Bird v Biraban Local Aboriginal Land Council [2016] FCA 580

FEDERAL COURT OF AUSTRALIA

Bird v Biraban Local Aboriginal Land Council [2016] FCA 580 Appeal from: Bird v Foreshew [2015] FCCA 3315

File number: NSD 76 of 2016

Judge: PERRAM J

Date of judgment: 26 May 2016

Legislation: Fair Work Act 2009 (Cth)

Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Date of hearing: 15 April 2016

Registry: New South Wales

Division: General Division

National Practice Area: Employment and Industrial Relations

Category: No Catchwords

Number of paragraphs: 19

Counsel for the Applicant: Ms T Phan

Solicitor for the Applicant: McAuley Hawach

Counsel for the Respondent: Mr D Mackay

Solicitor for the Respondent: Bilbie Dan

ORDERS NSD 76 of 2016

BETWEEN: COLLEEN BIRD Applicant

AND: BIRABAN LOCAL ABORIGINAL LAND COUNCIL Respondent

JUDGE: PERRAM J DATE OF ORDER: 26 APRIL 2016

THE COURT ORDERS THAT:

1. The applicant be granted leave to appeal from the orders made by the Federal Circuit Court on 11 December 2015 in proceeding SYG2515/2015. 2. The appeal be allowed. 3. The orders of 11 December 2015 be set aside and in lieu thereof it be ordered that: 1. The applicant be granted an extension of time nunc pro tunc to 11 September 2015 in which to bring her general protections application. 2. The respondent's application for summary dismissal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This was an application for leave to appeal from orders made by the Federal Circuit Court on 11 December 2015 in Bird v Foreshew [2015] FCCA 3315. On 26 April 2016, I made orders granting leave to appeal. At the time that I did so, the parties indicated that the appropriate course, in light of that grant of leave, was that the appeal should be allowed. In the events which have transpired, I will make the following orders with effect from 26 April 2016: '1. The applicant be granted leave to appeal from the orders made by the Federal Circuit Court on 11 December 2015 in proceeding SYG2515/2015. 2. The appeal be allowed. 3. The orders of 11 December 2015 be set aside and in lieu thereof it be ordered that: "1. The applicant be granted an extension of time nunc pro tunc to 11 September 2015 in which to bring her general protections application. 2. The respondent's application for summary dismissal be dismissed."' 2 I granted leave to appeal because the orders of the Court below proceeded upon misapprehensions both as to the law and the facts in a way which made appellate intervention inevitable in light of the fact that they resulted in the dismissal of the applicant's case in that Court. 3 The applicant was employed by the respondent. She claimed to have been dismissed from the respondent's employ on 23 January 2015. She lodged an application with the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) ('the Act'). The Commission sought to mediate the dispute but on 26 August 2015 certified that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. Once that certificate was issued the applicant was obliged, if she wished to appeal to the Federal Circuit Court, to do so within 14 days, that is to say, by 9 September 2015: s 371. Instead, she filed her application with that Court on 11 September 2015, two days outside the time limit. 4 At the hearing on 11 December 2015, the applicant tendered a medical certificate from Dr James Connell, which was in the following terms: '… I am writing in support of Miss Collen Bird who has recently submitted an application to the Federal Circuit Court to have a [sic] her case heard. Colleen is worried that upon submitting this application her paperwork was completed just outside of the required time frame. During the time that this application was due Colleen has been dealing with significant mental health issues related to this incident and was starting treatment which initially caused increased anxiety and other side effects which made it difficult to complete this task. The treatment has now reached a steady state and Colleen is much more able to practically participate in these legal proceedings. I hope the trivial amount of time that this application was delayed will not impact her ability to be heard in this legal setting. …' 5 In terms this was an expert opinion that it was the applicant's medical condition that made it difficult for her to comply with the 9 September 2015 deadline. In its brief ex tempore reasons, the Federal Circuit Court observed at [3]: 'Ms Bird has provided a medical report, which identifies that as at August 2015, she was suffering from depression and anxiety and a further medical report dated 19 October 2015 in which the doctor identifies Ms Bird as having significant mental-health issues and other issues of anxiety. Nothing in the medical report identifies a basis upon which Ms Bird was not able to attend to the filing of the process within the time identified.' (Emphasis added.) 6 With respect, I am unable to accept the Court's characterisation of the October report. It is not correct to say that it did not identify a basis on which the applicant 'was not able to attend to the filing of the process within the time identified'. That is, in fact, all the report does. The Court's characterisation of the report is untenable. This was its first error. 7 The Court below was also of the view that the applicant's proceeding did not disclose a sufficiently arguable case to warrant an extension of time. It said this (at [5]): 'Notwithstanding that the short period involved the matters identified by the applicant are not matters that provide a proper or adequate explanation for the failure to file the document within the 14 days. However, of greater significance is the fact that I am not satisfied that there is any seriously arguable case that warrants an extension of time in the interests of the administration of justice where on the evidence before this Court the applicant was lawfully dismissed for misconduct. I am not satisfied that the applicant has provided an adequate explanation for the delay and I find that the circumstances identified do not disclose a sufficiently arguable case to warrant an extension of time.' 8 I am unable to understand how the Court arrived at this conclusion which is wrong and, in any event, unsupported by reasons which are adequate. 9 As to the former, the applicant's case was set out in Part G of her General Protections Application form and was as follows: '1. The applicant had workplace rights pursuant to s 341(1) Fair Work Act 2009. 2. The applicant had workplace rights pursuant to s 356 of the fair work act 2009 where she raised concerns with employer the non provision of pay slips. 3. The applicant had workplace rights pursuant to s 19 (primary duty of care) of the Work health and safety act 2011 (NSW) whereby an employer has a primary duty of care to provide a safe workplace environment. Please see attached items.' 10 She went on to allege a number of other rights in her typed attached document. These were as follows: 'a. The Applicant had workplace rights pursuant to s 356 of the Fair Work Act 2009 where she raised with her employer the non-provision of pay slips; b. The Applicant had workplace rights pursuant to s 323(1) of the Fair Work Act 2009 to be paid wages in full for the performance of her work. c. The Applicant had workplace rights pursuant to s19 (primary duty of care) of the Work Health and Safety Act 2011 (NSW) whereby an employer has a primary duty of care to provide a safe workplace environment; d. The Applicant had workplace rights pursuant to s20 of the Work Health and Safety Act 2011 (NSW) whereby a person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. e. The Applicant had workplace rights pursuant to s27 (Duty of officers) of the Work Health and Safety Act 2011 (NSW) whereby an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. f. The Applicant had workplace rights pursuant to s47 (Duty to consult workers) of the Work Health and Safety Act 2011 (NSW) whereby a person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. g. The Applicant had workplace rights pursuant to s104/105 of the Work Health and Safety Act 2011 (NSW) whereby a person must not engage in discriminatory conduct against an employee not limited to dismissal; h. The Applicant had workplace rights pursuant to s106(H) of the Work Health and Safety Act 2011 (NSW) whereby an employer is prohibited from dismissing an employee because they raised issues regarding work health and safety. i. The Applicant had workplace rights pursuant s.1317AA of the Corporations Act 2001 which protects employees disclosing information to a statutory authority, a company auditor, a company director or senior manager regarding contraventions of the Corporations Act 2001. j. The Applicant had workplace rights pursuant to Section 341(1)(c) of the Fair Work Act 2009 whereby he is able to make a complaint or enquiry regarding her workplace rights and wage entitlements. k. The Applicant had workplace rights pursuant to The Workers Compensation Act 1987 (NSW) l. The Applicant had workplace rights pursuant to The Workers Compensation Regulations 2010 (NSW);' 11 It was plain from Part G and its attachment that she was alleging that she was dismissed for exercising these rights. This section in the form began with the words 'What are the grounds for the claim that the employee was dismissed in contravention of a general protection?' 12 Section 340 of the Act has, inter alia, the effect of prohibiting an employer from dismissing an employee for exercising a 'workplace right', a concept elucidated in s 341(1) in these terms: '341 Meaning of workplace right Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee—in relation to his or her employment.' 13 'Workplace law' is defined in s 12 of the Act as follows: '"workplace law" means: (a) this Act; or (b) the Registered Organisations Act; or (c) the Independent Contractors Act 2006; or (d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).' 14 On its face, therefore, the applicant's allegation that she had been terminated for raising concerns about the pay slips did not fall within s 341. However, it seems to me that paragraph 3 of Part G of her application and subparagraphs (h), (j), (k) and (l) of the attachment made claims that she had been dismissed for exercising something which was arguably a workplace right. The laws appearing in those paragraphs were, in effect, health and safety laws of the kind referred to in the definition of 'workplace law' in s 12. 15 I am unable to discern how the Federal Circuit Court could conclude that such a case was not seriously arguable without knowing anything about the facts. The only evidence before the Court were affidavits filed on behalf of the respondent which explained the procedural history of the matter together with its version of events in a highly truncated form. The evidence supported the (correct) proposition that the case was incompetent unless an extension of time were obtained. It does not contain material which comes close to showing the applicant's case was hopeless on the facts. I am unable to ascertain a plausible basis upon which a Court might arrive at the conclusion that the applicant's case was not arguable when it disclosed a case under s 340. The conclusion of the Court below is indefensible on this aspect. That is the second error. 16 The third error arises from the inadequacy of the Court's reasons. It is not an adequate discharge of the duty of a Court to give reasons apt to make efficacious appellate scrutiny to say of a case that it is not reasonably arguable without any explanation of why this might be so: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [48]. The Court's reasons below tell this Court nothing of why that Court arrived at the conclusion it did. 17 In those circumstances the applicant's claim for a grant of leave to appeal was unanswerable. The respondent to the appeal was correct to consent to the allowing of the appeal once leave was granted. 18 Once the appeal is allowed one has a case in which the case was legally viable and where an adequate explanation for the delay had been given. The extension of time should not have been refused. 19 The orders will be as set out above at paragraph [1]. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.