Wong v Timberglen Pty Ltd
[2020] FCCA 828
•15 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WONG v TIMBERGLEN PTY LTD | [2020] FCCA 828 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to commence a general protections application – application for a corporation to appear by a non-lawyer – factors for consideration – extension of time granted – leave to appear by a non-lawyer granted. |
| Legislation: Fair Work Act 2009 (Cth), pt.3-1, 340, 368, 370 |
| Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 |
| Applicant: | WEI CHOO WONG |
| Respondent: | TIMBERGLEN PTY LTD |
| File Number: | PEG 458 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | On the papers |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Perth |
| Delivered on: | 15 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | Mr B Jones (with leave) |
ORDERS
The time for filing of the application be extended under s.370(a)(ii) of the Fair Work Act 2009 (Cth) to 25 November 2019.
The respondent have leave pursuant to r.9.04 of the Federal Circuit Court Rules 2001 (Cth) to be represented by Mr Barry Jones until further order of the Court.
The matter be referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
If the matter does not resolve at the mediation referred to in order 3, the matter be listed for further directions before the Court on a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 458 of 2019
| WEI CHOO WONG |
Applicant
And
| TIMBERGLEN PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 November 2019, the applicant, Ms Wong, filed a substantive application in this Court alleging that she had been dismissed in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”). She claims she was dismissed because she had made a complaint in relation to her employment. The respondent, Timberglen Pty Ltd, has not filed a response but does oppose the claim.
Prior to these proceedings commencing in this Court, the matter went through a conciliation process at the Fair Work Commission (the “FWC”). The FWC issued a certificate pursuant to s.368 of the FW Act on 7 October 2019. Pursuant to s.370(a)(ii), the applicant had 14 days to lodge her application in this Court. The applicant did not do so within this time limit. She filed her application 35 days late. Hence, to pursue the substantive proceedings in this Court, the applicant requires an extension of time within which to file her substantive application.
At the first court date on 13 February 2020, the applicant appeared in person. Mr Barry Jones appeared for the respondent.
Rule 9.04 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) requires a corporation to be represented by a lawyer. Mr Jones sought leave to appear on behalf of the respondent.
Ultimately, it was determined that:
a)the applicant did not agree to Mr Jones appearing on behalf of the respondent; and
b)Mr Jones, who had leave to speak for the respondent on the first court date, did not agree to the applicant having an extension of time.
The Court asked the parties if they were content for the Court to determine these two preliminary issues on the papers. Both parties agreed to this approach. Orders were made allowing for the filing of any evidence and written submissions in relation to these two issues.
These reasons for judgments will first address whether the applicant should be granted an extension of time under s.370(a)(ii) of the FW Act (the “Extension of Time Application”) within which to file her substantive application.
If no extension of time is granted, then there will be no need to consider the respondent’s application seeking leave for Mr Jones to act on behalf of the respondent. If an extension is allowed, the Court will then consider whether Mr Jones should be allowed to do so (the “Representation Application”).
Materials before the Court
Relevant to these two issues, the materials before the Court are:
a)the applicant’s originating application dated 25 November 2019;
b)the applicant’s affidavit affirmed 25 November 2019;
c)a further affidavit from the applicant dated 19 February 2020; and
d)an outline of written submissions from Mr Jones on behalf of the respondent dated 13 February 2020.
The Extension of Time Application
When considering whether to grant an extension of time in which to bring a general protections application, the Court has regard to the matters identified in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-230 as follows:
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.
This list is not exhaustive and the Court will not adopt a “checklist approach” when considering whether to grant an extension of time. The Court may consider other matters it considers relevant such as the extent of the delay. What is critical is that the Court has regard to the individual facts and circumstances of the particular case.
As noted, the applicant filed her application 35 days outside of the statutory time limit.
In her first affidavit, the applicant relevantly stated as follows:
a)the applicant could not get any legal advice about how to proceed with her case until she met a person on 17 October 2019 who referred her to Legal Aid. She had an appointment on 7 November 2019 at Legal Aid. She was then referred to another person whom she met with on 21 November 2019;
b)the applicant had been calling the Employment Law Centre of WA but the line always diverted to an answering machine. She contacted legal firms but the price quoted was too costly;
c)in October 2019, the applicant had a “short assignment job” and had “no time to handles this”; and
d)the applicant has suffered depression and is stressed. Her emotions are out of control.
In her second affidavit, the applicant stated:
a)she went into shock after her dismissal and contacted a lawyer online who lodged the application at the FWC. After this was unsuccessful, she was referred to the Employment Law Centre of WA. It was difficult for the applicant to make contact with the Employment Law Centre of WA and other firms were too costly;
b)the applicant attended the doctor for stress and depression and was recommended a course of treatment with medications and massage;
c)a woman the applicant met in passing advised her to contact Legal Aid. The applicant did so immediately and had appointments on 7 and 21 November 2019; and
d)the applicant does not speak English as her first language. While the applicant does speak and understand English, as she was so stressed she could not concentrate which is why she did not lodge the application herself and kept seeking legal assistance.
Mr Jones’ submissions do not address the Extension of Time Application. They do, however, make some comments on the merits of the application which the Court will refer to in due course.
Consideration
Delay and Explanation
The length of the delay is 35 days. This is over two times the statutory limit. This is not an insignificant period of time.
The length of the delay weighs against an extension being granted unless it can be supported by an acceptable explanation.
The applicant’s explanation for her delay is that:
a)she could not obtain legal assistance;
b)she was stressed and overwhelmed;
c)the applicant was “busy”; and
d)English is not her first language.
The applicant says that she had another job and “was busy”. This might be read as implying that the applicant was indifferent or chose not to prioritise or “contest” these proceedings.
There is no right to legal representation in civil matters: New South Wales v Canellis (1994) 181 CLR 309. It is, however, unfortunate that legal advice services are strained and the applicant could not access these as required.
While the Court does not doubt the applicant was stressed and this made it difficult for to understand how to progress her matter, this is an unfortunate and common reaction for many people who have lost their jobs. However, a great many of these same people come to this Court without representation and are nonetheless able to advance their case without legal assistance and despite being stressed.
Despite these concerns, the Court accepts that the applicant is more vulnerable than others because English is not her first language. In some cases, this might not be relevant. However, in circumstances where the applicant is already in a distressed state of mind, a language barrier will no doubt make it harder for her than others to do what needs to be done. Further, the applicant does appear to have attempted to obtain legal assistance.
Overall, the Court accepts that the explanation provided for the delay is adequate.
In the circumstances, the explanation provided for the delay weighs in favour of granting an extension of time.
Prejudice and Fairness
The respondent does not claim to be prejudiced if the extension of time is granted.
The events relevant to this matter occurred in mid-2019. The Court is of the view that the delay would not have any effect in relation to the evidence that may be relied upon. Neither party would be prejudiced by the delay if the matter proceeds to final hearing. Nor would there be any unfairness in relation to the conduct of the proceeding.
In terms of fairness, the applicant alleges that the respondent has breached the FW Act in dismissing her because she expressed concern with completing a task she was asked to do. Should this be found to be a breach of s.340, as a matter of fairness the respondent must be held to account.
These factors weigh in favour of an extension of time being granted.
Merits
The merits of the application will generally be afforded the most weight when determining whether an extension of time should be granted. It would be contrary to the interests of the administration of justice for the Court to extend time to pursue an application that has no prospects of success.
When considering the merits of the application the Court must not do so on the basis that it needs to be satisfied that the matter will succeed. Rather, the Court must take a reasonably impressionistic approach: MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585. It must also consider the fact that the applicant is unrepresented and her claim may not be properly articulated.
The application claims (without alteration) as follows:
The applicant was asked in early July to complete a procedure document and the applicant expressed concerns that she was being asked to do this when these documents should already exist. The applicant further stated that the documents ought to be written by management, the applicant concerns were ignored. On 25 July the applicant attended a meeting to discuss her probation. The applicant found that her direct manager had informed the operation of director that she had refused to complete this task, and he stated he was not happy with this. The applicant was then terminated and not event allowed to explain.
The applicant seeks compensation in the sum of $18,750.
As noted, the respondent has not filed a response.
The submissions filed by Mr Jones provided as follows:
a)the applicant was still in her probationary period;
b)the applicant has not identified any provisions of the FW Act that are relevant to her claim nor the grounds upon which it is based; and
c)the applicant was asked to complete a lawful task and did not do so. This is why she was dismissed.
To the extent that the respondent says that the applicant was in her probationary period, this is no defence to a general protections claim. If this were an unfair dismissal claim than that may be the case. However, a probationary period provides no immunity for an employer within the context of Part 3-1.
It is true that the applicant has not identified what provisions of the FW Act she relies upon. However, an inference can be drawn that the applicant is relying on s.340. On its face the brief allegation in the applicant’s substantive application is that she was dismissed because she made a complaint (that “complaint” being in the form of her expressing concerns).
There is minimal material currently before the Court. The Court has no evidence pertaining to the events in question. There is also a lack of detail or substance before the Court. However, it is not disputed that the applicant was dismissed.
The “concerns” the applicant says she has raised are not yet properly particularised. She has not provided any reasons for why the “documents” should already exist or why “management” should have written them. This may well go to whether the “concerns” constituted the exercise of a workplace right. Without context, however, the Court cannot draw any conclusions in this regard.
There is a live issue as to whether a workplace right has been exercised. Should the Court be satisfied of that matter, the reverse onus will be enlivened and it the respondent will need to prove that the applicant was not dismissed because of that right.
On the face of the material that is before the Court, the applicant’s case does not appear strong; however, that is not to say that it is without merit. There are, arguably, issues which require further examination.
This too weighs in favour of time being extended.
Conclusion – Extension of Time
While the length of the delay is not insignificant, the Court finds the applicant’s explanation for that delay is acceptable. Further, the Court does believe there will be any significant prejudice to the respondent if an extension is granted. Finally, there is merit in the application. The Court need not be satisfied the applicant has a strong case. Rather, the Court need only find at this stage that there is a reasonably arguable case. Here, the Court considers there to such a case.
In light of the above findings, there will be an order that the time in which the applicant has to commence her application in this Court be extended to the date of filing.
The Representation Application
The respondent seeks to have Mr Jones appear on its behalf. As noted, r.9.04 of the Rules requires that a corporation be represented by a lawyer unless leave is given by the Court. Mr Jones is not a lawyer.
When considering whether leave should be granted, the Court is guided by a number of factors. Critically, the Court must ensure that any order made will not prejudice the interests of the administration of justice.
In Wong v Dong Lai Sun Massage Pty Ltd (2016) 305 FLR 423 at [19] the following non-exhaustive list of factors was identified:
a) the relative complexity or simplicity of a matter;
b) whether a non-lawyer appears, or has previously appeared, for any of the parties;
c) the objects and purposes of the FCCA Act and FCC Rules, including the impact of those objects and purposes on case management considerations;
d) whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party;
e) whether there has been appropriate opportunity to arrange legal representation;
f) the financial position of a party; and
g) whether the granting of leave to appear is opposed.
Mr Jones made submissions to the Court on behalf of the respondent about why he should be granted leave to represent the respondent. Those submissions provide as follows:
a)the respondent does not want to retain a solicitor to act on its behalf as this matter is not complex;
b)Mr Jones represented the respondent in a telephone conference conducted by the FWC in regard to the applicant’s claims. He is confident that he is fully conversant both with those claims and with the respondent’s response to them; and
c)he is able to competently represent the respondent’s interests in this matter and engaging a solicitor to do so is unnecessary.
The applicant did not file any materials relevant to the Representation Application. She indicated at the directions hearing that she did not agree. However, on 18 March 2020, the applicant emailed Chambers as follows:
APPLICANT SUBMISSION
Date of Document: 13th February 2020
Filed By: The Applicant
THE COURT ORDERS THAT ITEM 3:
3. Agreed the respondent to be represented by a non-lawyer of the case.
It appears that Ms Wong has agreed to Mr Jones representing the respondent. Nonetheless, as no formal submissions were filed in the Court registry, the Court will briefly consider the Representation Application for completeness.
Consideration
Mr Jones states that the matter is not complex. However, there are significant complexities when determining what may or may not be a workplace right.
There is no evidence before the Court in relation to the respondent’s financial position. Mr Jones’ submissions do not say that that the respondent cannot “afford a lawyer”. Rather, he says they simply “do not want one”. Whether or not the respondent “wants” a lawyer is irrelevant.
Further, there does not appear to be any confirmation as to whether Mr Jones has the authority to act on the respondent’s behalf. Mr Jones signed his submissions as a “Director” of the respondent but this is not entirely conclusive.
Nonetheless, the Court is prepared to proceed on the basis that Mr Jones does have the authority to act on behalf of the respondent.
Mr Jones appeared on behalf of the respondent at the directions hearing in this matter. There was nothing at that appearance that would suggest that Mr Jones will not act impartially or cause prejudice to the respondent.
Further, there is also nothing to suggest that should Mr Jones represent the respondent that this will negatively impact the just, fair and expeditious conduct of the matter overall.
Finally, it does appear that the applicant now agrees that Mr Jones should act for the respondent.
Conclusion – Representation Application
While the Court has some concerns, overall the Court is prepared to grant leave for Mr Jones’ to appear on behalf of the respondent. Mr Jones is familiar with the circumstances surrounding the applicant’s employment and there is no indication that he will not act in an appropriate manner going forward.
Mr Jones’ right to appear on behalf of the respondent will stand until further order of the Court. Pending the outcome of the mediation, the Court may then require that the respondent to be represented. This will be assessed when, and if, this needs to be addressed.
Conclusion
The Court is satisfied that an extension of time should be granted for the applicant to commence proceedings in this Court. The Court is also satisfied that leave should be granted to Mr Jones to represent the respondent until further order of the Court.
As is the usual course in matters of this type, the Court will make further orders to program the matter to a mediation before a Registrar of this Court. Should the matter not resolve at the mediation, it will return to the Court for further directions.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 April 2020
Key Legal Topics
Areas of Law
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Employment Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Jurisdiction
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Standing
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