Stephens v Australian Postal Corporation [2010] FMCA 1012

1. Mr Stephens commenced proceedings in this Court under the Fair Work Act 2009 (Cth) ("the Fair Work Act") on 29 June 2010. He contends that the termination of his employment with Australia Post in 7 January 2010 was unlawful, inter alia, by reason of breach of the general workplace protection provisions of Pt.3-1 of the Fair Work Act. He alleges that his summary dismissal was not motivated by the two stated reasons, but included an unlawful consideration of Mr Stephens' workers compensation rights under the Safety, Rehabilitation and Compensation Act 1988 (Cth), in relation to which Australia Post is its own determining authority.
2. Mr Stephens seeks reinstatement to his previous temporary employment, largely it seems, for the purposes of assisting his entitlements in relation to workers compensation, some or all of which have been argued by Australia Post in the Administrative Appeals Tribunal ("AAT") to have been lost by reason of the circumstances of his summary dismissal. He seeks relief also by way of penalty on Australia Post.
3. It is common ground that Mr Stephens' application is a "general protections court application" as defined in s.370(2) of the Act. As a consequence, s.371(1) required that he must first bring his complaints to Fair Work Australia ("FWA"), and Mr Stephens did so within the requisite period. Those proceedings have failed to effect a conciliated outcome.
4. Proceedings in this Court may then be brought, but subject to a time limit in s.371(2):
   • 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.

Section 544 otherwise provides a six year time limit on proceedings under the Act.

1. The FWA certificate which terminated its proceedings was issued on 7 June 2010, following an email sent to a senior deputy president's associate by Mr Stephens' legal representative, being Ms Keys of counsel. Her email was sent on 3 June 2010, with a copy to the representative of Australia Post. It said:
   • Some incomplete rehabilitation and vocational reports were eventually provided to the Applicant on 24 May 2010, and the Applicant has responded seeking resolution of the problems arising from the reports - as a consequence, the Applicant now regards the capacity of the rehabilitation / return to work process under the Safety, Rehabilitation & Compensation Act to resolve this Application in the immediate or medium-term future as highly unlikely.
   • The Applicant thanks her Honour for standing this matter over generally while the parties exhausted all avenues for resolution of this matter, but as the Applicant's efforts have been unsuccessful, the Applicant requests her Honour issue the relevant certificate.
2. The FWA proceedings had previously been adjourned to allow Mr Stephens to explore his rights in relation to a rehabilitation process under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
3. Fourteen days from 7 June 2010 expired on Monday 21 June 2010, and Mr Stephens did not commence proceedings in this Court within that period. On Thursday 24 June 2010 Ms Keys sent an email to Australia Post's representative which said:
   • Further to my email to Senior Deputy President Drake's Associate on 5 June 2010, and the subsequent certificate issued by Senior Deputy President Drake on 7 June 2010, the Applicant proposes to make a general protections court application pursuant to section 371 of the Fair Work Act 2009; however, the filing of the application in the Federal Magistrates Court has been delayed as a result of the need to contend with some issues that arose in the related AAT proceedings.
   • Also, Mr Stephens has been under increasing and unresolved levels of stress since the termination of his employment on 7 January 2010, as was apparent from his communication with Australia Post's CEO on 22 May 2010. Since that time, Mr Stephens has consulted his treating doctor and a psychologist about treatment for his depression, anxiety and stress - since 17 June 2010, he has received counselling, which is on-going, and is taking prescribed medication. As I believe Mr Stephens' communication with Australia Post's CEO was indicative of some misunderstandings about issues associated with the proceedings in Fair Work Australia, which appeared to be caused by his level of stress, I have been concerned that Mr Stephens receive treatment for his stress before providing legal advice about the general protections court application (on top of advice concerning the AAT proceedings).
   • I am currently arranging a mutually convenient time to meet with Mr Stephens in connection with his general protections court application (including an application for extension of time pursuant to sub-section 372(2)). I will keep you informed about this matter, but at this stage, it is expected that Mr Stephens will be filing his application in the Federal Magistrates Court before the end of next week.
4. Mr Stephens' application was then commenced by him within the foreshadowed time, on the following Tuesday 29 June 2010.
5. At the first court date in the matter, at Australia Post's request it was listed for hearing today of Mr Stephens' application for extension of time under s.371(2). The parties have meanwhile filed points of claim and defence, and some of their evidence in the principle proceedings. It may be that further supplementary evidence may also be needed. If I grant the extension of time today, I shall make further directions appointing a hearing in the matter on its merits.
6. It is common ground that at this stage the Court is not in a position to form any judgment as to the likely outcome of the proceedings. It is apparent from the documents filed by the parties that this will turn on an assessment of disputed evidence as to oral statements made on the critical day leading to Mr Stephens' termination, and also on an exploration of the true reasons for his termination, noting that Australia Post has an onus of proof to satisfy the Court that the termination did not occur for an unlawful reason or for reasons including an unlawful reason (see ss.360 and 361 of the Fair Work Act).
7. When considering the extension of time application, it is enough that I note that it has not been submitted, and I would not find, that Mr Stephens' application lacks merit to any extent suggesting that the interests of the administration of justice would be served by refusing an extension of time at this point. Indeed, it is my impression from the material on the file that there are real factual issues presented to the Court which, apart from other considerations, would be deserving of determination on a final basis.
8. Counsel for both parties today accepted the relevance of authorities which have applied to industrial legislation principles of administrative law in relation to the extension of similarly short time periods for commencing court proceedings. In particular, Wilcox J's well known discussion in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348 and following, was endorsed and summarised by Marshall J in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299:
   • 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.
9. The Full Bench of the Industrial Relations Court of Australia referred to his Honour's summary as an "unexceptionable statement of the relevant principles", in Coyne v Ansett Transport Industries [1996] IRCA 468.
10. I have taken into account all of those considerations and other considerations which other authorities have referred to, in relation to an unfettered judicial power to extend a short time limit to allow the bringing of a proceeding at first instance.
11. Australia Post, as I have noted, has not pointed to anything in relation to the merits of the substantive application pointing against an extension of time. Nor has any prejudice to Australia Post been pointed to, including prejudice caused by the short delay.
12. On my above recitation of events, I would find that Australia Post suffered no prejudice from the short delay, and that it would not suffer an injustice if time were extended, in circumstances where, in my opinion, it was or should have been on notice that Mr Stephens was unlikely to accept the outcome in the Fair Work Australia proceedings as determinative of his dispute with Australia Post, and where the dispute was still on foot in the AAT in relation to issues which appeared to turn upon the lawfulness of his termination.
13. The submissions on behalf of Australia Post in opposition to an extension focused entirely upon the explanation presented to the Court for the short delay. It was submitted that Mr Stephens had not deposed whether or not he was aware of the short time period, and the fact that it had elapsed, before he gave instructions to Ms Keys to prepare his application and advise him about bringing it.
14. Mr Stephens' affidavit puts forward Ms Keys' second email as "explaining the delay with filing my application and claim form with the Federal Magistrates Court". I accept that he has not expressly deposed as to his state of knowledge, but Australia Post did not seek to cross-examine him in relation to the background to this email, nor as to his knowledge of the FWA certificate and the resultant time limit, nor as to his mental state in the relevant period. Some implications as to these matters can be drawn from the email.
15. Looking at the email, it appears to me that the explanation for the short delay was that Ms Keys made a professional judgment that Mr Stephens' mental health would be assisted by a short delay before she advised him about bringing a second set of proceedings in this Court during the pendency of the AAT proceedings. The fact that Mr Stephens may have been suffering at that time from anxiety, medically diagnosed and relating to his workplace injury, is supported by a medical certificate which has been tendered. I would infer that Ms Keys made a professional judgment to take the risk that a short extension of time might be opposed by Australia Post, before putting Mr Stephens under the stress of deciding whether to incur another set of legal expenses by pursuing his dispute with Australia Post in a second forum.
16. I am not in a position to say that Ms Keys' professional judgment to defer giving advice to Mr Stephens for a short period was unreasonably formed. Indeed, on the skimpy evidence before me, it may have been a proper judgment of counsel to have made in the same circumstances. If so, it provides a sufficient and good explanation for the short delay in the present case.
17. Even if Ms Keys was at fault not to advise Mr Stephens about his right to commence proceedings and the desirability of commencing proceedings before the expiry of the time limit, authorities in this area have suggested that the failings of legal advisers should not necessarily be attributed to their clients who, as a result, find themselves needing an indulgence from the court or an exercise of a discretionary power to extend a time limit (see Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 at 443). In Hunter Valley Developments Pty Ltd v Cohen (supra) at 351, Wilcox J observed that "it would be erroneous to treat the fault of the solicitors as if it were the direct default of the client".
18. Considering all the circumstances, I am not persuaded that the explanation put forward by Mr Stephens should not be accepted. In my opinion, it provides Mr Stephens with a sufficient reason to persuade me positively that the prescribed period should be extended for the short period required.
19. I consider that such an extension would be generally consistent with the policy objectives of the Fair Work Act, including its policy that a decision to commence a general protections court application should normally be made within a very short period of time after the issuing of a FWA certificate.
20. I therefore propose to extend time and give directions for listing of the matter for hearing.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM