Wright v Fluor Australia Pty Ltd

[2015] FCCA 3027

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT v FLUOR AUSTRALIA PTY LTD [2015] FCCA 3027

Catchwords:
INDUSTRIAL LAW – Extension of time required to commence proceedings pursuant to the Fair Work Act 2009 (Cth) – whether delay adequately explained – whether prejudice to the respondent – merits of substantive application – whether the applicant has been afforded procedural fairness – no reasonable prospects of success – extension of time refused.

Legislation:

Fair Work Act 2009 (Cth), ss.368, 370

Brodie-Haans v MTV Publishing (1995) 67 IR 298

Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490

Applicant: NELSON JOHN WRIGHT

Respondent: FLUOR AUSTRALIA PTY LTD

File Number: SYG 996 of 2015

Judgment of: Judge Nicholls

Hearing date: 26 June 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondent: Mr B Swebeck of HBL Ebsworth

ORDERS

1. The application to extend time is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 996 of 2015

NELSON JOHN WRIGHT

Applicant

And

FLUOR AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

1. Mr Nelson John Wright (“the applicant”) sought to make an application to this Court in the Fair Work Division under the Fair Work Act 2009 (Cth) (“the FWA”) on 13 April 2015, that alleged dismissal from employment with Fluor Australia Pty Ltd (“the respondent”) in contravention of a general protection, namely “racial abuse”. In the documents filed by the applicant, including a “Form 2”, he also sought interlocutory orders for an extension of time within which to lodge a competent application.

2. The applicant was issued a certificate pursuant to s.368 of the FWA by a Deputy President of the Fair Work Commission on 11 March 2015 (“the s.368 Certificate”), certifying that the Fair Work Commission was satisfied that all reasonable attempts had been made to resolve the dispute between the parties and that any further attempts were likely to be unsuccessful.

3. Section 370(a)(ii) of the FWA requires an applicant to make any application to this Court, in relation to the dispute formerly before the Fair Work Commission, on or before 14 days after the date of the issue of the s.368 Certificate. The applicant filed his application with the Court 19 days after the expiration of that time limit (25 March 2015), on 13 April 2015.

4. The respondent opposed the grant of the extension of time and sought that the application be dismissed for lack of competency.

Principles for Extension of Time

1. The legal principles for the grant of an extension of time in this jurisdiction were considered in Brodie-Haans v MTV Publishing (1995) 67 IR 298 (“Brodie-Haans”) at 299 – 300 per Marshall J:

   “Briefly stated the principles are:

   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.”

2. Further, I note and apply the consideration of this Court in Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490 per Judge O’Sullivan at [9] – [17]:

   “[9] In Whitfield v One Key Resources Pty Ltd [2014] FCCA 553 Judge Lucev noted that the Fair Work Amendment Act 2013 (Cth) effected amendments to the provisions of the Fair Work Act dealing with commencement of general protections court applications. His Honour noted the amendments did not change the substance of the relevant provisions.

   [10] The relevant provisions pertaining to the application are contained in the Fair Work Act. Section 370 now provides:

   ‘A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

   (a) both of the following apply:

   (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

   (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

   (b) the general protections court application includes an application for an interim injunction.

   Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see section 727 and 728).

   Note 2: For the purposes of subparagraph (a)(ii), 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.’

   [11] In Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’), the Industrial Relations Court of Australia outlined the principles which relate to the exercise of the discretion. Whilst the list is not exhaustive nor binding, it is instructive of the relevant principles to be applied. In Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28 Judge Lucev considered the provisions of the Fair Work Act in place at that time in relation to extension of time for bringing a general protections court application. In Clarke v Service to Youth Council Incorporated [2013] FCA 1018 the Federal Court having referred to the discussion of those provisions in the above mentioned decision described the reference to the criteria in Brodie-Hanns ‘...as a reference to the kinds of considerations which may be relevant.’

   [12] Those principles include 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.

   [13] Action taken by the applicant to contest the termination, other than applying under the Fair Work 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.

   [14] Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

   [15] The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

   [16] The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

   [17] 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

1. Of note is the following:

   1)The Form 2, accompanying the application, was signed on 24 March 2015, within the time for making a competent application.

   2)The applicant signed the application form on 10 April 2015. This, with the Form 2, was filed on 13 April 2015.

2. The applicant did not provide any explanation through evidence, by way of any affidavit, to explain the delay in the commencement of these proceedings. The applicant was provided with the opportunity to file and serve any evidence by way of affidavit by orders made on 6 May 2015. The applicant did not utilise this opportunity.

3. Before the Court, the applicant referred frequently to the substantive elements of his application to the Court. The Court made numerous attempts to focus the applicant’s mind on the question of the extension of time and to explain that the Court was not in a position to operate in the manner adopted by the Fair Work Commission in mediations.

4. The applicant did attempt to provide some explanation as to the differing dates on the forms filed with the Court on 13 April 2015. The applicant stated that he went to “Legal Aid” after the mediation concluded before the Fair Work Commission and “instructed Legal Aid” to file an application with the Court. He claimed, however, that the solicitor had made “an error” and had not filed both documents with the Court’s Registry, just the Form 2. There is nothing on the Court file to indicate that this occurred. Nor was there any evidence from this solicitor that this had occurred. I also note that this indicates that the applicant had some legal advice in the making of his application to the Court. He stated, before the Court that this advice had ended after the unsuccessful mediation before the Fair Work Commission.

5. The applicant then stated that “as soon as he found out” that the solicitor had not filed the application, he did so. This can be seen from the signing of the application on 10 April 2015, a Friday, and its subsequent filing on 13 April 2015, the following Monday. I note that the applicant’s address for service is in Dubbo, which may have provided some explanation for the short “delay” between 10 and 13 April 2015.

6. As outlined in Brodie-Hanns, any explanation for a delay is not the only consideration for the Court in whether it should exercise its discretion to extend time. The respondent submitted that the applicant did not have any reasonable prospects of succeeding in his substantive application. In written submissions, the respondent submitted ([10] of the respondent’s written submissions):

   “…(a) The Applicant was employed in September 2014 as a Rail Worker on a project located in Port Hedland, Western Australia.

   (b) The Applicant’s employment was terminated because he did not hold a current driver’s licence.

   (c) It was an inherent requirement of the Applicant’s job to hold a current driver’s licence.

   (d) Clause 6 of the Respondent’s enterprise agreement ‘Pilbara Region PHPB Maintenance (AWU) Enterprise Agreement 2014’ (the ‘EA’), which covers and applies to the Applicant, states that the Applicant must maintain a drivers licence with failure to comply possibly leading to termination of employment.

   (e) The Respondent has not contravened the General Protections provisions of the FW Act and, accordingly, should not be liable for any compensation or any pecuniary penalty.

   (f) The Respondent admits that during the Applicant’s employment, on or about 17 October 2014, the Applicant made a complaint about racial abuse. The Respondent dealt with the Applicant’s complaint and, on or about 18 October 2014, the complaint was resolved between the relevant parties.

   (g) On 23 October 2014, the Applicant commenced a period of Rest and Recreation (R&R) and flew home from the work site. On 30 October 2014, the Applicant returned to the work site to commence his next swing. On 31 October2014, the Applicant notified the Respondent that he had lost his driver’s licence.

   (h) On 31 October 2014, the Respondent advised the Applicant that holding a current driver’s licence was an inherent requirement of the role that he held and that failure to hold a current driver’s licence may result in termination of employment.

   (i) On 9 November 2014, the Respondent agreed to allow the Applicant additional time to obtain a current driver’s licence. On 9 November 2014, the Respondent arranged flights home for the Applicant, prior to end of his swing, in order to allow the Applicant to obtain a current driver’s licence and again advised the Applicant that failure to hold a current driver’s licence may result in termination of employment.

   (j) On 9 November 2014, the Applicant travelled from the work site in Port Hedland, Western Australia to his home State in order to obtain a current driver’s licence. On 15 November 2014, the Respondent received an email from the Applicant raising the initial complaint that had been resolved and finalised on 18 October 2014.

   (k) On 18 November 2014, the Respondent contacted the Applicant, discussed the earlier complaint, and confirmed that the matter had previously been resolved.

   (l) On 18 November, the Respondent once again confirmed with the Applicant that his ongoing employment with the Respondent was subject to him obtaining a current driver’s licence.

   (m) On 19 November 2014, the Respondent contacted the Applicant and again confirmed that the earlier complaint had been resolved, and once again confirmed with the Applicant that his ongoing employment with the Respondent was subject to him obtaining a current driver’s licence.

   (n) On 19 November 2014, the Applicant advised the Respondent that he had not taken any action to obtain a current driver’s licence.

   (o) On 19 November 2014, the Respondent again advised the Applicant that failure to hold a current driver’s licence may result in termination of employment.

   (p) On 22, 23 and 24 November 2014, the Respondent attempted to contact the Respondent to discuss the progress of the Applicant obtaining a current driver’s licence but the Respondent was unable to make contact with the Applicant.

   (q) On 24 November 2014, the Respondent advised the Applicant in writing (by email and post) that an inherent requirement of his role was to maintain an unrestricted driver’s licence, and the Applicant was required to obtain a current driver’s licence by 5 December 2014. The Respondent also advised the Applicant that failure to obtain a current driver’s licence would result in termination of employment on 6 December 2014.

   (r) On 4 December 2014, the Applicant advised the Respondent that he had been unable to obtain a current driver’s licence.

   (s) On 5 December 2014, the Respondent advised the Applicant in writing by email that as the Applicant had failed to obtain a current driver’s licence that the employment would be terminated effective 6 December 2014.

   (t) From 9 November 2014 to 6 December 2014, while the Applicant was absent from work, the Applicant remained on full pay.

   (u) The Applicant had been employed for just over 2 months at the date of termination. The Applicant was within the 3 month probationary period set out in clause 5 of the EA and his letter of appointment dated 17 September 2014.

   (v) The Respondent confirms that while it dismissed the Applicant from his employment for being unable to meet the inherent requirements of his role, it did not dismiss the Applicant because he:

   (i) had a workplace right; or

   (ii) had, or had not, exercised a workplace right; or

   (iii) proposed, or proposed not to, or had at any time proposed or proposed not to, exercise a workplace right…”

7. The respondent also relied on evidence by way of affidavit. I note that the respondent was given the opportunity to file further evidence in relation to this element of its resistance to the extension of time, which it utilised. The affidavit evidence was as follows:

   1)Affidavit of Catherine Pollard, National Industrial Relations Manager, made on 9 June 2015.

   2)Affidavit of Adina Rebecca Teggins, Lawyer, made on 9 June 2015.

   3)Affidavit of Wayne Oliver Bryan Smith, Project Supervisor, made on 2 July 2015.

   4)Affidavit of Catherine Mary Pollard, National Industrial Relations Manager, made on 3 July 2015.

   5)Affidavit of Damien John Casson, Project Manager, made on 3 July 2015.

8. The evidence substantiated the respondent’s submissions in relation to the reason for the termination of the applicant’s employment. There is no apparent reason not to rely on the respondent’s evidence. Further, the submissions that arose from the evidence have merit.

9. The applicant’s submissions before the Court did not clearly address this aspect of the respondent’s claims. His statements, with reference to his substantive claims, merely repeated the claims set out in his application and Form 2, and did not adequately, or clearly, respond to the respondent’s submissions. Further, he did not seek any further opportunity to file any evidence to contest the respondent’s submissions and evidence.

Conclusion

1. In the circumstances, I am satisfied on the evidence that the applicant does not have a reasonable prospect of succeeding in his substantive application. In that light the granting of any extension of time to make a competent application lacks utility. It is appropriate to refuse the extension of time. I will an order accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 12 November 2015