FEDERAL COURT OF AUSTRALIA

Reeve v Ramsay Health Care Australia Pty Ltd [2013] FCA 499

THE COURT ORDERS THAT:

1.    Leave to appeal be refused.

2.    The notice of appeal be struck out.

3.    The parties have liberty to apply on the question of costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant sought to appeal as of right from the orders of a judge of this Court by which summary judgment was entered for the first respondent (Ramsay), and consequentially, her originating application filed 10 August 2012 was dismissed: Reeve v Ramsay Health Care Australia Pty Ltd [2012] FCA 1294 (Reasons).

2    However, these were interlocutory orders, and accordingly, leave to appeal is required: Federal Court of Australia Act 1976 (Cth) s 24(1A) and (1B). Siopis J referred this matter from an Appellate Callover hearing to my docket in order that the necessary leave application could be heard. I have treated the notice of appeal as a draft notice of appeal.

3    During the course of these reasons I will continue to refer to Fair Work Australia (FWA) by this name despite the fact that it has been amended to the Fair Work Commission (FWC).

Background

4    The following background is derived from the judgment of the primary judge.

5    On March 2011, the applicant’s employment with Ramsay ceased.

6    On 8 July 2011, the applicant made an application to the second respondent, FWA, to deal with a dispute under s 365 of the Fair Work Act 2009 (Cth) (the FW Act) on the basis that she had been dismissed in contravention of Pt 3-1 of that Act.

7    Her application was well out of time. By s 366(1)(a), the application under s 365 had to be made within 60 days after the dismissal took effect or by subs (1)(b) within such further period as FWA allows under subs (2).

8    By s 366(2), FWA may allow a further period if satisfied that there are “exceptional circumstances”, taking into account:

(a)     the reason for the delay; and

(b)     any action taken by the person to dispute the dismissal; and

(c)     prejudice to the employer (including prejudice caused by the delay); and

(d)     the merits of the application; and

(e)     fairness as between the person and other persons in a like position.

9    On 18 August 2011, Commissioner Williams refused the applicant’s extension application as he was not satisfied that there were exceptional circumstances to allow it: Reeve v Ramsay Health Care Limited [2011] FWA 5349. The applicant’s subsequent appeal against this decision was dismissed by the Full Bench of FWA.

10    The applicant then applied to what was then called the Federal Magistrates Court concerning unlawful termination. Such an application is made under s 779 of the FW Act. This application was also dismissed as no certificate had been issued under s 777 of the FW Act: Reeve v Ramsay Health Care Limited [2012] FMCA 120.

11    The applicant then made a second unlawful termination application under s 773 of the FW Act, this time to FWA. This application has led to the present proceeding in this Court.

12    Section 773 falls within Div 2 of Pt 6-4 of the Act and enables an employee to apply to FWA to deal with a dispute if an employer has terminated an employee’s employment in contravention of subsection 772(1).

13    Section 772(1) provides:

(1)     An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a)     temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b)     trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

(c)     non-membership of a trade union;

(d)     seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e)     the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f)     race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g)     absence from work during maternity leave or other parental leave;

(h)     temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

14    In her application, the applicant relied on s 772(1)(e), namely, that a complaint against Ramsay alleging violation of laws (ie her whistle blowing) had led to her employment being terminated.

15    But s 774, like s 366, requires the application to be made within 60 days or in such further period as FWA allows under subs (2), which is in almost identical terms to s 366(2).

16    When the applicant’s extension application came before Commissioner Cloghan, like Commissioner Williams, he was not satisfied that there were exceptional circumstances and refused it: Reeve v Ramsay Health Care Australia Limited [2012] FWA 3141.

17    The applicant’s further appeal application to the Full Bench of FWA was dismissed: Reeve v Ramsay Health Care Australia Pty Limited [2012] FWAFB 5601. It is that decision that the applicant applied to quash, although she focused on the decision of Commissioner Cloghan in doing so, alleging the Full Bench erred in not finding the Commissioner erred. Her main complaint was that Commissioner Cloghan denied her natural justice by deciding the extension of time issue on the papers and without giving her a hearing.

FWA decisions on extension of time

18    When the application to extend time came before Commissioner Cloghan, he issued a document called Statement and Directions under the FW Act, which recited the nature of the application, the reliance on s 772(1)(e) and the need to establish exceptional circumstances taking into account the matters referred to in s 774(2) in order to extend time. To assist in the “efficient and effective determination” of whether the applicant should be allowed to proceed with her application out of time, the Commissioner made procedural directions that required:

    The applicant to email the representative of Ramsay a statement of facts upon which the applicant relied, any documentary material and other relevant submissions to allow an extension of time.

    Ramsay to provide the applicant by email with a copy of a response to the statement of facts asserted or submitted, a statement of facts asserted upon which the employer relies and any documentary material or submissions in response to the applicant’s materials.

    The applicant to respond if she wished by email.

    Having received the “written submissions” the Tribunal would then make a determination as to whether it was satisfied there were exceptional circumstances.

    Should the Tribunal not be satisfied that there were exceptional circumstances, the application would be dismissed.

    If the Tribunal found there were exceptional circumstances, the matter would proceed to a conference under s 776 of the FW Act.

19    In his written decision dated 23 April 2012, Commissioner Cloghan dismissed the application. His written reasons cited the relevant statutory framework, summarised the applicant’s case, summarised the employer’s case and then considered the matter. In the process, the Commissioner considered the background including statements made in the materials supplied by Ramsay that included a statement that Mr James MacWatt had engaged in five discussions with the applicant before he met with Ms Young, the manager of Human Resources, where it was decided that the applicant’s employment was likely to be terminated, and that there was then a further meeting on 16 March 2011 when it was determined, following a meeting with Ms Kane, the coordinator of employee relations, that the applicant’s employment would be terminated for performance reasons. Then, on 24 March 2011, Mr MacWatt and Ms Kane met with the applicant and her employment was terminated. A letter of termination was provided. In this part of the background, the Commissioner simply sets out facts and did not make any findings as to whether the termination was justified or not, or lawful or not.

20    The Commissioner then proceeded to set out the details of an email of 22 March 2011 from the applicant to Mr MacWatt and others, having to do with the data entry aspects of her employment. The Commissioner noted a particular email to Mr Cowan on 28 March 2011 in which the applicant concluded that:

One of the major reasons for this unfair dismissal might be to prevent me from reporting this to you and the ramifications it posed on staff in the Emergency Department at JHC.

(Original emphasis.)

The subject matter of the reporting to which this statement was to be found in the earlier reference in that email, where the applicant stated that she did not “have much time to investigate these negatives [in the data]” as her employment had ceased, notwithstanding this she was able to advise that at least for January there appeared to be a possible computing error.

21    The Commissioner then considered what was required for circumstances to be exceptional and then considered each of the criteria in s 774(2) of the FW Act. He noted that while the applicant had previously made a general protections application and had also sought to extend the time for the making of that application, she had failed to set out the reasons for the delay in doing so. He noted that she had mentioned that her grandmother had passed away within the first 60 days, but also noted that, still within the 60 day period, she had been dealing with the Office of the Minister for Health in Western Australia and a number of other persons. He was not satisfied that there were exceptional circumstances shown to explain the delay. He also noted that she engaged a lawyer and that eventually the general protections application was lodged. He also noted the subsequent proceedings in the Federal Magistrates Court that were unsuccessful.

22    He accepted, in all the circumstances, that the primary timeframe to be considered for the purposes of exceptional circumstances was the first 60 days after the employee was dismissed. He was not satisfied that an explanation, apart from the death of the applicant’s grandmother, had been provided for the delay.

23    The Commissioner expressly noted that there was no doubt the applicant disputed her dismissal four days after the termination. He was not satisfied, however, that the applicant took any meaningful action to dispute her dismissal. As to her allegations about data manipulation made to various persons and agencies, the Commissioner considered they were “different to disputing her dismissal”.

24    The Commissioner further considered whether there was any prejudice to the employer caused by the delay and found there was “general prejudice” only.

25    He also considered the merits of the application. In this regard, he noted that the allegation was that Ramsay had unlawfully terminated her employment, having regard to s 772(1)(e), namely, the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws, or regulations, or recourse to competent administrative authorities. He said it was necessary for the applicant to have filed a complaint against the employer or participated in proceedings involving alleged violation of laws or regulations or taking herself to a competent administrative authority. In that regard, the Commissioner noted decided cases about what is required. The Commissioner found that: at the time of her dismissal the applicant had not filed a complaint against the employer; the only complaint was to the Chief Executive Officer of the hospital and that was after her termination of employment. He found she had not claimed that her complaint was in violation of any laws or regulations. He had not been advised that she was engaged with any competent administrative authority at the time of her dismissal. In short, the Commissioner found none of the conditions in s 772(1)(e) were present for her to rely upon as reasons for her unlawful termination of employment. He also noted that employment appeared to be terminated for reasons associated with her performance.

26    The Commissioner also considered fairness between other persons in the like position and with the exception of the passing of the applicant’s grandmother, did not accept that the activities the applicant undertook during the remainder of her first 60 days prevented her from filing the application within the standard time period.

27    The Commissioner then considered the application of s 723 of the FW Act to the applicant’s proposed claim before him. That provision provides:

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

28    The Commissioner found that the applicant was entitled to and did make a general protection application, being the one which failed before Commissioner Williams where the subsequent appeal was dismissed. The Commissioner found that the materials and submissions provided by the applicant contained the “implicit conclusions” that the applicant:

    was not terminated by Ramsay in breach of s 772(1)(e) of the FW Act; and

    is prohibited from making the application as it is a “double dipping” application contrary to s 723.

29    This consideration obviously added to the Commissioner’s view that the merits of the case were lacking.

30    The Full Bench of FWA then dismissed an appeal against Commissioner Cloghan’s decision. The Full Bench considered the most significant event was that the applicant had previously lodged a general protections application before FWA arising from the same circumstances relied on in the application before Commissioner Cloghan. As a consequence, there was no certificate issued by FWA enabling the applicant to proceed with her application in the Federal Magistrates Court. The Full Bench noted that when the second application pursuant to s 773 came before Commissioner Cloghan, he dealt with the issues arising on the extension of time application at length. He also dealt with the jurisdictional bar to the proceedings arising under s 723 of the FW Act. The Full Bench set out in detail what Commissioner Cloghan found in relation to s 723 and stated that given his conclusion there was no need for him to consider the extension of time question or for the Full Bench to consider his reasons for refusing to extend the time for lodgement. However, for the sake of completeness, the Full Bench stated that to make the situation plain for the applicant, they had considered those reasons and discerned no error.

31    The history of the applicant’s various concerns since her employment with Ramsay ceased in March 2011 has been set out in some detail above. As the various materials and submissions lodged by the applicant indicate, and as she explained in her written and oral submissions to the Court on the hearing of the summary judgment application, she feels indignant that her allegations as a whistle blower should not find their way to consideration in a final hearing of her unlawful termination application to FWA. Further, she is aggrieved that Commissioner Cloghan, and subsequently the Full Bench on the appeal, did not appreciate that both before and at the time she made the unlawful termination application and sought an extension of time for doing so that she was under great stress due to her personal circumstances, including Family Court proceedings, criminal proceedings involving a neighbour, the whistle blower allegations and her own personal health.

Proceedings before the primary judge

32    The primary judge held that there was no reasonable prospect of success because:

(i)    section 723 of the FW Act was a bar to the applicant’s unlawful termination application as she had already lodged a general protections claim: Reasons at [79]-[81];

(ii)    there was no evidence of any complaint having been made by the applicant against Ramsay within the meaning of s 341(1)(c) of the FW Act as necessary to found her unlawful termination application: Reasons at [82]-[83];

(iii)    there was nothing in the materials provided by the applicant that required Commissioner Cloghan to undertake additional inquiry into whether there were exceptional circumstances for the unlawful termination application being out of time: Reasons at [84].

General principles

33    The test for whether leave to appeal from an interlocutory judgment will be granted is: first, whether in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. This necessarily involves a consideration of the strength of the prospective appeal.

34    Where a matter such as this involves a self-represented litigant, it is necessary to be “alert to ensure that there may be no arguable error of law which, with appropriate amendment or permissible assistance, could be put into proper form. [A person’s] unrepresented status should not deprive them of the opportunity to have their claim, if any, determined according to law”: Atieh v Civil Aviation Safety Authority [2013] FCA 20 at [18]; Bahonko v Sterjov (2008) 247 ALR 168 at [3] and [6].

Draft grounds of appeal

35    The draft grounds of appeal are lengthy and somewhat difficult to comprehend. They primarily challenge the finding of the primary judge that there was no denial of procedural fairness when the applicant was not afforded an oral hearing on her extension of time application. Otherwise, there are a significant number of matters and assertions in the draft grounds which are no doubt important to the applicant but which are quite irrelevant to her application for leave. I do not propose to canvass these matters.

36    Accordingly, the primary issue in the proposed appeal is whether the primary judge erred in determining that the procedure adopted by the Commissioner when dealing with the applicant’s application to extend time was in accordance with the obligations on FWA to accord procedural fairness to her.

Procedural fairness

37    The primary judge considered:

(i)    the relevant provisions of the FW Act (specifically, ss 577 and 593) and the nature of FWA as an administrative decision-maker when dealing with the matter before it: Reasons at [71]-[74];

(ii)    the procedure adopted by the Commissioner commencing with the issuance of the document titled Statement of Directions, which required the parties to submit materials and written submissions in relation to the applicant’s application to extend time: Reasons at [70];

(iii)    that the Commissioner was recounting background information when referring to 5 conversations that Mr MacWatt stated he had with the applicant: Reasons at [78];

(iv)    that the Commissioner considered the merits of the applicant’s unlawful termination application: Reasons at [78];

(v)    that there was nothing in the materials provided by the applicant that required the Commissioner to undertake additional inquiry into whether there were exceptional circumstances for the unlawful termination application being out of time: Reasons at [84];

(vi)    that the Full Bench determined that the Commissioner had considered everything he needed to consider as required by ss 773 and 774 of the FW Act: Reasons at [77].

Section 577 of the FW Act

38    So far as the performance of its functions and exercise of its powers are concerned, s 577 of the FW Act requires that FWA act in a manner that:

(a)    is fair and just; and

(b)    is quick, informal and avoids unnecessary technicalities; and

(c)    is open and transparent; and

(d)    promotes harmonious and cooperative workplace relations.

39    Contrary to the applicant’s submissions, FWA is not, by virtue of s 593(1) of the FW Act, required to conduct a hearing in performing its functions or exercising its powers except as provided by the FW Act.

40    More particularly, the FW Act does not require that a hearing be conducted by FWA in respect of an application to extend time for the filing of a s 779 application. There was, accordingly, no right for the applicant to call or to cross-examine witnesses or to make oral submissions. The primary judge was correct to so find. This proposed ground is wholly without merit.

41    Nor was the procedure adopted by Commissioner Cloghan other than fair, just, open and transparent. The Commissioner set a program for the parties to file relevant materials and to make written submissions. No error on the part of the primary judge is demonstrated.

The s 723 bar

42    Significantly, and fatal to the applicant’s substantive application, as indeed it is to her present application for leave, is the effect of s 723 FW Act.

43    As the primary judge correctly stated at [79]-[81]:

[79]    Further, Commissioner Cloghan found that s 723 of the FW Act provided a statutory bar to the maintenance of the unlawful termination application that [the applicant] wished to maintain, having already lodged a general protections application which had been dismissed.

[80]    It is important to note that when the matter went on appeal to the Full Bench, it was the s 723 bar point that primary resulted in the Full Bench dismissing the appeal. It mentioned more as an aside that Commissioner Cloghan’s considerations of the exceptional circumstances grounds was also appropriate.

[81]    In these circumstances, the s 723 bar consideration provides a substantial reason why the unlawful termination application of [the applicant] could not proceed at all, regardless of what exceptional circumstances she may have been able to show. For that reason alone, the summary judgment application should succeed, because there is absolutely no efficacy or utility in requiring either the Full Bench or a Commissioner of FWA to reconsider the exceptional circumstances considerations if the unlawful termination application has little or no prospect of success because of the s 723 bar.

44    This statutory bar defeats every other complaint raised by the applicant in her draft grounds of appeal, much of which canvasses matters relevant to the issue of exceptional circumstances and in turn why, in her submission, an extension of time ought to have been granted by FWA at whichever level. The applicant made submissions alleging bias against Commissioner Cloghan. This is not contained as a proposed ground of appeal. In any event, this claim is wholly without merit.

45    Moreover, as the primary judge also correctly held, the evidence did not disclose a complaint as necessary to support the applicant’s allegation of an unlawful termination: Reasons at [83].

46    The applicant explained to me at considerable length, aided by a powerpoint display what, as she alleged, were “doctored data” concerning hospital statistics relevant to the so-called “four hour rule”. She was obviously passionate in her belief concerning these allegations in respect of which she had become a whistle-blower. Neither this judgment, nor that of the primary judge, or indeed any of the judgments of the Commission, concerns the merits of those allegations. Regrettably, the applicant has failed at every hearing along the way principally because she has failed to understand and meet the legal requirements which govern the kind of relief she has pursued. These are no mere “technicalities”. They form a well-considered regime designed principally to prevent a multiplicity of proceedings in respect of the same subject matter.

47    There can be little doubt that had she retained a lawyer competent in this area that she would not have proceeded down this path. The consequences of not taking advice are sadly self-evident.

Orders

48    The application for leave to appeal will be refused. The notice of appeal will be struck out as incompetent. I will hear the parties on costs.

Associate:

Dated:    24 May 2013