FEDERAL COURT OF AUSTRALIA Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Citation: Clarke v Service to Youth Council Incorporated [2013] FCA 1018 Parties: DEBRA ANNE CLARKE v SERVICE TO YOUTH COUNCIL INCORPORATED, PAUL EDGINTON, LEE DYER and MICHAEL CLARK File number: SAD 170 of 2013 Judge: WHITE J Date of judgment: 10 October 2013 Catchwords: PRACTICE AND PROCEDURE – General protections court application under Fair Work Act 2009 (Cth) – application for extension of time under s 371 – whether applicant has satisfied the Court that an extension of time is appropriate Held: Application for extension of time refused. Legislation: Australian Human Rights Commission Act 1986 (Cth) Part IIB Fair Work Act 2009 (Cth), Part 3.1, Division 8, ss 351, 352, 361, 365, 369, 371 Cases cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 referred to Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 referred to Transport Workers' Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327 referred to Date of hearing: 4 September 2013 Place: Adelaide Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr R Manuel Solicitor for the Applicant: AM Legal Counsel for the First, Second, Third and Fourth Respondents: Mr M Douglas Solicitor for the First, Second, Third and Fourth Respondents: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION SAD 170 of 2013 BETWEEN: DEBRA ANNE CLARKE Applicant AND: SERVICE TO YOUTH COUNCIL INCORPORATED First Respondent PAUL EDGINTON Second Respondent LEE DYER Third Respondent MICHAEL CLARK Fourth Respondent JUDGE: WHITE J DATE OF ORDER: 10 October 2013 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for an extension of time be dismissed. 2. The general protections court application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION SAD 170 of 2013 BETWEEN: DEBRA ANNE CLARKE Applicant AND: SERVICE TO YOUTH COUNCIL INCORPORATED First Respondent PAUL EDGINTON Second Respondent LEE DYER Third Respondent MICHAEL CLARK Fourth Respondent JUDGE: WHITE J DATE: 10 october 2013 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant seeks an extension of the time in which to bring a general protections court application in respect of her dismissal from employment with the respondent, SYC. A judge of this Court directed (in effect) that the application for the extension of time be heard in advance of the other issues raised by the application. 2 The applicant's employment was terminated on 25 January 2013 on the stated ground of redundancy. The applicant contends, however, that the real reason for the dismissal was her ill-health and, accordingly, that the dismissal contravened Part 3.1 of the Fair Work Act 2009 (Cth) (FWA). 3 As contemplated by Part 3.1 Div 8 of the FWA, the applicant applied to the Fair Work Commission (FWC) for it to deal with the alleged contravention (s 365). Following a conference on 4 March 2013, the FWC was satisfied that all reasonable attempts to resolve the dispute were unlikely to be successful and, under s 369 of the FWA, issued a certificate to that effect. 4 Section 371(2) of the FWA specifies that a general protections court application of the relevant kind must be made within 14 days of the issue of the certificate by the FWC "or within such period as a court allows on an application made during or after those 14 days". The applicant did not file the present application in this Court until 4 July 2013, more than 15 weeks after the expiry of the 14 day period. Hence she seeks an extension of time. 5 Section 371(2) contains a note 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. This note appears to be in the nature of a useful reference by the Parliament, i.e. to assist readers in identifying matters which may bear on the exercise of a court's discretion under the provision. Some authorities have addressed the question of whether the note forms part of the FWA at all (for example, Transport Workers' Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 201 IR 327). In my opinion, it is not necessary to consider that question for the purposes of the resolution of the present application. It is sufficient to treat the note as a reference to the kinds of considerations which may be relevant. 6 In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300, Marshall J summarised the principles applicable to the grant of an extension of time under s 170EA of the Industrial Relations Act 1988 (Cth) 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. 7 Brodie-Hanns was decided before the High Court's decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In that case, after reviewing the rationale for limitation periods, McHugh J (with whom Dawson J agreed) said (at 553): A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. … A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. Similarly, Toohey and Gummow JJ said (at 547): The discretion … is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. (Citation omitted.) 8 Section 371(2) of the FWA is different from the legislative provision considered in Taylor. In addition, the 14 day period which it fixes is much shorter than the three year period which the plaintiff sought to extend in that case. Nevertheless, I consider that the observations in Taylor just quoted are pertinent in the present context. That is especially so given that one of the forms of relief sought by the present applicant is an order that her employment be reinstated. Generally, the longer the period from a termination, the more difficult reinstatement of employment will be. The relatively short limitation period of 14 days may be understood as a legislative recognition of that difficulty. The Parliament intends that applications under s 371 should be brought promptly so that the practical difficulties which an order for reinstatement can occasion may be minimised. In my opinion, this is an important consideration in relation to applications of the present kind. 9 Accordingly, I proceed on the basis that it is for the applicant to satisfy the Court that an extension of time is appropriate. That onus is to be discharged in the context that the legislature has fixed a short limitation period. Background 10 The evidence on the application for the extension was wholly documentary. It indicates that the applicant commenced employment with SYC on 10 October 2011, initially working three days per week but increasing to four days per week in May 2012. Her original position was that was of Event Coordinator. 11 The applicant underwent surgery for a brain tumour on 15 October 2012 and was off work altogether until 6 November 2012. Thereafter she returned to work on a graduated basis while undergoing rehabilitation. At the time of her termination, the applicant was working 30 hours per week. Approximately 40% of that time was, with SYC's approval, working from home. 12 On Monday, 21 January 2013, the applicant was called to a meeting in which she was told that her position was being targeted for redundancy because of budgetary issues. She was then escorted from the premises of SYC but asked to attend a second meeting on 25 January 2013. At that meeting, the applicant's redundancy was confirmed and her employment terminated with immediate effect. 13 The applicant then lodged an application with the FWC in relation to her dismissal. Her concerns were summarised in the following paragraphs of that application: [7] I also feel very strongly that the decision to select my role for redundancy and to terminate my employment related to the fact that I had been on an extended period of sick leave due to the benign brain tumour which I had been diagnosed as suffering … on 11 October 2012 and which was removed on 15 October 2012. [8] … I feel very strongly that had I not been unwell and away from the workplace, that SYC would not have selected my position for redundancy. [9] Making a decision to terminate my employment because of my temporary illness is unlawful. Discriminating against me on the basis of my illness is also unlawful. Both acts, if proven, will constitute a breach of the general protections provisions set out in Part 3-1 of the Fair Work Act and entitle me to seek a civil remedy against SYC. 14 As can be seen, the applicant contends that her dismissal was unlawful. In the present proceedings, she alleges contraventions by SYC of ss 351 and 352 of the FWA. Essentially, these are the same complaints which underpinned her application to the FWC. 15 The individual respondents to the proceedings are senior officers of SYC. The applicant alleges that they were involved in the contraventions of SYC of the FWA. 16 The applicant sought advice from Bradbrook Lawyers in relation to the termination of her employment. That firm wrote to SYC on 11 February 2013, but the applicant was unrepresented at the conference in the FWC on 4 March 2013. 17 As already noted, the applicant did not commence her proceedings in this Court until 4 July 2013. Consideration 18 It is convenient to consider the application for the extension of the 14 day period under the following headings. The length of the extension required 19 As already seen, the applicant needs an extension of time of over 15 weeks. This is a relatively long period bearing in mind the applicable limitation period of 14 days. The explanation for the proceedings not being commenced in time 20 The applicant acknowledges that she was informed by O'Callaghan SDP in the FWC that she had only a limited period in which to commence court proceedings. Further, the s 369 Certificate issued by the FWC, under a prominent heading "Important Note", had the following endorsement: The person dismissed … has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Magistrates Court for a civil remedy order, unless the Court extends the time for making such an application. There is no evidence that the applicant read this note but, given its prominence, it is reasonable to suppose that she did so. Accordingly, I proceed on the basis that this is not a case of an applicant who allowed the limitation period to expire because of ignorance of its existence. 21 As already noted, the basis of the applicant's present claim for relief is essentially the same as that which she asserted in the FWC. This is not a case of an applicant learning of the possible basis for a claim only after the expiration of the limitation period. 22 The applicant attributes her failure to commence proceedings within time to her emotional and physical health. She deposed that at the beginning of March she did not have the "emotional strength" to make the decision to take SYC to Court, saying that that may have put her long term emotional and financial well-being at risk. The applicant said that she suffered from fatigue, mild dizziness, loss of appetite and irritability, and attributed those symptoms to the medication which she was taking following the surgery for the removal of the brain tumour. She deposed to having attended two sessions with a psychologist during March and said that her general practitioner had prepared a mental health care plan for her. The applicant considers, in retrospect, that she has been suffering from depression, having been reluctant to leave her home, and being fatigued, crying frequently and feeling helpless. She deposed that she has now recovered to the stage at which she feels she can make major decisions and face the prospect of litigation. In particular, she became aware, in June 2013, that two other former SYC employees had commenced action against SYC in respect of the termination of their employment. Through this means, she became aware that it may be possible to obtain legal assistance and moral support in the litigation. 23 SYC objected to the admissibility of much of the applicant's affidavits on this topic. With the exception of two matters, I overruled those objections, noting that the applicant's statements were in the nature of statements of her subjective feelings and belief. However, the applicant did not adduce any medical evidence to support a conclusion that impaired health or an impaired ability to make decisions concerning litigation accounted for the omission to commence the proceedings between 4 March and 4 July 2013 and, in particular, within the 14 day limitation period. 24 SYC pointed to the absence of such evidence and to other aspects of the applicant's conduct. These included the circumstances that, despite the medication which the applicant had been taking following her brain surgery, she had, as at 25 January 2013, resumed working some 30 hours per week; and that she had been sufficiently competent to represent herself in the FWC conference on 4 March 2013. From February to May, the applicant was able to work for another employer. This was some eight hours of work each week for Tomich Wines. The applicant did not adduce any evidence as to the means by which she obtained that employment, i.e. whether by way of job application, personal referral etc. The applicant described that work as "very difficult" given her emotional state. 25 The applicant did not adduce evidence of impairment in her day-to-day activities between March and July which may have suggested that her decision-making or ability to act on decisions was impaired. Instead, the tenor of her affidavit appears to be a retrospective rationalisation of her failure to institute proceedings in time. 26 SYC placed considerable emphasis on a letter which the applicant had sent by email to its chairperson on the evening of 4 March. By that letter, the applicant sought to inform the board of SYC of the circumstances of her dismissal. The letter concluded with the following: I don't ask for or expect any action from this letter. I just wanted to ensure that you in your role as Chair are aware of how SYC behaved towards me, a supposedly highly regarded and trusted employee. If my example is anything to go by, I truly believe SYC has some issues to consider in how it makes people redundant in a respectful and appropriate way. You may be aware that I filed an application with Fair Work Australia, as I strongly feel that my position in SYC was weakened by my illness and subsequent absence, and I was an easy target. I don't plan to take it any further, as SYC has far more financial and legal resources to call on than me, and this whole sorry saga has already affected me emotionally far more than I am able to currently deal with, given the events of the past 5 months. I trust you take this in the spirit it is intended, and that SYC flourishes. Whilst I am devastated by its treatment of me, I really enjoyed my work there and the philosophy and goals of the organisation. (Emphasis added.) 27 SYC emphasised the applicant's statement that she did not plan to take any further action. It submitted that the letter evidenced a considered decision by the applicant and that the commencement of proceedings in July 2013 simply reflected a change of mind. 28 Obviously enough, the applicant has changed her mind but that, of itself, is not fatal to the present application. The issue remains one of whether the applicant has demonstrated that it is appropriate for the extension to be granted. 29 I am satisfied that the applicant's letter does evidence a positive decision on her part as at 4 March 2013. It suggests a deliberate decision on her part at that time not to bring proceedings and, in effect, a deliberate decision on her part to allow the limitation period to expire. It is, of course, possible that these decisions were influenced by the applicant's emotional and physical health. However, the possibility that that was so points up starkly the absence of confirmatory evidence from any health professional and the absence of detailed evidence from the applicant as to her day-to-day activities in March 2013. 30 In summary, although one cannot help but be sympathetic to the applicant in light of the surgery for the removal of a brain tumour, and the side effects she experienced, there are aspects of her explanation for the delay in commencing proceedings which are unsatisfactory. Prejudice to SYC 31 SYC did not contend that it would suffer "real prejudice" by reason of the delay. It did point to the costs it would incur in defending the claim if the extension of time was granted. However, this is not a relevant prejudice, i.e. a prejudice which it would not have suffered if the proceedings had been commenced in time. The merits of the application 32 Counsel for the applicant described her case as "compelling". This submission seemed to depend for its force on the inference which the applicant contended should be drawn from the sequence of events: the applicant was a valued employee; she required time off work because of her brain tumour; her employment was terminated shortly before she was to resume her previous workload; and she was the only person whose position was made redundant at that time. Counsel's submission was that SYC had "constructed an excuse to cover the true reason for its action", with that true reason being a desire to get rid of an employee with the potential for further ill-health, in contravention of the FWA. 33 On the other hand, Mr Clark, the senior employee of SYC who determined that the applicant's position should be made redundant, has deposed that matters relevant to the applicant's health had nothing to do with the redundancy, and that it was "purely a financial decision". 34 Given the application for the extension of time is being dealt with as a preliminary issue, it is not practical for the Court to form a view as to the merits of these competing positions. Accordingly, I consider that this is not a case in which the Court's assessment of the merits of the applicant's claim can be a significant consideration. I can do no more than accept that the applicant may have an arguable claim and that, if the extension of time is not granted, she will not be able to pursue that claim. 35 I do, however, keep in mind that, underpinning the applicant's claim, is an asserted vindication of her human rights under provisions of the FWA. The potential for further action 36 Both counsel referred to alternative forms of action available to the applicant. They referred in particular to the potential for proceedings under Part IIB of the Australian Human Rights Commission Act 1986 (AHRC Act). Mr Manuel, for the applicant, submitted that the prospect that the applicant could still bring such proceedings within time militated against SYC being prejudiced by the grant of an extension in the present proceedings. He also submitted that the applicant would be prejudiced if she was left to pursue proceedings under Part IIB because the AHRC Act does not contain a reversal of the onus of proof provision like s 361 of the FWA. 37 Mr Douglas, for SYC, did not concede that proceedings under the AHRC Act would be available to the applicant but submitted that, if they were, that availability diminished the prejudice which the applicant may otherwise suffer by reason of a refusal of the extension which she now seeks in the present proceedings. 38 It is not necessary to explore these competing contentions in detail. The possible availability of an alternative remedy under the AHRC Act seems to me to be a relatively neutral consideration in the present circumstances. Conclusion 39 As I indicated at the outset, it is for the applicant to satisfy the Court that grounds exist for exercising the discretion to extend time in her favour. I am not satisfied that she has done so. I am satisfied that the applicant made a conscious decision within the limitation period not to commence proceedings. There are aspects of her explanation for the failure to take action before 4 July 2013 which I regard as unsatisfactory. Given these matters and the relatively long extension which the applicant requires, I consider that this is not one of the cases in which considerations of justice require that strict compliance with the limitation period fixed by the Parliament should, in effect, be waived. 40 The application for an extension of time under s 371 of the FWA is, accordingly, dismissed. This has the consequence that the general protections court application is also dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 10 October 2013