Wild v Action Industrial Catering
[2021] FCCA 822
•28 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Wild v Action Industrial Catering [2021] FCCA 822
File number: PEG 26 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 28 April 2021 Catchwords: INDUSTRIAL LAW – extension of time application – general protections application – factors for consideration – extension of time granted. Legislation: Fair Work Act 2009 (Cth), ss 340, 361, 368, 370 Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Number of paragraphs: 58 Date of last submission/s: 6 April 2021 (Applicant)
20 April 2021 (Respondent)Date of hearing: On the Papers Place: Perth Applicant: In person Solicitor for the Respondent: FCB Lawyers & Consultants ORDERS
PEG 26 of 2021 BETWEEN: GREGGOR MAINE WILD
Applicant
AND: ACTION INDUSTRIAL CATERING
Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS THAT:
1.Pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth), 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 2009 (Cth) on 21 December 2020 be extended to and include 29 January 2021.
2.The respondent file a response by 12 May 2021.
3.The matter be referred to mediation before a Registrar of the Court on a date to be fixed by that Registrar.
4.If the matter does not resolve at the mediation referred to in Order 3, there be a further directions hearing on a date to be fixed by the Court.
5.Costs, if any, be reserved.
REASONS FOR JUDGMENT
JUDGE KENDALL
The applicant in these proceedings, Mr Wild, filed an application in this Court on 29 January 2021. In that application, Mr Wild alleges that the respondent, Action Industrial Catering (“Action Catering”), took adverse action against him because he made complaints during the course of his employment. Relevantly, Mr Wild claims that Action Catering contravened s 340 of the Fair Work Act 2009 (Cth) (the “Act”). He seeks compensation, reinstatement and a pecuniary penalty.
No response has been filed by Action Catering. A notice of address for service has been filed.
Pursuant to s 370(a)(ii) of the Act, Mr Wild was required to file his application in this Court within 14 days of a certificate being issued by the Fair Work Commission pursuant to s 368 of the Act. Here, the certificate was issued on 21 December 2020. Accordingly, Mr Wild was required to file his application on or before 4 January 2021. He did not do so. Rather, as noted above, he filed his application on 29 January 2021 – that is, 25 days late.
Section 370(a)(ii) of the Act gives the Court the discretion to extend the time for the filing of an application. At the first court date on 24 March 2021, Mr Wild appeared in person. Ms Salinger appeared for Action Catering. Ms Salinger indicated that Action Catering opposed an extension of time being granted.
The Court made orders as follows:
1. By 6 April 2021, the applicant file and serve any affidavit evidence and an outline of submissions in relation to whether an extension of time should be granted to commence these proceedings.
2. By 20 April 2021, the respondents file and serve any affidavit evidence and an outline of submissions opposing an extension of time being granted.
3. By consent, the question of the extension of time be determined on the papers.
4. Liberty to apply.
5. Costs, if any, be reserved.
The “papers” that are before the Court in determining the extension of time are:
(a)the origination application and Form 2 filed 29 January 2021;
(b)a letter to the Court dated 18 January 2021;
(c)an affidavit of the applicant affirmed 6 April 2021;
(d)an affidavit of Benjamin Josef Gee affirmed 20 April 2021; and
(e)an outline of submissions in relation to the request for an extension of time filed by Action Catering on 20 April 2021.
EXTENSION OF TIME
As noted above, s 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. However, the Court has the discretionary power to extend time if it deems it appropriate to do so.
The principles that the Court applies when considering whether to extend time are not “fixed”. However, a note to s 370(a)(ii) of the Act refers to the case of Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 (“Brodie-Hanns”) as relevant to the exercise of the discretion to extend time.
The factors identified by Justice Marshall in Brodie-Hanns are:
1.Special circumstances are not necessary but the court must be positively satisfied that the 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.
The Court can also consider any other matters it considers relevant and which the parties raise in support of, or in opposition to, the request for an extension of time.
MR WILD’S CASE
In a letter to the Court dated 18 January 2018, Mr Wild states:
I am listing this application as urgent as I have been unable to lodge the application before.
The 14 day period in which the application should have been lodged has passed due to the following factors:
•I registered to lodge and the response was sent to my junk mail.
•In order to ensure the application was lodged in the time provided, I sent the documents to your general email address on 4/1/2021.
•The email was returned as unread … again to my junk mail.
•The day after sending them to the email (5/1/2021) I attended your offices to lodge the documents by hand (hard copy). I was told to leave the documents in the drop box by a security guard.
•I did this only to have all the documents returned to me 3 days later by mail as I had apparently lodged them to the Family Court.
•I have been trying to call the court numerous times but could not get through.
•I visited the court a second time and was told to phone the court for help, again I could not get through.
•I finally spoke to a very helpful person today (18/1/2021) who suggested I send an attachment to the lodged documents explaining my reasons for requesting an extension to the lodgement period.
I therefore hope that you accept the above as viable reasons to issue an extension to the lodgement.
In his affidavit sworn 6 April 2021, Mr Wild further states:
1. I was unable to lodge my papers within the 14 day period as requested due to unforeseen circumstances, including;
2. I was unaware I had to register prior to lodging and I registered to lodge on 4/1/2021, the same day that I wished to lodge the documents, and the response was sent to my junk mail.
3. In order to ensure the application was lodged in the time provided, I also sent the documents to your general email address on the same day, ie 4/1/2021. The email was returned as unread to my junk mail.
4. Also on the same day (4/1/2021) I attended your offices to lodge the documents by hand (hard copy}. I attempted to speak to somebody about the lodgement but there were only security personnel on site and I was told to leave the documents in the drop box by a security guard. I did this only to have all the documents returned to me 3 days later by mail as I had apparently lodged them to the Family Court in error.
5. I tried to call the court numerous times but could not get through. I also visited the court a second time and was told to phone the court for help, again I could not get through. I attach phone usage data which shows that I called the Federal Court 4 times over the period 4/1/2021 and 7/1/2021, and the National Enquiry Centre 6 times (12/1/2021 and 14/1/2021) as well as phone usage records for my wife, Nicola DAVISON, who finally got through to someone to help on 18/1/2021. The very helpful lady also suggested I send an attachment to the lodged documents explaining my reasons for requesting an extension to the lodgement period, which I did. The documents were lodged on 18/1/2021.
6. I was further requested to attach more information and the documents were re-lodged and lodgement accepted dated 29/1/2021.
7. The documents were approved for late lodgement, but the other Party (Action Industrial Catering) dispute my claim.
8. I am quite aware that the documents were finally accepted nearly 2 weeks after the date they were due to be lodged (4/1/2021). I was not aware that I needed to register prior to being able to lodge and then lodging the documents proved to be very complicated. I apologise for the disruption to the process this may have caused, but not having done this before, and not being able to afford professional help in this process, I believe I acted appropriately and tried as hard as possible to lodge the documents successfully.
Annexed to Mr Wild’s affidavit were phone records (which indicate that he and his wife called the Court’s National Enquiry Centre and Registry on a number of occasions between 1 January 2021 and 18 January 2021), a letter from the Family Court of Western Australia and correspondence from the Federal Court “eLodgment Court Portal”.
Mr Wild did not file any written submissions.
ACTION CATERING’S CASE
Action Catering opposes any extension of time. In that regard, Action Catering filed an affidavit from Mr Gee (the solicitor with carriage of the matter for Action Catering).
Annexed to Mr Gee’s affidavit was:
(a)an email from “Nicky Davison” to a representative of Action Catering dated 24 December 2020 wherein it is stated that Mr Wild had agreed to a consent arbitration of the dispute by the Fair Work Commission; and
(b)an email from the representative of Action Catering on 30 December 2020 stating that Action Catering would not agree to an arbitration by the Fair Work Commission.
Action Catering submits:
(a)Mr Wild has given no reason as to why he could not file the claim before 4 January 2021. There is no evidence that Mr Wild attempted to call the Court between the period of 21 December 2020 and 4 January 2021 and the calls made between 4 January 2021 and 8 January 2021 were after 4:30pm and outside Registry hours. Accordingly, the Court should conclude that Mr Wild took no step to pursue his claim between 21 December 2020 and 4 January 2021;
(b)the correspondence from Ms Davison should not be accepted as conduct by Mr Wild to prosecute the claim as Ms Davison does not represent Mr Wild and appears to be his spouse;
(c)Mr Wild contends that he was not able to file his application before 4 January 2021 due to the Christmas/New Year closedown. Mr Wild gives no evidence of whether the Registry was open or whether he attempted to file documents in person, by phone or online before 4 January 2021;
(d)there is no evidence that Mr Wild attempted to file his claim in person or online between 5 January 2021 and 18 January 2021. The Court’s record shows that Mr Wild filed his claim on 29 January 2021. Telephone calls cannot be relied on as evidence of Mr Wild attempting to prosecute his claim;
(e)Mr Wild has not provided any evidence that he attempted to attend at the Court in person or file his claim online between 7 January 2021 and 29 January 2021;
(f)the Court should find that:
(a) it was incumbent on Mr Wild to prepare and file his claim in the Court within time;
(b) by 30 December 2020, Mr Wild knew that Action Catering did not consent to the FWC arbitrating the matter and it was incumbent on him to prepare and file his claim in the Court
(c) Mr Wild took no steps before 4 January 2021 to commence the Claim in the Court
(d) Mr Wild knew, by no later than 7 January 2021, that he had not succeeded in filing the Claim in the Court, and
(e) in that knowledge, Mr Wild took no steps to file his Claim in the Court on and after 7 January, and until 29 January 2021.
(g)Mr Wild has not given an acceptable explanation for his inaction in the period of 7 January 2021 until 28 January 2021 and took no step to contest his dismissal until 4 January 2021 and, after this, until 29 January 2021;
(h)no prejudice is claimed by Action Catering;
(i)Action Catering admits that dismissal is adverse action and that making a complaint is the exercise of a workplace right. However, Mr Wild was dismissed because he was unable or unwilling to perform the duties and responsibilities of his position and he was within the period of his probationary employment. Accordingly, the merit is a neutral consideration;
(j)Action Catering was entitled to assume that the claim had reached finality upon the expiry of the time limit and will be prejudiced if an extension is granted. As Mr Wild makes no grounds for an extension, it would be unfair for him to be awarded an extension; and
(k)there is nothing to indicate that the “public interest” weighs in Mr Wild’s favour.
CONSIDERATION
As noted above, the factors which the Court considers when determining whether to grant an extension of time are not fixed. Action Catering has addressed the matters in Brodie-Hanns. Mr Wild’s evidence addresses the attempts that he says he made to file the application.
In circumstances where neither party has raised any additional matters for consideration, the Court will address the following factors:
(a)length of the delay and the explanation (including the steps taken to pursue the matter further);
(b)any prejudice which arises for the parties as a result of the delay;
(c)the fairness of an extension being granted; and
(d)the merits of the application.
Length of the Delay and Explanation
While Mr Wild states that his documents were lodged on 18 January 2021, there is no evidence to this effect. The letter provided to the Court (referred to above) is dated 18 January 2021, however the Court record shows that the application was lodged on 29 January 2021 (and not accepted until 15 February 2021). Accordingly, 29 January 2021 is the date of filing for the purposes of this application.
The last day on which Mr Wild was required to file the application was 4 January 2021. Mr Wild did not file his application until 29 January 2021. He was, accordingly, 25 days late in filing his application.
The Court does not consider the delay to be significant. This weighs in favour of granting an extension of time within which to file the substantive application.
Mr Wild does not dispute that his application was nearly two weeks late. He apologises for the delay.
Mr Wild’s affidavit further explains the efforts he claims to have made to lodge his application. These include:
(a)trying to lodge the application online through the eLodgment portal on 4 January 2021;
(b)emailing the Business Applications Team the application at 8:23pm on 4 January 2021;
(c)attending the incorrect Registry on 4 January 2021 to lodge the application and dropping the application in a “DropBox”; and
(d)contacting the Court Registry and National Enquiry Centre on 11 occasions. However, five of those occasions (on 12 January 2021) occurred within the space of three minutes and 7 of those occasions were after 5:00pm (the time that the Court Registry closes and the phones are sent to a message bank).
The correspondence sent by Mr Wild to the Court’s Business Applications Team states that “[due] to the Christmas/New Year closedown I was unable to do this until today”. This is a rather vague statement. As Action Catering submits, it does not explain whether it was the “closedown” of the Court or Mr Wild’s own circumstances that prevented him from filing until 4 January 2021.
If Mr Wild is claiming that because of a “Christmas/New Year closedown” at the Court he was unable to file his documents until 4 January 2021, this is incorrect. The only days on which the Court Registry was closed were Christmas Day, 28 December 2020 and 1 January 2021. Hence, Mr Wild had six business days to call the Court Registry or attend at the Court Registry prior to 4 January 2021 to either file the application or, alternatively, to seek further information and clarification about how to do so. Mr Wild has provided no evidence to suggest that he made any effort prior to 4 January 2021.
The Court does note that Mr Wild may have “waited” until he had received a response to his request for arbitration before seeking to explore further avenues of appeal.
In migration proceedings, it is an unsatisfactory explanation for an applicant to claim they did not make a judicial review application (or take steps to pursue a judicial review application) because they were, instead, pursuing Ministerial intervention. Here, the circumstances are analogous. Mr Wild’s request for arbitration (and apparent will to pursue this avenue as opposed to the Court) did not stay the statutory time period. If Mr Wild chose to wait for the response to his request for arbitration before filing an application in this Court or did not explore what was required of him to file such until he received a response from Action Catering about arbitration, that was a choice made entirely by him. He was aware of the time limit for proceedings in this Court and it was his responsibility to use his time effectively.
Nonetheless, giving the benefit to Mr Wild, the Court will make adjustments for the fact that Mr Wild may not have sought to take steps until after he had received a response to his request for arbitration. That response was provided on 30 December 2020 at 9:54am. On this basis, Mr Wild had only 5 business days to attend the Registry in person or call for assistance. Again, he did not do so.
Further, Mr Wild also had the full 14 days within which he could file the application online (or a full 6 days after 30 December 2020). Mr Wild could have accessed the Court’s online registration system at any time (not just during Registry hours). Again, he has not provided any evidence that he attempted to do so prior to 4 January 2021.
Finally, to the extent that Mr Wild “dropped the application at the Family Court”, this is unfortunate and carries some, albeit limited, weight in his favour.
On the materials before the Court, Mr Wild does not appear to have made an attempt to lodge the application until 4 January 2021. On that day he tried to do so via three different avenues – via email, via eLodgment and in person. Unfortunately, each attempt was unsuccessful.
Here, Mr Wild waited until the last day in which he could file his application to do so. He does not appear to have registered for eLodgment until 2:31pm on 4 January 2021 (2 hours prior to the closing time for the application to be filed).
In doing so, Mr Wild ran into unforeseen circumstances which ultimately prevented him from filing on time. The Court sees this all too often. Parties should act promptly when filing documents and not leave it until the “last minute” as, almost always, difficulties will arise.
What followed was a further 25 days before Mr Wild finally lodged his application properly.
The Court is satisfied that Mr Wild was, at all times, between 7 January 2021 (when his documents were returned from the Family Court) and 18 January 2021 actively trying to file his application. While he may have been calling the Court after hours (and, as a result, not receiving a response), the records show that he was persistent. The Court gives this some weight in Mr Wild’s favour.
Mr Wild alleges that he lodged the documents on 18 January 2021. Action Catering says that there is no evidence to this effect. Accordingly, a further 11 days is unexplained.
It may well be that Mr Wild did lodge documents. The fact that Mr Wild does not provide any supporting evidence is not significant in the Court’s view. Given his persistence with the application and his repeated attempts to call the Court and his email exchanges with the Court’s Business Applications team, it is entirely plausible that Mr Wild thought he had lodged his application.
Mr Wild has provided an unsatisfactory explanation for why the application was filed late in the first place. He has, however, adequately explained why there was a delay after the time to apply to this Court had expired. This weighs in favour of granting an extension of time within which to file the substantive application.
In determining whether Mr Wild had a reasonable explanation overall, the Court has noted that he was “persistent”. This weighs in favour of the extension as it demonstrates an active intention by Mr Wild to pursue his application.
The Court also rejects Action Catering’s submission that the request for the matter to go to arbitration should not be accepted as evidence of Mr Wild wanting to prosecute his claim. Further, the fact that the correspondence sent to Action Industrial was sent by Mr Wild’s spouse is indifferent. The claim to which it related (and the form which was attached) plainly stated that Mr Wild himself consented to arbitration and was asking Action Catering to do the same. This clearly indicates that Mr Wild wanted to pursue his claim.
On balance, the Court considers the fact that the length of the delay is not significant and Mr Wild’s explanation and conduct following the issue of the Fair Work Certificate all weigh in favour of granting an extension of time within which to file the substantive application.
Prejudice
Action Catering accepts that it will not suffer any prejudice if an extension of time is granted. Although an absence of prejudice does not mean that an extension will necessarily be granted (as per Brodie Hanns), this does, nonetheless, weigh in favour of granting an extension of time.
Fairness
Action Catering submits that it will suffer prejudice from the loss “of the finality that the limitation period is meant to provide”.
A limitation period (like that seen in s 370 of the Act) is designed to provide a sense of finality to any action – such that, once the relevant period expires, a party is entitled to assume that the matter is “at an end”.
The Court accepts that the loss of the “finality” is undesirable. However, while an extension of time will not be “welcomed” by Action Catering, it is not “unfair”. Here, the delay is minimal (and largely explained) and there is no prejudice to Action Catering (by their own concession). This weighs in favour of granting an extension of time within which to file the substantive application.
Mr Wild alleges that there has been a breach of s 340 of the Act. This, if established, would represent a contravention of the Act to which pecuniary penalties apply. While, on its face, this matter may seem to relate to an ordinary employer-employee dispute, there is a public interest in ensuring that any breach of the Act is properly identified and, if appropriate, sanctioned.
The public interest also weighs in favour of granting an extension of time.
Merits
Often, the merits of an application are the determinative factor in deciding whether an extension should be granted. It would be futile to grant an extension if an application has no reasonable prospect of success.
The Court bears in mind that Mr Wild is a self-represented litigant. Hence, any assessment of the merits of his case must be approached from a “reasonably impressionistic level” and should bear in mind that the applicant may not have properly pleaded his case.
It is not necessary to set out in detail the facts giving rise to the application or what Mr Wild says about the complaints he says he made or what relief he seeks. This is so because Action Catering’s submissions state:
43. The Respondent admits that a dismissal is a form of adverse action, as defined in s.342 of the FW Act.
44. The Respondent admits that the making of a complaint or inquiry by an employee in relation to employment can be an exercise of a workplace right, for the purpose of s.341 of the FW Act.
45. The Respondent will defend the Claim, if required on the basis that its decision to dismiss the Applicant was because:
(a) the Applicant was unable or unwilling to perform the duties and responsibilities of his position of Assistant Village Manager;
(b) the Applicant’s employment was terminated within a probation period established under the terms of the employment;
and for no other reason.
Action Catering has confirmed that the basis upon which it will defend the application is that Mr Wild was not dismissed because of the complaints he alleges he made. In doing so, Action Catering has conceded that the s 361 “reverse onus” is enlivened. That is, it will be for Action Catering to prove that the adverse action was not taken for a prohibited reason. Accordingly, Mr Wild’s case arguably has “merit” as it is presumed (unless, Action Catering shows otherwise) that he has established his claim.
Action Catering may not have intended to make any “concessions” in this regard. Indeed, the current state of the law concerning “workplace rights” leaves open whether Action Catering might defend the claim on a further basis. However, at present the only basis on which Action Catering says it will defend the claim is on the basis that the adverse action was taken for the reasons identified at [51]. It is for Action Cleaning to satisfy the Court that that is the case.
There is, arguably, merit in Mr Wild’s claim as advanced. This weighs in favour of an extension of time within which to file the substantive application.
CONCLUSION
The circumstances of this case warrant an extension of time being granted up to and including the date of filing. The delay in filing the application is minimal and the explanation provided is acceptable. Mr Wild has acted to the best of his ability as a self-represented litigant and has apologised for the delay. Further, there is no prejudice to Action Catering and there is a public interest in breaches of the Act being identified. Finally, on the basis of the papers before it, there is, arguably, merit in the application.
Accordingly, there will be an order extending the time to commence proceedings in this Court until the date of filing.
Noting that Action Catering has not filed a response, an order will be made requiring it to do so within 14 days.
The matter will also be referred to mediation as is the usual course for matters of this sort.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 April 2021
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