Kaur v Trustee for the Willow Wood Cranbourne Aged Services Trust [2025] FedCFamC2G 1344

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant, Ms Kaur, was employed by the respondent as a registered nurse from 19 August 2024 until her dismissal on 28 January 2025. The applicant alleges that she was dismissed in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) because she made inquiries about her classification under an industrial instrument and/or rate of pay, she complained about her colleagues' behaviour, and she was experiencing conflict in the workplace affecting her health and safety, and further alleges that the respondent, in contravention of s 351 of the FW Act, dismissed her because of, or for reasons that included, her race, the applicant being of Indian ethnicity and cultural background. And so, she claims, the decision to terminate her employment was at least in part affected by her race. On 24 April 2025, the applicant applied to this Court seeking orders for compensation and reinstatement to her employment with the respondent. More than a month before the filing of this application, the parties attended a conciliation conference in the Fair Work Commission (Commission) under cover of an application, for the Commission to deal with a dispute in relation to a dismissal-related general protections matter. At the conference, attempts were made to resolve the dispute by conciliation, but those attempts were unsuccessful.
2. Deputy President Anderson issued a certificate pursuant to s 368 of the FW Act in respect of the conciliation, which is the trigger required to enable a party to bring a general protections court application. Section 370(a)(ii) of the FW Act requires that an application to this Court, by which an applicant alleges contravention of a general protections provision, must be made within 14 days from the date on which the Commission issues the certificate under s 368, or within such further period as the Court allows. In this matter, the Commission issued a certificate as indicated on 18 March 2025, and the applicant made her application on 24 April 2025.
3. The last day on which an application could be validly made was 1 April 2025, and so the application was made 23 days after the time for making a regular application had lapsed. The applicant seeks an order pursuant to section 370(a)(ii) of the FW Act to extend the time within which she may file the application. The principles that are relevant to the exercise of the Court's discretion to extend time are not controversial. They are alluded to in the note following s 370(a)(ii), with its reference to the decision of the (former) Industrial Relations Court of Australia in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298. Those principles have been adopted and applied in numerous cases.
4. Put simply, matters that are relevant include the following. Whether there is an acceptable explanation for the delay - the delay refers to the period after the regular time expired, being the period after 1 April 2025 until the application was lodged on 24 April 2025. Any action taken by the applicant to contest the termination other than applying under the Act is a relevant consideration. The reason that matter is relevant is it shows that the applicant actively contested the dismissal. It also is likely to put the respondent on notice that the applicant was contesting the dismissal, and steps taken in that regard will usually weigh in favour of the grant of an extension of time. A further factor is any prejudice to the respondent, including prejudice caused by the delay, but the absence of prejudice in and of itself, without more, will not justify the grant of an extension.
5. The merits of the substantive application which is sought to be agitated are taken into account in determining whether an extension should be granted, as well as considerations of fairness as between the applicant and other persons in a like position. Because an important issue will be my assessment as to the merits of the application, I will spend a few minutes dealing with that by way of background.
6. Firstly, as to the applicant's case alleging discrimination, as I indicated, the applicant was employed as a registered nurse by the respondent as a permanent part-time employee. The applicant alleges that she was dismissed by the respondent, and says that that occurred in the context of a small conflict with a co-worker, that that issue was not properly investigated by the respondent, and that she was not afforded the same opportunity as other staff members to address her concerns in relation to the incident.
7. The applicant also alleges that she was dismissed on 28 January 2025, shortly after the conflict, and that the persons dismissing her were of apparent Anglo-Saxon background. She alleges that the dismissal was affected, to a degree, by racial prejudice or discrimination. The applicant says that she was not given the requisite notice, and that the respondent did not provide any valid reason for the termination of her employment. Beyond that, no further detail is provided in relation to the discrimination complaint, that is, the alleged contravention of s 351(1) of the FW Act.
8. The applicant also bolsters her allegation by which she alleges discrimination because she says that she performed her duties and responsibilities well, under stressful conditions, in circumstances where her team was inadequately staffed, and she makes an allegation that the respondent had agreed to provide her with additional shifts and full-time employment as evidence of her being regarded as a capable worker. She also says that she has not been guilty of any breach of the Nursing Code of Conduct. And so in short, at least so far as her written application is concerned, the applicant seems to suggest that the only possible explanation for the dismissal was that it was motivated by her race, in contravention of s 351(1) of the FW Act.
9. In her affidavit material, and at the hearing before me, the applicant also attaches email correspondence, which are said to amount to complaints or inquiries in relation to her employment, and which would constitute the exercise of workplace rights. It is necessary for present purposes only to deal with one of the emails, wherein the applicant writes to her employer requesting a review of her pay grade, setting out that she was then employed as a 'grade 3A registered nurse' - which, I assume, is a classification either under the Nurses Award or the applicable Enterprise Agreement, details of which have not been provided - and that she thought she might be eligible for payment as a grade 4 registered nurse.
10. Ms Walker, for the respondent, in my view properly conceded that for present purposes, that email correspondence is capable of amounting to an inquiry by an employee in relation to her employment, for the purposes of constituting a workplace right as defined in the FW Act. And so, the applicant appears, at least in respect of that matter, and quite possibly in relation to the other emails or some of them, to have made inquiries in relation to her employment and thus exercised her workplace right/s. Although not articulated in her application, it is clear from her affidavit and the oral submissions the applicant made at the hearing before me that she alleges she exercised workplace rights, as evidenced by the email correspondence, and that the respondent took adverse action in the form of dismissal because the applicant exercised one or more of those workplace rights, in contravention of s 340(1) of the FW Act.
11. The respondent contends that the applicant's employment was terminated because of unsatisfactory work performance or conduct, following several complaints about the applicant's professional conduct, beginning sometime in September 2024, and that the unsatisfactory behaviour is said to have continued despite these issues being raised with the applicant. Several of the complaints are annexed to the affidavit of Ms Swati Chakravarty, the respondent's Executive Manager. Ms Chakravarty deposes to the fact that the decision to terminate the applicant's employment was based solely on the applicant's sub-standard performance, and was not in any way related to race. She does not there depose the matters raised by the applicant in her email were not related to the dismissal. To the extent that there is no denial of the emails that were tendered today, that is unsurprising. Nevertheless, there is an allegation in the applicant's affidavit material, at least in respect of the rate of pay issue. It appears from the affidavit of Ms Chakravarty that the respondent confirmed the applicant's dismissal during a meeting with the respondent's Residential Manager Ms Bould, and the respondent's People and Culture coordinator Ms Johnston, on 28 January 2025, and that the applicant was said to have been paid two weeks' pay in lieu of notice, and her employment terminated with effect on that day.
12. Turning then to consider the various matters that are relevant to the exercise of my discretion, beginning with the explanation for the delay. The applicant explains in her affidavit that she expected the conciliation conference facilitated by the Commission would result in a positive outcome, and she was disappointed when conciliation did not result in a satisfactory outcome. She said in her affidavit and again at the hearing before me that she took her time to consider whether to commence a proceeding, and she was mindful of the fact that court proceedings are time-consuming and lengthy and, coupled with her disappointment, these are matters that weighed on her.
13. She also said that she was preparing for university examinations and was occupied with study in the context of pursuing her Doctor of Medicine from the period of 21 March to 15 April 2025, and that she sought legal advice from 9 to 22 April 2025. During the hearing before me, the applicant said that she had also sought advice from her union on or about 1 April 2025 in relation to the application. Apart from the assertions the applicant makes in relation to her studies, there is no other evidence, for example by way of a study plan or timetable, which would indicate that the applicant was undertaking study.
14. There is not even as much as a confirmation of enrolment, but in any event, it is not unusual that the exigencies of life occupy our time. The question is whether the fact that there was a need to study provides a satisfactory explanation for the delay, and I do not consider that it does. Ultimately, if this application were important, the applicant should have devoted time to ensure that the application was made within the prescribed time, or at least within a time more prompt than the 23-day delay that has resulted. It seems to me that the applicant's real reason for the delay, based on her presentation today, is that she was weighing up whether or not to bring the application, including by seeking advice after time to make the application had passed.
15. And that is a choice, a strategic choice that a person makes, but it was one made in the full knowledge that there was a 14-day time limitation. The applicant properly acknowledged that she was aware of the time limitation, and indeed, it is set out in bold at the bottom of the certificate issued by the Deputy President at the conclusion of the conciliation conference at the Commission. Consequently, I do not consider any of the reasons that the applicant has advanced as an explanation for delay as being acceptable.
16. To the extent that the applicant relied on the need to obtain advice, I also note that there is not any indication by way of corroborative evidence of any appointments with solicitors, any correspondence with solicitors, any text messages, or any confirmation of consultation with the applicant's union. But in any event, the fact that the applicant sought advice in and of itself does not provide a satisfactory explanation for the delay. And so, the absence of an acceptable explanation for delay is a matter that weighs against a conclusion that time should be extended.
17. The only action the applicant took was to seek to negotiate a settlement after these proceedings were commenced. The respondent correctly points out, and the applicant concedes, that the applicant took no steps between the Commission's issuing of a certificate and the filing of the late application, to contest her dismissal, and in those circumstances the absence of any such steps is a matter that weighs against a conclusion that time should be extended.
18. Whilst the respondent's submissions argue neutrally in relation to the question of prejudice, the affidavit material filed seems to suggest that the incurring of costs associated with engaging legal representation are matters of prejudice. Presumably, had the application been made within time, the respondent would have also engaged legal representation. It is sometimes the unfortunate price that is paid for commencing and/or defending proceedings. The complaint seems to be no more than the fact that the respondent will be prejudiced because it has had to incur legal expenditure to defend, and will incur further legal expenditure to defend, proceedings. That is not the kind of prejudice to which the consideration is directed. And so, I consider, and the respondent's oral submissions were to this effect, that the consideration as to prejudice is neutral at best. There is no real prejudice, but the absence of prejudice itself will not provide a basis for extending time.
19. Turning, then, to the merits of the application, I have already set out some matters that are relevant, but the applicant claims to have been dismissed because of her race and because she has exercised one or more workplace rights, as is evident from some of the email correspondence before the Court.
20. There is no dispute that the dismissal of the applicant was adverse action taken by the respondent. There is not likely to be any dispute that the applicant is of a particular race for the purposes of engaging an attribute described in s 351 of the FW Act. There is also not likely to be dispute in relation to at least the applicant's inquiry about her rate of pay, and possibly also her complaint or inquiry in relation to the behaviour of colleagues, being properly characterised as complaints or inquiries in relation to the applicant's employment with the respondent in the applicant's capacity as an employee. Accordingly there is a workplace right the applicant has exercised as defined in s 341(1)(c)(ii) of the FW Act.
21. The respondent does not dispute that at least some of those inquiries were made. As I noted during the course of the respondent's submissions, the deponent of the respondent's affidavit does not set out that she was the decision-maker, although counsel for the respondent informed me on instructions that the deponent was the decision-maker. Nonetheless, the affidavit material is a bit thin on the reasons, and it does not address the allegation/s that the applicant makes in her affidavit that she also claims to have been dismissed because of the exercise of workplace rights.
22. Section 340(1) of the FW Act prohibits the taking of adverse action against another person because, relevantly, the person has or proposes to exercise workplace rights. Section 340(1) provides as follows:

340 Protection

(1) A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

1. Section 341 sets out when a person has a workplace right and relevantly provides that a person has a workplace right if the person is able to make a complaint or inquiry, relevantly, if the person is an employee, in relation to his or her employment.
2. Section 351 of the FW Act prohibits an employer from taking adverse action against an employee, relevantly, because of the person's race, and item 1(d) of s 342(1) of the FW Act specifies that an employer takes adverse action against an employee if the employer discriminates between an employee and other employees. I have also earlier noted that adverse action includes dismissal of an employee.
3. Section 360 provides that for the purposes of Pt 3-1 of the FW Act, which are the general protections provisions, a person takes action for a particular reason if the reasons for the action include that reason. Consequently, the reason alleged need not be the sole reason. It may be one of several reasons, so long as it is an operative reason.
4. Section 361(1) of the FW Act sets out a rebuttable presumption, the effect of which is that if, in an application alleging a contravention, it is alleged that the person took, or is taking action for a particular reason or with a particular intent, and the taking of that action for that reason or with that intent would constitute a contravention of Pt 3-1, then it will be presumed that the action was or is being taken for the reason or with the intent alleged, unless the person proves otherwise.
5. On the material available to me, it is plainly more than arguable that the applicant exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act by her email correspondence of 14 January 2025. It is apparent that the applicant made an inquiry by that email. The inquiry related to the subject matter of the applicant's employment. It appears to have an obvious source, that is, an entitlement under a relevant industrial instrument to a particular classification or rate of pay. It is about the applicant's remuneration and/or her classification under that applicable industrial instrument.
6. If it is accepted that the applicant exercised a workplace right, and noting that she alleges that the respondent's reasons for terminating her employment included that she exercised that workplace right, then the reverse onus in s 361 will be engaged. The respondent will, therefore, be presumed to have taken the action for the reason alleged, unless it can prove otherwise. Discharging the onus will often, although not invariably, require the respondent to adduce evidence from the person or persons who made the decision about the reasons for the dismissal.
7. The respondent's affidavit material suggests that the reason the respondent took the decision to dismiss the applicant was performance or conduct-related. The deponent denies race as a reason for the dismissal, but does not otherwise engage with the applicant's exercise of a workplace right. So as things presently stand, the affidavit material filed by the respondent is insufficient to persuade me that it will be able to discharge or to rebut the statutory presumption. That is not to say that it will not at trial, but as things presently stand, I am not satisfied, on the material, that it has shown it will.
8. In the result, the applicant has a clearly arguable case, at least to put the respondent to proof in relation to the issue concerning the exercise of a workplace right. The applicant's allegations as to dismissal on account of race are a bit thinner and weaker, in my view. That view obviously is expressed on an interlocutory or interim basis. In the circumstances, that the applicant has an arguable case as to contravention, is a matter that weighs not insignificantly in favour of the grant of an extension.
9. The position which remains is that - although the applicant has not provided a satisfactory explanation for the delay, has taken no steps to dispute her dismissal since the conciliation conference in the Commission, and there is no prejudice to the respondent - the applicant has, at the very least, an arguable case for a contravention in connection with her dismissal, that is, the exercise of a workplace right. And I should indicate that I am not persuaded that the fairness as between the applicant and others in a like position has any material bearing on the exercise of my discretion in this case. I consider the merits of the case as explained above, outweigh the absence of an acceptable explanation for delay and the absence of any steps to contest the dismissal. The allegations should be tested at trial and it is appropriate that I should exercise my discretion to extend time, and I do so.
10. I will also make some procedural orders.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Gostencnik.