Federal Court of Australia Gabriel v Titan Recruitment Pty Ltd [2023] FCA 1243 File number(s): VID 457 of 2023 Judgment of: MCELWAINE J Date of judgment: 18 October 2023 Catchwords: INDUSTRIAL LAW – Application for extension of time to make a general protections court application pursuant to s 370 of the Fair Work Act 2009 (Cth) – application approximately 70 days out of time – where applicant has not sufficiently explained periods of delay following the issue of a certificate by the Fair Work Commission – where applicant has not addressed the merits of his application or explained nature of relationship with the second respondent – application dismissed Legislation: Fair Work Act 2009 (Cth) s 370 Cases cited: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Gabriel v Titan Recruitment Pty Ltd [2023] FWC 230 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 9 Date of last submissions: 26 July 2023 (First Respondent) 24 August 2023 (Second Respondent) 7 September 2023 (Applicant) Date of hearing: Determined on the papers Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Johnson Winter Slattery Solicitor for the Second Respondent: In-house counsel ORDERS VID 457 of 2023 BETWEEN: ANGELITO 'ALLAN' GABRIEL Applicant AND: TITAN RECRUITMENT PTY LTD First Respondent CALIBRE PROFESSIONAL SERVICES ONE PTY LTD Second Respondent order made by: MCELWAINE J DATE OF ORDER: 18 October 2023 THE COURT ORDERS THAT: 1. The applicant's application to extend time pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) is refused. 2. The originating application lodged on 19 June 2023 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCELWAINE J 1 Mr Gabriel is a self-represented applicant who seeks to engage the jurisdiction of this Court pursuant to s 562 of the Fair Work Act 2009 (Cth) (FW Act) relating to an alleged termination of his employment on 2 September 2022. By an originating application lodged on 19 June 2023, Mr Gabriel claims that the respondents have contravened various protections within the meaning of s 340 of the FW Act. His basal complaint is that he was dismissed from his employment with each of the respondents, Titan Recruitment Pty Ltd and Calibre Professional Services One Pty Ltd because he exercised workplace rights after being subject to unlawful bullying and harassment. Mr Gabriel does not distinctly explain how it is that he was concurrently employed by each of the respondents, although there appears to be a labour hire arrangement of some form. He says that on 14 February 2020, he entered into a contract with Titan and from 9 March 2020 was "placed with" Calibre "as a host employer". Titan accepts that it was the employer and that Mr Gabriel's employment with it concluded on 2 September 2022. Calibre contends that there was no employment relationship. 2 On 4 November 2022, Mr Gabriel filed an application with the Fair Work Commission. Titan objected on the basis that it had been filed beyond the statutory timeframe for doing so. On 25 January 2023, a Deputy President of the Commission granted Mr Gabriel an extension of time to deal with his dismissal dispute pursuant to s 365 of the FW Act: Gabriel v Titan Recruitment Pty Ltd [2023] FWC 230. Thereafter on 9 March 2023, Mr Gabriel's claims were the subject of an unsuccessful conciliation. On 27 March 2023, a Commissioner of the Commission issued a certificate pursuant to s 368(3)(a) to the effect that the Commission was satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful. Thus, from the issue of that certificate, the first precondition to the commencement of the proceeding in this Court pursuant to s 370(a)(i) was satisfied. The second required Mr Gabriel's general protection application to be made within 14 days of the issue of the certificate, or within such further period as the Court allows. Mr Gabriel did not commence this proceeding within the 14-day period, which expired on 10 April 2023. His application to this Court is approximately 70 days out of time. 3 Mr Gabriel requires an extension of time. He has not filed an affidavit which deposes to the reasons for his delay, and which sets out an evidentiary basis for excusing it. Rather, he makes generalised assertions of contestable fact in his written submissions in support of 14 pleaded paragraphs in his statement of claim. In broad summary, Mr Gabriel contends as follows: (1) He accepts that he received the certificate from the Fair Work Commission on 27 March 2023. (2) On 2 April 2023, Mr Gabriel sent email correspondence addressed to the Commission purporting to make an application to arbitrate his disputes. (3) In response, he was advised that the file had been closed and the function of the Commissioner had concluded. Despite that advice, Mr Gabriel sent further email correspondence to the Commission on 4 April 2023, reiterating his request for arbitration and advice as to "any procedural forms to be filled-up". He did not receive a reply. He sent follow up emails to the Commission on 20 April, and 7 and 27 May 2023. He did not receive a reply. (4) On 30 May 2023, he did receive a reply in the form of general advice as to the steps required to initiate arbitration before the Commission. Notably, in that email, Mr Gabriel was advised that if the respondent did not consent to arbitrating the disputes, then he could make an application to the "Federal Circuit Court" or to this Court, which was required to be made within 14 days of the issue of the certificate pursuant to s 368. He was also advised that he should "consider all your options including getting legal advice before you make an application". (5) Dissatisfied with that response, Mr Gabriel sent two follow-up emails on 30 May and in the first requested a response to his "application" and in the second asserted that the Commission had ignored his "voluminous emails" and that "as you know, I have been a victim here and the way you handle my case adds insult to injury". He then requested "a definite answer from you what is the next step moving forward from my side, if there is. Or tell me if I need to wait and for how long?????". It would not appear that the Commission responded to these emails. (6) On 2 June 2023, Mr Gabriel emailed a representative of Titan requesting consent to arbitrate his dispute. In the final sentence he made it clear that if consent would not be forthcoming, then he would proceed to make an application to this Court. (7) On 8 June 2023, Titan advised Mr Gabriel by email that it would not consent to arbitration. (8) Mr Gabriel travelled to the Philippines between 3 and 14 June 2023. 4 Despite the absence of an affidavit, the respondents do not dispute those core facts. What is missing, however, is any explanation by Mr Gabriel of the reason for the various periods of delay which contributed to the late filing of his application in this Court. There is, on this narrative, unexplained periods of delay between the issue of the certificate by the Commission on 27 March 2023, and the lodging of his application on 19 June 2023. Whilst within that period, Mr Gabriel engaged in correspondence with the Commission, what remains unexplained is why he did not proceed with greater alacrity despite the "IMPORTANT NOTE" on the certificate that: The person dismissed or an industrial association that is entitled to represent the industrial interests of 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 Circuit and Family Court of Australia for a civil remedy order, unless the court extends the time for making such an application. For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both parties. This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application. (Original emphasis). 5 The principles applicable to an extension of time application pursuant to s 370(a)(ii) are well-understood: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, which decision appears as a statutory footnote to the section. Justice Marshall, at 299-300, when dealing with the analogous provision at s 170EA of the Industrial Relations Act 1988 (Cth), "briefly stated" the principles as: 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. 6 Mr Gabriel has failed to address these considerations satisfactorily. What is manifestly clear is that he was aware on and from receipt of the certificate on 27 March 2023 that a 14-day time limit applied either for the commencement of the proceeding in this Court or to begin an arbitration proceeding, with the consent of the employer, before the Commission. He knew from the important information statement on the certificate that it was not open to him to commence an arbitration proceeding without the consent of the employer. Despite that, he engaged in feckless correspondence with the registry of the Commission in which he requested advice as to the procedural steps for arbitration without satisfying the fundamental requirement of first obtaining the consent of the employer. Thereafter, there are substantial periods of unexplained delay. It was not until 2 June 2023, that Mr Gabriel first sought the consent of the employer to proceed to arbitration. That request was promptly answered, and consent was denied on 8 June 2023. The fact that Mr Gabriel was in the Philippines between 3 and 14 June 2023 does not explain why it took until 19 June 2023 to lodge his originating application in this Court. 7 This is not a case where Mr Gabriel was ignorant of the 14-day time period for the commencement of the proceeding in this Court commencing on the day of issue of the certificate by the Commission. Mr Gabriel has failed to satisfy me that the 14-day period should be extended. Although he took some steps to contest his termination between 27 March and 10 April 2023 in order to initiate an arbitration of his disputes, what is wholly and unsatisfactorily explained by Mr Gabriel is why those steps were unilaterally taken by correspondence with the Commission registry when he clearly was aware that the consent of the employer was required. Ultimately, he sought that consent on 2 June 2023, after a very significant period of time had expired. 8 Although the respondents do not identify specific prejudice caused by delay, that consideration is insufficient to justify an extension of time in the circumstances of this case, having regard to the other matters that I have identified and two further considerations. One, Mr Gabriel has not addressed the merit of his application and to the extent to which the merits are traversed in his statement of claim, it is a confusing document which fails to distinctly identify what workplace rights were enjoyed or were asserted and how the employer took adverse action in contravention of those rights. The other is that he fails to explain at all how it is that Calibre was his employer for the purpose of seeking relief against it. 9 For these reasons, I am not satisfied that Mr Gabriel has made out a proper basis for the grant of an extension of time. It follows that the proceeding is incompetent and must be dismissed. I order as follows: 1. The applicant's application to extend time pursuant to s 370(a)(ii) of the Fair Work Act 2009 (Cth) is refused. 2. The originating application lodged on 19 June 2023 is dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. Associate: Dated: 18 October 2023