(1) The Application filed on 18 April 2011 is dismissed.
(2) The Form 2 Claim filed on 18 April 2011 is dismissed.
[2]
Mrs Chalouhi wishes to bring a claim for relief against Tunstall Australasia Pty Ltd for allegedly dismissing her from its employment in contravention of a general protection provided for by the Fair Work Act 2009. The time limit in which she might bring that claim, however, has passed and by this application she seeks an extension of time in which she might commence her application.
Section 371 of the Fair Work Act 2009 contains both a 14 day limitation period in which such proceedings can be commenced and a provision that provides that the period might be extended. Section 371 is in the following terms:
371 General protections court applications
FWA conference to be held before application
(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) FWA has issued a certificate under section 369 in relation to the dispute; or
(b) the general protections court application includes an application for an interim injunction.
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
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.
Mrs Chalouhi received a certificate issued by Fair Work Australia pursuant to s.369 of the Act on 11 February 2011. This application and the Form 2 that accompanied it were both filed on 18 April 2011 - 66 days after the issue of the certificate and more than 7 weeks after the time allowed for the making of the application as of right.
There can be no doubt that the discretion afforded by s.371(2) of the Act must be exercised judicially. The relevant factors need to be identified and weighed. There is nothing new in such an approach. In Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 176; (1984) 3 FCR 344 at 348 Wilcox J authoritatively set out the approach to be taken to the exercise of a discretion as broad and unfettered as that which I am now called upon to consider.
By the note to s.371 of the Act, attention is drawn to the decision of Marshall J in Brodie-Hanns v MTV Publishing Limited(1995) 67 IR 298. In that decision Marshall J applied Hunter Valley Developments Pty Ltd and summarised, at 299, the relevant approach as follows:
Briefly stated the principles are:
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.
As Lucev FM points out in Transport Workers Union v School Bus Contractors Pty Ltd[2011] FMCA 28:
Although the Section 371 Note does not form part of the FW Act, and although the Brodie-Hanns principles are not binding upon the Court, the Brodie-Hanns principles have been regularly applied by this Court, and do constitute a relevant guide to the criteria to be applied.
Just as Lucev FM did in that case, I will use the Brodie-Hanns principles as non-binding but guiding criteria in this matter. It was not suggested that there were any other relevant factors raised by the evidence relied upon by Mrs Chalouhi.
I accept Tunstall's submission that the discretion to extend the relevant period is a discretion to grant, not a discretion to refuse, and therefore Mrs Chalouhi has the onus to satisfy the Court that grounds exist for exercising the discretion in her favour. She has a positive burden to demonstrate that the justice of the case requires the extension.
Mrs Chalouhi argues that she offers an acceptable explanation of the delay in commencing her proceedings which makes it equitable to extend the time within which she might commence them. She relies upon two affidavits to set out the facts that explain her delay. Essentially she says that she was medically unfit at the relevant time. Annexed to her affidavit filed on 19 May, 2011 is a medical certificate under the letter head of "Strathpine GP Superclinic" and under the hand of Dr Johan (Willie) Durr. The certificate says:
Mrs Hiba Chlouhi has had a medical condition.
Due to medical reasons, she was unable to file her court papers until 18 April, 2011.
If you require any further medical information please contact me.
Yours sincerely
In submission Mrs Chalouhi suggested that the medical condition that restricted her ability to commence her proceedings was the fact that she was pregnant at the relevant time. However, the medical certificate does not suggest that. Indeed, the medical certificate gives no indication of the nature or the extent of the "medical condition" said to have been afflicting Mrs Chalouhi at the relevant time.
In a second affidavit filed on the morning of the hearing by leave, Mrs Chalouhi deposes:
2. In the respondents' (sic) statement, they have stated the following: "the lack of a satisfactory explanation for the delay" in regards to extension of time. I have already provided a medical certificate which states I was not able to file the papers until the 18th April 2011. I was heavily pregnant and gave birth before I was able to file my claim. I was not in any way going to risk high stress levels throughout my third trimester of pregnancy due to the court case. In addition, I became lethargic due to my haemoglobin levels dropping from 134 to just over 100 and often caused me to tremble.
[3]
Much is left to inference and speculation. The birth date of Mrs Chalouhi's child is not in evidence and so I cannot test her evidence that she gave birth to her child within the relevant limitation period. The medical certificate does not refer to the matters raised by Mrs Chalouhi in her subsequent affidavit, and so I cannot test those assertions one against the other.
If there was no other factor to consider in this case, I would be inclined to consider that the material establishes an explanation for the delay in commencing the proceedings. But there are other factors that require consideration.
The length of the extension sought is significant. Even assuming that the reasons for delay are considered satisfactory, there is nothing that goes to explain the length of the delay. The s.369 certificate issued by Fair Work Australia on 11 February 2011 contains, on its face, advice as to the limitation period.
Tunstall argues that the substantive application lacks merit. Mrs Chalouhi's Form 2 - Claim alleges a contravention in the following terms:
Grounds for the claim are based on unfair dismissal. Employer dismissed me on the grounds of absenteeism, however day I took off were sick days due to my pregnancy. Also, was offered fulltime position which was then withdrawn by operations manager.
[4]
Insofar as the Claim identifies a proceeding for unfair dismissal, I accept the submission that this Court has no jurisdiction in respect of such a claim. That matter must be dealt with by Fair Work Australia.
The general protection that Mrs Chalouhi relies upon in this case is set out in s.352 of the Act. It is in the following terms:
352 Temporary absence--illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4-1).
It is immediately obvious that the protection applies as between an employer and an employee. Section 335 of the Act provides that in Part 3-1 the terms "employee" and "employer" have their ordinary meanings.
Mrs Chalouhi had a written employment agreement with an entity that traded as TactiCall Recruitment Services. That written document was signed by Mrs Chalouhi on 25 August, 2010 and it makes clear that Mrs Chalouhi was employed by TactiCall on a casual basis subject to the terms and conditions set out in the written document. The terms of the agreement make it clear that Mrs Chalouhi would be performing work for other organisations - referred to in the agreement as "the Client". The agreement also makes clear that:
[5]
There was no commitment by TactiCall that Mrs Chalouhi would be employed long-term or provided with ongoing employment;
2. Mrs Chalouhi would be paid a casual rate of pay;
[6]
TactiCall would make weekly wage payments (less deductions for taxation) to Mrs Chalouhi in accordance with the hours worked by her;
[7]
Tacticall would make all superannuation payments to Mrs Chalouhi it was required by law to make;
2. TactiCall was responsible for following up any "performance issues" with Mrs Chalouhi; and
3. Either TactiCall or Mrs Chalouhi could terminate the employment on a minimum of one hours' written notice.
Mrs Chalouhi received a separation certificate after her employment ceased. The certificate was issued by TactiCall Recruitment Services.
I accept that the evidence clearly demonstrates that Mrs Chalouhi was employed by TactiCall and not by the respondent Tunstall. Her employment was terminated by TactiCall, her employer. If Mrs Chalouhi has any rights arising from the termination of her employment, those rights lie against her employer TactiCall.
Further, to the extent that Mrs Chalouhi argues that s.342 of the Act gives her a right of action against Tunstall, I accept Tunstall's submission that s.342 is not a section that provides any substantive right to relief. Rather, it defines the meaning of "adverse action" for the purposes of those sections of the Fair Work Act 2009 that do provided substantive rights to relief.
[8]
In my view there is no reasonable prospect of the claim as identified in the Form 2 Claim being successfully prosecuted by Mrs Chalouhi. Even if the circumstances of her pregnancy and the birth of her child meant that she was unable to attend to filing her proceedings within the requisite time, and ignoring the length of the delay that remains unexplained, the merits of her application militate against the grant of an extension of time.
I am not satisfied that in the circumstances it would be equitable to extend the time period in which Mrs Chalouhi could commence her proceedings.
The application for an extension of time will be dismissed. The Form 2 filed on 18 April, 2011 will also be dismissed.
[9]
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Jarrett FM