Federal Court of Australia Chou v Digital61 Pty Ltd [2021] FCA 640 File number: ACD 39 of 2020 Judgment of: ABRAHAM J Date of judgment: 11 June 2021 Catchwords: INDUSTRIAL LAW – General protections claim under Fair Work Act 2009 (Cth) – termination of employment – where applicant filed application outside the statutorily prescribed period – application for extension of time Legislation: Fair Work Act 2009 (Cth) ss 340, 368, 370, Part 3-1 Industrial Relations Act 1988 (Cth) s 170EA Workplace Relations Act 1996 (Cth) s 170CP Cases cited: Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Clarke v Service to Youth Council Inc [2013] FCA 1018 Jennings v Salvation Army [2003] FCA 1193; 128 IR 366 Moloney v ATM Logistics Pty Ltd [2018] FCA 640 Division: Fair Work Division Registry Australian Capital Territory National Practice Area: Employment and Industrial Relations Number of paragraphs: 41 Date of hearing: 29 March 2021 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Mr. A Opas Solicitor for the Respondent: Mackenzie Workplace Law ORDERS ACD 39 of 2020 BETWEEN: IRWIN CHOU Applicant AND: DIGITAL61 PTY LTD Respondent order made by: ABRAHAM J DATE OF ORDER: 11 June 2021 THE COURT ORDERS THAT: 1. The application for an extension of time is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ABRAHAM J: 1 On 4 October 2019 the applicant commenced employment with the respondent, Digital61 Pty Ltd, a Canberra-based IT company. He was employed as the Operations Manager pursuant to a written employment agreement dated 2 October 2019. On 6 March 2020, the respondent terminated the applicant's employment with four weeks' notice. 2 The applicant seeks an extension of time to bring a general protections court application in respect of his dismissal from employment, which he contends is in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act). An application of this kind must be brought within 14 days after the Fair Work Commission (FWC) issues a certificate stating that the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful: s 370(a)(ii) of the FW Act. The applicant filed his originating application one day outside of the statutorily prescribed 14 day period. 3 A judge of this Court directed that the applicant file an application for the extension and imposed a timetable for so doing, together with the filing of written submissions and evidence in support of the application. 4 Pursuant to the orders, on 20 October 2020 the applicant filed an Interlocutory Application seeking an extension of time pursuant to s 370(a)(ii) of the FW Act together with a supporting affidavit sworn by him that day. The applicant did not file any written submission in accordance with the orders. 5 The respondent opposed the application, and relied on the affidavits of Bill Ratcliff (Director of Digital61 Pty Ltd) affirmed 2 November 2020; Troy Rollan (Delivery Executive who supervised the applicant up to 6 March 2020) affirmed 2 November 2020; and Rayan Pulis (Service Delivery Manager who supervised the applicant after 6 March 2020) affirmed 2 November 2020. The respondent filed written submissions. 6 The applicant was unrepresented at the hearing. 7 For the reasons below, the application for an extension of time is dismissed. Legal principles 8 Leave under s 370(a)(ii) of the FW Act is discretionary: Clarke v Service to Youth Council Inc [2013] FCA 1018 (Clarke v Service to Youth Council Inc) at [5]. 9 The applicant bears the onus of satisfying the Court that the extension of time should be granted: Clarke v Service to Youth Council Inc at [9]. That onus is to be discharged in the context that the legislature has fixed a short limitation period. 10 Section 370 of the FW Act contains a note as follows: "[f]or 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." 9 Addressing the nature of the note, White J said in Clarke v Service to Youth Council Inc at [5]: 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 [Fair Work Act 2009 (Cth)] 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. And see: Moloney v ATM Logistics Pty Ltd [2018] FCA 640 at [9]. 11 In Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 (Brodie-Hanns), Marshall J summarised the principles applicable to the grant of an extension of time under s 170EA of the Industrial Relations Act 1988 (Cth), which is similarly worded to s 370(a)(ii) of the FW Act, at 299-300] 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; and (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. 12 In Clarke v Service to Youth Council Inc, White J at [7] further observed: 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. Preliminary matters 13 The respondent's opposition to the extension is twofold: first, the lack of merit in the substantive claim; and second, the lack of adequate explanation for failing to comply with the time limit. 14 As noted above, the applicant did not file any written submissions in support of the application, despite the order to do so. 15 During the hearing no explanation was provided for that omission. He submitted that this was an application for an extension of time and he had given an explanation for that in his affidavit. It is apparent from exchanges between the Bench and the applicant during the hearing, that he had received the respondent's written submission and read its contents. 16 A reading of the respondent's written submission, which includes a reference to the relevant legislative provisions and legal principles, makes it abundantly clear that an explanation for the delay is only one consideration in the exercise of the Court's discretion to extend time. That would have been readily apparent to the applicant. The applicant was served with these submissions months before the hearing. Despite that, the applicant did not attempt to answer the submissions in writing, nor in his initial oral submissions. Rather, as noted above, he initially limited his submission as to his explanation. In that context, and by reference to the principles which were accurately summarised in the respondent's submissions (which he said he had before him) an opportunity was provided to him to address the other relevant considerations. Given the deficiencies in the applicant's pleadings, and the basis of the respondent's opposition, I directed his attention in particular to the merits of his case. He then made some submissions on the merits of his case. Consideration 17 It is appropriate to focus on the issues of the explanation for the delay and the merits of the substantive application, as they comprise the two bases of challenge. There is no suggestion that any of the other considerations relevantly adversely affect the grant of the application. The respondent accepts that in pursuing the proceedings in the FWC and in this Court the applicant has generally actively contested his dismissal with the respondent. Explanation for the delay 18 The reason for the delay which is given by the applicant in his affidavit in support of his extension is that there were difficulties which he encountered in navigating the claim procedure and the Court's processes as a self-represented litigant. He said that sometime between 3 and 7 August 2020, he sought assistance from Justice Connect who advised him that he would need to file the FWC s 368(3)(a) certificate himself. The applicant said that he needed to familiarise himself with the Court's processes and to learn that he would need to file an originating application and statement of claim. He said it took two days for him to obtain access to the Court's e-lodgement system and he attempted to lodge his originating application on three occasions (on 11, 12 and 13 August 2020), all of which were rejected. It was not until the fourth attempt at lodgement, on 13 August 2020, that he successfully filed his documentation. The applicant annexed the emails from the Court rejecting the filings which support the attempts made. 19 The respondent challenges the adequacy of that explanation as providing insufficient detail, as the basis on which the applications were rejected was not provided. That is, there is no explanation as to the state of the documentation when it was rejected. That is correct, although some limited information is provided in the emails as to why the documents were rejected, including that they did not comply with the rules. 20 It can be accepted that there was an attempt to file the application within time, albeit, the basis of the rejection is not known. There can be no suggestion that the respondent was prejudiced. Although, as I noted above in [11], the mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. Moreover, there can also be no suggestion that the applicant consciously filed the proceedings late, in that he had made an attempt to file it within the time limit. This would not tell against the grant of the extension if there was a proper basis to do so. Merit of the substantive application 21 The main issue of concern is the other basis of opposition, the merits of the matter. 22 If the substantive merits of the applicant's case are viewed as having limited prospects of success, then that may impact on the Court's assessment of the significance of other factors including those conceded above. In Jennings v Salvation Army [2003] FCA 1193; 128 IR 366 (a case involving the application of the Brodie-Hanns principles to an application for an extension of time under s 170CP of the Workplace Relations Act 1996 (Cth)), Marshall J observed at [27]: In the passage from Haining, quoted at [10] above [Haining v Drake (1997) 87 FCR 248], the Full Court said that a highly meritorious case might persuade a decision maker to accept the adequacy of an explanation that would not pass muster in the case of little apparent merit. It may be said that meritorious factors that might go against the grant of an extension of time would be overshadowed by the fact that there is a highly meritorious case to be advanced. If, on the other hand, the court is of the view that there is a case that has very limited prospects of success, that also might legitimately persuade the decision maker not to accept other matters that might either go in favour of an applicant or be neutral. In the circumstances of this case I consider that the merits overwhelmingly support the position of the Salvation Army. 23 The merits of the substantive application may be afforded significant weight. It cannot be in the interests of justice to extend time where the underlying proceedings have no ostensible merit and or no real prospects of success. To do otherwise would be to unnecessarily involve considerable additional resources being expended by the parties and the court. 24 It may be said that meritorious factors that might go against the grant of an extension of time would be overshadowed by the fact that there is a highly meritorious case to be advanced. If, on the other hand, the court is of the view that there is a case that has very limited prospects of success, that also might legitimately persuade the decision maker not to accept other matters that might either go in favour of an applicant or be neutral. In the circumstances of this case I consider that the merits overwhelmingly support the position of the respondent. The assessment must recognise the fact that the applicant is unrepresented and his or her claim may not be properly articulated. 25 The applicant's claim as described in the originating application is that he was dismissed by the respondent in contravention of Part 3-1 of the FW Act. He asserts that he relies on s 368 of the FW Act and asks the Court for compensation, which is particularised as $1,907 for monies owed, $5,991 for loss of income and $100,000 for reputational damage. 26 The applicant's statement of claim is a narrative explanation of events extending from prior to the commencement of his employment with the respondent, his termination, and through to events following his termination. 27 In summary, the applicant described his commencement of employment and why he accepted the position. He explained the circumstances of cataract surgery he had done and the time he had off of work as a result. He described a meeting between himself and Mr Rollan on 3 February 2020, during which he was counselled for arriving late to work on 28 January 2020, 29 January 2020 and 3 February 2020, and in which Mr Rollan advised him he was expected to start work at 8 am. Mr Rollan advised the applicant that he would be placed into formal attendance management. The applicant said he advised Mr Rollan that he was unaware that his start time was 8 am. 28 The applicant said in his statement of claim: In my personal life during February, I had become friends with a person who appeared to be under distress and ended up staying in my apartment. My absence increased after my formal performance warning however after several in-depth discussions, I discovered my friend had been a victim of domestic violence. 29 The applicant said that during a discussion with Mr Rollan on 5 March 2020 he told him that he needed to take leave on 6 March 2020 to help his friend (whom he met in February 2020) who had experienced domestic violence. He said that Mr Rollan advised him that his performance was not satisfactory. The applicant stated that this was the first occasion he had been advised this and he disputed the claim. The applicant claims inter alia that "even though I was unable to attend site, as often as I should, I would prioritise the times I did attend to ensure that I had all face to face meetings and focused on building rapport with relevant Digital61 and AMSA staff. In terms of my position description, I had done everything required, despite not being able to attend site on a full-time basis. Troy did not agree however he was unable to provide any examples of where I had not met performance requirements aside from attendance". 30 On 6 March 2020, Mr Rollan advised the applicant initially by telephone and later by written notice, that his employment with the respondent was terminated with four weeks' notice. On an unspecified date the applicant advised Mr Pulis (who had taken over the role from Mr Rollan) that he was assisting his friend (who had experienced domestic violence) to move house and that he would be in at work as soon as possible, and that as his friend's end of lease inspection would be at 10:30 am on 10 March 2020, he would know his availability after that time. On 13 March 2020 Mr Pulis contacted the applicant enquiring as to when he would return to work; and the applicant advised that his friend's end of lease had been completed, but he needed to assist his friend to move into her new home. On 17 March 2020, the applicant emailed Mr Pulis updating him about his situation and requesting the remainder of the week off from work (noting that he had 49 hours of personal leave) and Mr Ratcliff advised him that his notice period was reduced to 24 March 2020. The applicant claimed that in the respondent's final termination payment they did not pay him for his annual leave; reduced his standard salary; and withdrew its sponsorship for his Baseline Security Clearance, which would have assisted him to obtain alternative employment. 31 The respondent put on evidence which included inter alia, that there had been a discussion about work expectations (including that it was an 8 am start) on 14 January 2020; the records reflecting daily commencement times for the applicant; the formal performance warning and the circumstances of its issue; conversations with the applicant thereafter when his attendance was still late; a conversation on 2 March 2020 concerning his performance (warning inter alia, that his attendance times were still unsatisfactory, and there were issues with the attendance spreadsheet), the events of 5 (which included further warning him about his performance) and 6 March 2020, including that leave was approved for 6 March 2020, and the events thereafter (including the termination and giving of notice of four weeks). I note that the applicant's employment contract provided for notice of one week. The evidence includes that Mr Rollan became aware of other performance issues in February 2020, when he stepped in to cover the applicant's work on occasions he was absent. 32 As will be apparent from the summary of the statement of claim, the allegations specify no workplace right under s 340 of the FW Act which is claimed to be relied upon as the basis for a dismissal in contravention of a general protection. Nor are any alleged contraventions discernible from the statement of claim or the grounds alleging contravention in the originating application. If an extension of time were granted an amended originating application and statement of claim would need to be filed. 33 That said, during the hearing the applicant submitted that his termination was unlawful because his employment was terminated without notice and with no warning. Pausing there, as noted above, the evidence before the Court, which includes his letter of termination reflects that the applicant was initially given notice of four weeks, although his contract only required one week. That was later reduced to 24 March 2020 as a result of the applicant failing to attend work without seeking proper approval. That notice was given is acknowledged in the statement of claim. 34 During the hearing it also appeared that the applicant alleges that the work place right he says was contravened is his ability to take leave. He said "I believe it is reasonable for anyone to ask for leave after working for an employer for five months. And I did ask for the leave for the next day, which I understand is, I guess, not the best, but being the case that it was, I did request leave the next day and it was denied with no real reason as to why that leave was denied". He submitted that "I believe my right is to be able to be absent from work without consequences due to unforeseen circumstances. I don't know if that's a right specifically. I – I believe the right was being able to be that situation where I was able to take leave to – for whatever reason". He submitted his employment was terminated because he requested leave. He submitted that "the only warnings that I did get were turning up late, which I corrected after that warning was given. Everything else is essentially irrelevant to the fact that I got terminated due to requesting leave". 35 I note that the applicant's submission about correcting his attendance times after he was given a warning is inconsistent with what is said by him in his statement of claim. As noted above at [31], that document reflects that his absence increased after the formal warning. This is also reflected by the attendance records, which record that the applicant was late on 11 of the next 14 working days after the warning had been given. His submission about being late on only three occasions also will be difficult to establish given his admissions in his statement of claim and the attendance records. 36 As articulated by the applicant in the hearing, it appears there may be a factual dispute between the respondent and the applicant, in that the respondent said that he was terminated on 6 March 2020 because of work performance issues. The applicant said it was because he asked for leave. However, that too would be difficult for the applicant given that even on the applicant's statement of claim he has made admissions about his attendance at work. The statement of claim itself tends to support the view that there were performance issues. There is also documentary evidence as to there being performance issues and that that was the basis of his termination. He was given a formal warning on 3 February, which included that his "failure to rectify performance issues" could affect his ongoing employment. 37 As the respondent contended, it is difficult to discern how the applicant's assertions, in the circumstances, could form the basis of any claim under the general protections in Part 3-1 of the FW Act. 38 In any event, the applicant did not appear to submit that he had an entitlement to take leave on request effectively without notice to assist his friend, accepting any entitlement to annual leave was subject to the respondent's business requirements. Rather it appeared ultimately to be submitted that it was unreasonable to refuse his request, having worked for the respondent for five months. Although the applicant, in correspondence with the respondents, referred to the fact he considered the leave he had taken to be emergency leave, there was no such entitlement. As the respondent submitted, s 106A of the FW Act does not apply to his circumstance. The applicant was informed of this by the respondent. Nonetheless, I note that despite the request for leave being made on 5 March 2020 for the following day, the respondent did not prevent to applicant taking annual leave on 6 March 2020 to assist his friend, with annual leave being granted. 39 I note also that the applicant claims compensation for monies he says were owed, which he contended is $7,989. Although he also claims of $100,000 for reputational damage that claim is unexplained in the statement of claim. In this regard I observe that the statement of claim provides no apparent basis for it or the amount sought. 40 Bearing in mind that the applicant is unrepresented, I make the assessment of the substantive application having regard to the fact that his claims may not be properly articulated or formulated. That said, the materials before the Court do not disclose a reasonably arguable basis upon which to proceed. Even on the lesser standard necessary in assessing merits on an extension of time application, there is no obviously discernible merit in the claim as a general protections court claim. Even if there were merit, it would have limited prospects of success. I am therefore not satisfied that it is appropriate in the circumstances of this matter to grant the extension of time in this matter. 41 The application for an extension of time to file the originating application is dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate: Dated: 11 June 2021