Zarto v M.A. Services Group Pty Ltd T/As M.A. Security Guards
[2016] FCCA 1560
•24 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZARTO v M.A. SERVICES GROUP PTY LTD T/AS M.A. SECURITY GUARDS | [2016] FCCA 1560 |
| Catchwords: INDUSTRIAL LAW – General protections court application under Fair Work Act 2009 – application for extension of time – whether extension of time is appropriate |
| Legislation: Fair Work Act 2009 (Cth) ss.361, 365, 366(1), 366(2), 368(3)(a), 370(a)(ii) Federal Circuit Court Rules 2001(Cth) rr. 2.05, 2.05(3), 2.07B |
| Cases cited: Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28 Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging [2001] FWA 2496 |
| Applicant: | DEE ZARTO |
| Respondent: | M.A. SERVICES GROUP PTY LTD T/AS M.A. SECURITY GUARDS |
| File Number: | BRG 386 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 17 June 2016 |
| Date of Last Submission: | 17 June 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 24 June 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitor for the Respondent: | Ms Tsakiris |
| Solicitors for the Respondent: | Macpherson Kelley Lawyers |
ORDERS
Pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth), the time within 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(3)(a) of the Act on 7 April, 2016 be extended to and include 23 April, 2016.
The application be adjourned to 29 July, 2016 for directions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG386 of 2016
| DEE ZARTO |
Applicant
And
| M.A. SERVICES GROUP PTY LTD T/AS M.A. SECURITY GUARDS |
Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time to allow the applicant to commence proceedings against the respondent for contraventions of the general protection provisions of the Fair Work Act 2009 (Cth). The respondent opposes the application.
Both the applicant and respondent have filed an outline of submissions in compliance with some directions made by the Court on 6 June, 2016. The respondent alleges that the applicant is eight days out of time in filing the application. The applicant admits that she is out of time, however alleges that she is one day out of time. It follows that there is some dispute regarding when the application was filed.
The application arises against the following general background. The applicant was employed by the respondent as a loss prevention officer from 29 July, 2015. The applicant alleges that between 14 January, 2016 and 20 January, 2016 she had made two complaints to the respondent alleging that she had been underpaid.
On 22 January, 2016 the applicant alleges that she requested the respondent attend mediation with the Fair Work Ombudsman and that the request was refused. The applicant alleges that on 25 January, 2016 she was advised by the respondent that she would no longer be receiving any shifts.
The Fair Work Commission held a conciliation conference between the parties on 5 March, 2016. The conference was unsuccessful and on 7 April, 2016 a certificate was issued pursuant to s.368(3)(a) of the Fair Work Act.
Pursuant to s.370(a)(ii) of the Fair Work Act a general protections court application must be made within 14 days after the s.368(3)(a) certificate was issued, or within such further time as the Court may allow. Given the issue date of the certificate in this case, the applicant had up to and including 21 April, 2016 to file her application with the Court.
The applicant contends that she filed her application on 22 April, 2016 and so was one day out of time. The respondent contends that she filed her application on 28 April, 2016 and so was seven days out of time. For the reasons that follow, neither party’s contention is correct.
The court file (held electronically) reveals that Ms Zarto’s Initiating Application and her Form 2 (Application – Dismissal from employment in contravention of a general protection) was filed on 22 April, 2016 – so one day late. The court file, I am satisfied, correctly records the correct filing date.
Ms Zarto filed her application by electronic communication as litigants are now required to do in proceedings invoking this Court’s Fair Work jurisdiction. Rule 2.05 of the Federal Circuit Court Rules 2001(Cth) permits that course. Ms Zarto filed her documents using the Commonwealth Courts Portal ( Rule 2.07B FCCR provides:
2.07B Other requirements for filing by electronic communication
(1) If a document sent by a person by electronic communication is required to be signed or stamped, and is accepted at a Registry, a Registrar must:
(a) for a document that, under these Rules, must be endorsed with a date for hearing—insert a notice of filing and hearing as the first page of the document; and
(b) for any other document—insert a notice of filing as the first page of the document; and
(my emphasis)
The Initiating Application and the Form 2 on the Court file each have such a notice as the first page of the document. It is these notices that are the source of the respondent’s confusion about the filing date. The notice on the Initiating Application is in the following terms:
NOTICE OF FILING AND HEARING
This document was lodged electronically in the FEDERAL CIRCUIT COURT OF AUSTRALIA (FCC) on 22/04/2016 11:20:05 PM AEST and has been accepted for filing under the Court’s Rules. Filing and hearing details follow and important additional information about these are set out below.
Filing and Hearing Details
Document Lodged: Application - Fair Work Division (filed with Form 2)
File Number: BRG386/2016
File Title: Dee Zarto v M.A. Services Group Pty Ltd t/as M.A. Security Guards
Registry: BRISBANE REGISTRY- FEDERAL CIRCUIT COURT – FEDERAL
LAW
Reason for Listing: First Court Date
Time and date for hearing: 06/06/2016, 9:30 AM
Place: Court No. 1, Level 1, Harry Gibbs Commonwealth Law Courts
Building Level 6, 119 North Quay, Brisbane
[Court Seal] [signature of Registrar]
Dated: 28/04/2016 11:52:29 AM AEST Registrar
Important Information
As required by the Court’s Rules, this Notice has been inserted as the first page of the document which has been accepted for electronic filing. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties.
The Reason for Listing shown above is descriptive and does not limit the issues that might be dealt with, or the orders that might be made, at the hearing.
The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.
The notice on the Form 2 was in identical terms save that it did not contain any details next to the entries “Reason for Listing”, “First Court Date” and “Time and date for hearing”.
By their terms, both notices were signed by the Registrar (electronically) on 28 April, 2016 at 11:52:29 am AEST. That is the date contended for by the respondent as the date of filing of each document. However, FCCR 2.05(3) provides:
2.05 How documents may be filed
…
(2) A document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp, as required by Division 2.4.
Note: For the design, custody and affixation of the seal and validity of stamps: see sections 47 and 48 of the Act.
(3) However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; and
(b) in any other case—on the next day the Registry is open for business.
Note: Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is filed.
The substance of FCCR 2.05(3) is repeated in the filing notice inserted on the front of the filed documents in this case:
The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.
The date and time of lodgement of each document is recorded on the filing notice attached to each as follows:
a)For the Initiating Application - 22/04/2016 11:20:05 PM AEST; and
b)For the Form 2 - 22/04/2016 11:20:05 PM AEST.
In my view, it is beyond argument, having regard to FCCR 2.05(3) that the documents were both filed on 23 April, 2016. They were received electronically after 4.30pm on 22 April, 2016 and so they are taken to have been received on the next working day – 23 April, 2016. The paragraph extracted above that appears on each notice accurately reflects the terms of FCCR 2.05(3).
The respondent submits that the Federal Court Registry received the Application on 28 April, and that the “elodgment statement stamping notification” confirms that the Application had been accepted and processed on 28 April, 2016. But that argument pays no attention to the notation about lodgement of the document at the top of each (“This document was lodged electronically in the FEDERAL CIRCUIT COURT OF AUSTRALIA (FCC) on 22/04/2016 11:20:05 PM AEST…”), FCCR 2.05(3) and the convenient summary of the effect of that rule at the foot of the filing notice.
Attached as annexure 2 to the respondent’s written submissions is a document entitled “Lodgment Stamping Notification, eLodgment ID 320293 on New File, BRISBANE REGISTRY”. The respondent’s submissions suggest that the terms of that document confirm that Ms Zarto’s documents were accepted and processed on 28 April, 2016. And so they were. That accords with the date on the filing notice near the Registrar’s signature. But it says nothing of when the document was filed. As I have sought to point out earlier in these reasons, that is a function of FCCR 2.05(3). The date of lodgement, acceptance and filing may well be three separate dates.
I find that Ms Zarto’s application was filed on 23 April, 2016 and is therefore two days out of time.
There is no dispute that the Court has power to extend the time for the making of Ms Zarto’s application. The question is whether the Court should extend that time.
There is dispute about the matters to which the Court must look to inform its decision about the extension of time. The respondent contends that Ms Zarto must demonstrate “exceptional circumstances” which warrant an extension of time. The respondent’s solicitors argue their case by reference to two authorities, namely Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 and Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging [2001] FWA 2496. However, these authorities are unhelpful because they deal with applications to extend time to commence an application to Fair Work Australia under s.365 of the Fair Work Act. The time for the commencement of such an application is governed by s.366(1)(a) of the Fair Work Act. The time limit under that section can be extended: s.366(1)(b) of the Fair Work Act. However the circumstances in which the time limit might be extended are prescribed in s.366(2) of the Fair Work Act. By that subsection, the Fair Work Commission may allow a further period in which to commence an application under s.365 if the Commission is satisfied that there are exceptional circumstances, taking into account the matters enumerated in that subsection.
Unlike s.366(2) however, s.370(a)(ii) has no requirement for there to be exceptional circumstances present before the requisite extension is permitted.
The authorities consistently suggest that for the purposes of s.370(a)(ii) of the Fair Work Act special or exceptional circumstances need not be demonstrated. It is generally accepted that the principles that ought to be applied in determining applications for extensions of time such as this are those identified, for example, by Marshall J in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298. At pages 299-300 his Honour suggested that the following matters would usually be relevant:
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.”
Whilst his Honour in that case was dealing with a provision in the Industrial Relations Act 1988 (Cth), that provision is similar to s.370(a)(ii) of the Fair Work Act and it has been consistently applied in this Court in connection with the present type of application: e.g., Transport Workers’ Union v School Bus Contractors Pty Ltd [2011] FMCA 28, Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490, Nixon v Cal Dive International (Australia) Pty Ltd [2015] FCCA 2614, Chand v Soft Star Pty Ltd [2016] FCCA 121.
Ms Zarto filed her Application and Form 2 two days beyond the 14 day time limit. Whilst the delay is not great, the prima facie position is that the time limit should be observed unless there is an acceptable explanation of the delay. According to the evidence, the reason why Ms Zarto did not file her application against the respondent within the 14 day time period was difficulty encountered by her in understanding and using the Court’s electronic lodgement system with which Ms Zarto was unfamiliar.
As the respondent points out in its written submissions Ms Zarto’s evidence is that she made attempts to lodge her application on 21 April, 2016. She knew that she needed to file her application by 21 April, 2016 and attempted to do so. But as the respondent points out, Ms Zarto mistakenly lodged her application to a “different category using eLodgment”. Instead of attempting to rectify the situation straight away, Ms Zarto had to go to work and so she made another attempt the next day. That did not go smoothly either. Ms Zarto’s application was rejected by eLodgment on 22 April, 2016 as it was not apparently properly signed or executed. According to the filing notices attached to each of Ms Zarto’s documents the issues were rectified by her late in the evening of 22 April, 2016. It was the documents lodged on 22 April, 2016 that were subsequently accepted for filing on 28 April, 2016.
Ms Zarto’s evidence provides an explanation for the delay in the filing of her application by two days.
There is no doubt that Ms Zarto has actively pursued her claim and has actively contested the termination by making a timely general protections application through the Fair Work Commission.
The respondent does not identify any prejudice to it by Ms Zarto being granted an extension of time to commence her claim. I accept Ms Zarto’s evidence that the period of delay is not such that the respondent would find it difficult to have access to all records and witnesses.
The merits of Ms Zarto’s application are an important consideration. Having regard to the facts outlined in Ms Zarto’s Initiating Application and her Form 2 her claim is clearly arguable. On the facts as she alleges them to be, there was dispute about underpayment of her remuneration and a subsequent dismissal. Those matters were temporally proximate. Prima facie that is enough to engage s.361 of the Fair Work Act so as to cast upon the respondent an onus to show that the adverse action taken against Ms Zarto was not taken because she exercised her workplace right to make an inquiry or complaint to her employer about her remuneration.
There is no unfairness to the respondent beyond having to meet the applicant’s claim, which, but for the difficulties she encountered with the electronic lodgement system would have been filed within time.
Conclusion
I am satisfied it is appropriate to extend time for the commencement of Ms Zarto’s application. It would, in the circumstances, be unfair to deny Ms Zarto a chance to commence her proceedings in the circumstances discussed above. Her proceedings, on their face, are not so devoid of merit that the requested extension should be refused.
Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 June, 2016.
Date: 24 June 2016
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