s.371(2) of the FW Act, which is set out above,[24] Mr Whitfield had 14 days from 22 August 2013, that is until 5 September 2013, or such further period as the Court allows, to make a general protections court application. Mr Whitfield’s application was not made until 8 October 2013. The application was therefore made 47 days after the issuance of the Section 369 Certificate, and is therefore 33 days out of time.
[23] “Section 369 Certificate”.
[24] See para.2 above.
Under the heading “Interlocutory, interim or procedural orders sought by applicant” on the application form Mr Whitfield says as follows:
I request for an extension of time. I had completed a form prior to 22nd August but had used the wrong court. I started a 4/1 roster the following week and could not get the correct form or court in sooner. I work FIFO in Newman.
Mr Whitfield’s application for an extension of time is opposed by the respondent, One Key Resources.
Earlier orders of the Court
On 7 February 2014 the Court made orders, including the following:
1. The applicant’s interim application for an extension of time be listed for hearing at 2:15pm on 21 March 2014, with liberty to the respondent to appear by telephone.
2. The applicant file and serve:
(a) any affidavit; and
(b) an outline of submissions;
in support of the interim application for an extension of time by 28 February 2014.
3. The respondent file and serve:
(a) any affidavit; and
(b) an outline of submissions;
in opposition to the interim application for an extension of time by 14 March 2014.
Mr Whitfield did not file any affidavit or an outline of submissions in support of the interim application for an extension of time, by 28 February 2014, or otherwise.
One Key Resources did not file any affidavits, but did file an outline of submissions in opposition to the interim application for an extension of time by 14 March 2014.
An order requiring the filing of “any affidavit” is technically not an order requiring the filing of a further affidavit.[25] The failure of an applicant for extension of time to file an affidavit does however make the Court’s task in assessing whether an extension of time ought to be granted far more difficult, given that proper consideration of an application for extension of time will usually require:
a)an applicant to have an acceptable reason for any delay;
b)consideration of whether an applicant has taken action, other than action under the FW Act, to contest the issue; and
c)consideration of the merits of the substantive application,[26]
each of which require at least some factual context.
Factors for consideration in relation to an application for extension of time under the FW Act
[25] Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at para.24 per Judge Lucev, and the other authorities there cited.
[26] See para.28 below.
Principles to be applied
In Brodie-Hanns v MTV Publishing Ltd[27] the Industrial Relations Court of Australia[28] said that the “principles … appropriate to be applied” in considering whether or not to grant an extension of time were as follows:
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.[29]
[27] (1995) 67 IR 298 (“Brodie-Hanns”).
[28] “IR Court”.
[29] Brodie-Hanns at 299-300 per Marshall J.
The principles set out in Brodie-Hanns were said[30] to be derived from two earlier judgments of the IR Court,[31] which in turn applied the principles in the well-known Federal Court judgment in Hunter Valley Developments Pty Ltd v Cohen.[32]
[30] Brodie Hanns at 298 per Marshall J.
[31] Transport Workers Union of Australia v National Dairies Limited (No. 2) (1994) 57 IR 186; Turner v K&J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412.
[32] (1984) 3 FCR 344 at 348-349 per Wilcox J.
Following detailed consideration of the Section 371 Note the Federal Magistrates Court[33] in Transport Workers’ Union v School Bus Contractors Pty Ltd[34] found that:
a)the Section 371 Note is not a part of the FW Act; and
b)section 371(2) of the FW Act granted such a broad general discretion that it is, in its plain terms, not compatible with any limitation which might arise from the application of the Brodie-Hanns principles.[35]
[33] “FM Court”.
[34] (2011) 201 IR 327; [2011] FMCA 28 (“School Bus Contractors”).
[35] School Bus Contractors IR at 339 per Lucev FM; FMCA at para.36 per Lucev FM.
In School Bus Contractors the FM Court went on to observe that:
Although the Section 371 Note does not form part of the FW Act, and although the Brodie-Hanns principles are not binding upon the Court, the Brodie-Hanns principles have been regularly applied by this Court, and do constitute a relevant guide to the criteria to be applied. The Court will therefore use the Brodie-Hanns principles as non-binding but guiding criteria in this matter.[36]
[36] School Bus Contractors IR at 339 per Lucev FM; FMCA at para.37 per Lucev FM.
In McPaul v CPC Engineering Pty Ltd[37] the FM Court followed School Bus Contractors and used the Brodie-Hanns principles as non-binding but guiding criteria.[38]
[37] [2013] FMCA 71 (“McPaul”).
[38] McPaul at paras.10-11 per Lucev FM.
In Sibert v Tiwi Islands Shire Council (No.2)[39] the FM Court described the Brodie-Hanns principles as “authoritative”.[40] This Court in Owen v Cudeco Ltd[41] said that the Brodie-Hanns principles were “instructive of the relevant principles to be applied”.[42] The Federal Court, having referred to School Bus Contractors, observed that “it is sufficient to treat the note as a reference to the kinds of considerations which may be relevant”.[43]
[39] [2012] FMCA 1100 (“Sibert (No.2)”).
[40] Sibert (No.2) at para.22 per Driver FM.
[41] [2013] FCCA 1827 (“Owen”).
[42] Owen at para.7 per Judge Driver.
[43] Clarkev Service to Youth Council Incorporated [2013] FCA 1018 at para.5 per White J.
The Court will, following School Bus Contractors, use the Brodie-Hanns principles as non-binding but guiding criteria in this matter.
Special circumstances, positive satisfaction and acceptable explanation of the delay
Mr Whitfield’s failure to file any affidavit evidence makes it very difficult for the Court to find an acceptable explanation for the delay. There is no evidence of an acceptable explanation of the delay making it equitable to extend time. At hearing nothing was added by Mr Whitfield to the “explanation” given in the application.
Even taking the “explanation” given in the application seeking an order for an extension of time at its highest does not assist Mr Whitfield. The assertion that he had completed “a form prior to 22 August” does not make any sense as the Section 369 Certificate was only issued on 22 August 2013. The assertion that Mr Whitfield “used the wrong court” also does not assist in the absence of any explanation as to which court was used, when, and why that court was “wrong”, and when and how it was discovered that that court was “wrong”. The fact, if it be so, that Mr Whitfield “started a 4/1 roster the following week” also does not assist him. There is no explanation as to why, having already completed a form, but using the wrong court (accepting for present purposes that that be the case), Mr Whitfield in the “following week”, prior to commencing his “4/1 roster”, was not able to file the required application and claim form in this Court. The fact that Mr Whitfield works as a “FIFO in Newman” also does not assist in explaining the delay. It is said that Mr Whitfield “could not get the correct form or court in sooner”. Beyond that bare assertion, there is no explanation as to why. The Court can take judicial notice of the fact that filing of forms can now be done by both facsimile and e-lodgement, the latter requiring a simple pre-registration. There is no explanation as to why Mr Whitfield could not utilise these means to file his application whilst at Newman, or in the week prior to his commencing his roster period at Newman. Further, if Mr Whitfield commenced a four week on and one week off roster a week after 22 August 2013, then his four week on would have finished about 26 September 2013. The further 12 day delay before the filing of the application is not explained.
In all of the above circumstances, the Court does not consider that there is an acceptable explanation for the delay in filing the application which would make it equitable to extend time.
Action taken to contest the termination other than applying under the FW Act
There is no evidence of any action taken by Mr Whitfield to contest the termination by any other means other than applying under the FW Act.
Prejudice to respondent including prejudice caused by delay
There is no obvious prejudice to One Key Resources, save for the possible prejudice at hearing arising from the dilution of witness’ memory, and the availability of witnesses, arising from the delay in relation to a termination said to have occurred on 30 May 2013.
Absence of prejudice
As indicated above there may be some prejudice to One Key Resources, but, even if there is no prejudice, mere absence of prejudice is an insufficient basis to grant an extension of time.
Merits of the substantive application
The contraventions alleged specify no workplace right under s.340 of the FW Act which is claimed to be relied upon as the basis for a dismissal in contravention of a general protection. Likewise, no other contravention of the FW Act is set out. As such, it is simply not possible to determine whether or not there has been a contravention as alleged, because no contravention is alleged by reference to any section of the FW Act. Nor are the alleged contraventions discernible from what are said to be the grounds alleging contravention. Further, the grounds do not allege a contravention under the FW Act in any recognisable form. Thus, not only are the alleged contraventions not specified by reference to the provisions of the FW Act relied upon, they are also not specified in words recognisable as alleging a contravention under any of those sections. It is not for the Court to assume what contraventions it is that an applicant, even a self-represented applicant, alleges.
In any event, what is said in relation to the “grounds” of the “alleged contravention” in the general protections claim form is that Mr Whitfield was given three reasons which he asserts were “false and insulting”. The first relates to alleged unsafe work practice, in respect of which Mr Whitfield asserts that he was told to do one thing, but did it in an alternative manner, and that the person who requested that he do it in the former manner “wasn’t too impressed”. The second reason relates to his using a mobile phone on site, which he justified by reference to his having “worked at another BHP site” before his employment by One Key Resources at the BHP site at Newman, and says that he was fully aware of the policy and site rules, and did not use his phone on site, but that other workers did. The third reason was said to be that he said “I don’t care” when asked about a “grade control prototype”, which he says was a false accusation. Mr Whitfield conceded at hearing, that these reasons really relate to the unfairness of his dismissal, and not necessarily any workplace right which might have been contravened.
The only reasons, given as grounds by Mr Whitfield, which might seemingly give rise to a workplace right, are the first and second reasons, which might give rise to a workplace right under occupational, health, safety and welfare laws. But on the basis of the matters put it is simply not possible to form any view about what particular occupational, health and safety workplace right might be asserted, or the merits of the particular incidents. More generally, and even on the lesser standard necessary in assessing merits on an extension of time application, there is no obviously discernible merit in the claim as a general protections court claim.
In any event, if Mr Whitfield wished to impress upon the Court the merits of the substantive application, he had the opportunity to do so by filing an affidavit in accordance with the earlier orders of the Court, and has failed to do so. The failure to establish any merit in the substantive application to the requisite degree lies entirely at the feet of Mr Whitfield.
Consideration of fairness as between the applicant and other persons in a like position
There is no evidence as to any persons who were in a like position with respect to termination of employment on the bases on which Mr Whitfield says he was terminated. Further, if a broad view of persons in a like position was taken, then considerations of fairness militate against the grant of an extension of time in this case because of the failure of Mr Whitfield to properly allege or set out, even in simple terms, any contraventions, and the failure to file any affidavit material in relation to the alleged merits of any alleged contraventions, or any acceptable reason for the delay in filing the application. Put simply, if this application for an extension of time were to be granted, it would be unfair to many others, both past and present, who have not had, or will not have, their applications for extension of time granted.
Conclusion – extension of time factors
In the Court’s view, none of the usual factors used to determine whether the Court might exercise its discretion in favour of an extension of time application warrant the granting of this application for an extension of time.
There are no other factors which the Court can discern, or which were suggested to it might be applicable, which require consideration.
Conclusions, orders and costs
The Court has concluded that an application for an extension of time in this case ought not be granted. It follows that the application for an extension of time in which to file the application must be dismissed. It is unnecessary to dismiss the substantive application as incompetent as it is not an application which is treated as having been filed, given that it cannot be filed without the Court first having granted an application to extend time.[44]
[44] BZABK v Minister for Immigration & Citizenship & Anor (2012) 205 FCR 83 at 92 per Foster J; [2012] FCA 774 at para.43 per Foster J; AZACM v Minister for Immigration & Citizenship [2013] FCA 710 at para.12 per Mansfield J.
As discussed with Counsel for One Key Resources at hearing, there will also be an order amending the name of One Key Resources to read “One Key Resources Pty Ltd”.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 2 April 2014
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