FEDERAL COURT OF AUSTRALIA

Jennings v Salvation Army [2003] FCA 1193

INDUSTRIAL LAW – termination of employment – application for extension of time – Workplace Relations Act 1996 (Cth) s170CP – principles relevant to exercise of discretion –relevance of consideration of merit of substantive proceeding based on material before the Court

Workplace Relations Act 1996 (Cth) ss 170CE, 170CF, 170CFA, 170CK, 170CP, 170CR

Workplace Relations Regulations, Reg 30C

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, followed

Roger Coyne v Ansett Transport Industries (Industrial Relations Court of Australia, unreported 24 September 1996, Decision No 449 of 1996, per Wilcox CJ, Ryan and Madgwick JJ), followed

Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 190 ALR 497; [2002] FCAFC 193, referred to

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, followed

Haining v Drake (1998) 87 FCR 248, applied

Duff v Freijah (1982) 62 FLR 280, followed

Wolcott v Davis (1984) 4 FCR 124, followed

Roger Coyne v Ansett Transport Industries (Operations) Pty Ltd (Industrial Relations Court of Australia, unreported 9 May 1996, Decision No 201 of 1996 per Marshall J), followed

Lucic v Nolan (1982) 45 ALR 411, followed

TREVOR JOHN JENNINGS v SALVATION ARMY (VICTORIA) PROPERTY TRUST INCORPORATED

V425 OF 2003

MARSHALL J

24 OCTOBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applicant’s motion dated 22 July 2003 be dismissed.

2.                  The purported application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”), be dismissed as incompetent in the absence of an extension of time being granted under s170CP(6) of the Act.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The issue for determination in the motion before the Court is whether the applicant, Mr Jennings, should be allowed an extension of time to commence an application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”) in respect of the termination of his employment by the respondent, Salvation Army (Victoria) Property Trust Incorporated (“the Salvation Army”).

Background

2                     Mr Jennings’ employment with the Salvation Army was terminated with effect from 10 January 2003. On 20 January 2003 Mr Jennings filed in the Australian Industrial Relations Commission (“the Commission”) an application for relief in respect of the termination of his employment. The original application relied upon s170CE(1)(a) of the Act, claiming that the termination was harsh, unjust, or unreasonable. On 10 February 2003, solicitors acting for Mr Jennings applied, by facsimile transmission, to amend the application so as to allege a contravention of s170CK of the Act.

3                     The Commission attempted to settle the matter in dispute in the application in a conciliation conference held on 24 February 2003. On 4 March 2003, the Commission issued a certificate under s170CF(2) of the Act, in which it stated that all reasonable attempts to settle the matter by conciliation were not, and were not likely to be, successful. That view was expressed with respect to both grounds relied upon in the amended application.

4                     Pursuant to s170CFA(3) and (6) of the Act, Mr Jennings’ solicitors lodged a notice of election to bring proceedings in this Court for an order under s170CR. The relevant form used for that purpose (Form R25) ended with the following note:

“In the event that an applicant elects to bring court proceedings, the lodgment of this Notice of Election Form in the Industrial Registry will not have the effect of commencing any such court proceedings. Consequently, in addition to the lodgment of this Form in the Industrial Registry (and the giving of a copy to the employer), it is incumbent upon the applicant to also commence such proceedings before an appropriate court.”

5                     Due to either oversight or ignorance of the law or both (a topic to which I will later return), Mr Jennings solicitors did not commence proceedings in this Court until the application in this proceeding was filed on 30 May 2003. It appears from the applicant’s material that the solicitors for Mr Jennings contended that the proceeding was filed on 27 May 2003 and requested an extension of time until that date. The document lodged and filed in court has the court stamp of 30 May 2003. The application was purportedly filed pursuant to s170CP, but did not contain any request for an extension of the time within which to bring the proceeding under s170CP(6). That sub-section provides:

“The application must be made within 14 days after the lodgment of an election under s170CFA(6), or within such period as a court allows on an application made during or after those 14 days.”

6                     In accordance with s170CP(6) the application should have been filed with the Court on or about 19 March 2003. It was filed some 10 weeks out of time.

7                     As at 19 March 2003, the Salvation Army considered that Mr Jennings no longer contested the termination of his employment.

Relevant principles for an extension of time

8                     A materially identical provision to that made by s170CP(6) of the Act was found within s170EA of the Industrial Relations Act 1988 (Cth) (“the former provision”). The principles relevant to the exercise of the Court’s discretion under the former provision were set out in a judgment of the Industrial Relations Court of Australia (“IRCA”) in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299 to 300. Those principles were described as “an unexceptionable statement of the relevant principles” by a Full Court of IRCA in Roger Coyne v Ansett Transport Industries, (IRCA, unreported 24 September 1996, Decision No 449 of 1996), per Wilcox CJ, Ryan and Madgwick JJ.  Although not technically binding on this Court, a judgment of a Full Court of IRCA is entitled to great weight (see Commonwealth Bank of Australia v Finance Sector Union of Australia (2002) 190 ALR 497; [2002] FCAFC 193).

9                     The relevant 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 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.”

10                  It is important to note that the relevant principles (being those essentially distilled and adapted from the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 to 349) were intended to guide the exercise of discretion and were not meant to be exhaustive principles. As Wilcox and Marshall JJ said in Haining v Drake (1998) 87 FCR 248 at 250:

“At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant’s explanation for delay cannot be divorced from the effect of that delay on the respondent or other people. If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”

11                  Further, as Moore J observed in Haining at 252, the discretion being exercised is “a wide one” and:

“Circumstances can arise where no explanation or no adequate explanation is given for the delay in instituting proceedings but it is nonetheless in the interests of justice to extend time...”

The explanation for the delay

12                  In an affidavit filed in support of the application to extend time, Mr Jennings’ solicitor, Mr Singer, said at paragraphs 10 to 13 as follows:

“10.     An administrative error was made by my office in that when they received the certificate from the Australian Industrial Registry via a facsimile, on the 4^th March 2003 it contained a note “Certificate and forms enclosed”. The election form (Form R25) was completed and returned on the 5^th March 2003, within the prescribed 7 days. However my clerk was not aware that a separate application had to be made to the Federal Court, believing the original application made to the Australian Industrial Relations Commission was sufficient for the proceedings to continue. The employer was on notice of all issues in dispute.

11.       The error was not discovered until contact was made with the Federal Court to enquire as to the correct filing fee. The court advised at this time that a separate Claim of Unlawful Termination of Employment needed to be lodged.

12.       The Applicant in these proceeding [sic] had always intended to proceed to have this matter heard by the Federal Court, and it is through no fault of his that the correct procedure was not followed.

13.       The error was in no way the fault of the Applicant and the Respondent does not allege it is taken by surprise by any of the issues raised.”

13                  In response, the solicitor acting for the Salvation Army, Ms Reid, said at paragraphs 5 to 10 of her affidavit that:

“5.       I have read the form R25 provided by the Australian Industrial Relations Commission, more particularly the signing clause and the “NOTE” immediately thereunder. This reads; inter alia, “In the event that an applicant elects to begin court proceedings, the lodgement of this Notice of Election Form in the Industrial Registry will not have the effect of commencing any such court proceedings”.

            A copy of the R25 is exhibited to the affidavit of Mr Singer at “GAVS4”.

6.                  I do not dispute that the election form was returned to the Australian Industrial Relations Commission Registry on 5 March 2003 as deposed to by Mr Singer.

7.                  I have read the relevant sections of the Workplace Relations Act 1996, under which the applicant seeks to make a claim. The time limits prescribed by the act in section 170CP are clear that proceedings must be commenced within 14 days of filing the R25 notice of election.

8.         Mr Singer deposes that an error had been made by a clerk in Singer’s office in regard to commencing proceedings within the prescribed time. This is not an acceptable explanation of the delay in bringing the application. Mr Singer’s explanation of events as deposed to in paragraphs 10, 11, 12 and 13 of his affidavit of 22 July 2003 are contradictory.

9.         As to paragraph 11, it is not reasonable to suggest that a Clerk would make enquiries as to a filing fee with the registry of this Honourable Court, if one was of the belief that proceeding were already on foot.

10.       Further, as Mr Singer has care and control of this action on behalf of the applicant, it is not reasonable that the blame for this delay be levelled at a Clerk.”

14                  Whatever view one takes about Mr Singer’s placement of blame at the feet of his clerk, it appears to me that his firm should have been aware that it was required to lodge a proceeding in the Court by 19 March 2003 to obviate the necessity to seek an extension of time. It failed in its duty to its client by not doing so.

15                  In Duff v Freijah (1982) 62 FLR 280 at 287, Northrop J said:

“It is well established that delays by a solicitor are visited upon the client when those delays are relevant to limitation periods or matters involving want of prosecution.”

16                  Further in Wolcott v Davis (1984) 4 FCR 124, at 128, Muirhead J said:

“…it is the parties’ solicitors who, on their behalf, conduct litigation and who have the obligation of complying with statutory procedures. It could seldom be said that the failure of a solicitor to institute an appeal in time, caused by ignorance or negligence rather than by fortuitous circumstances, such as sickness or accident, constituted special reasons.”

17                  Duff and Wolcott were cited in the primary judge’s decision at first instance in Roger Coyne v Ansett Transport Industries (Operations) Pty Ltd (IRCA, unreported 9 May 1996, Decision No 201 of 1996). In addition, the primary judge said at p.8:

“…as Wilcox J made clear in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 351, a delay by a solicitor although not necessarily to be treated as the direct delay of a client is not necessarily a sufficient basis to excuse the delay in bringing an application.”

18                  The Full Court in Roger Coyne at p.6 said:

“The delay from 25 April 1995 is attributable to a combination of apparent ignorance or oversight by the appellant’s solicitors of the existence of the time limit and the time taken by the appellant to raise the money required by those solicitors as a condition of instituting proceedings. We find nothing erroneous in the learned primary Judge’s analysis of those facts or his discussion of the circumstances in which a solicitor’s delay or negligence may prejudice a client’s application for extension of time.”

19                  In my view the delay in bringing the application in the instant case has not been satisfactorily explained. There is no reason why the solicitors for Mr Jennings, acting competently, should have waited until 10 weeks after the expiry of the relevant time limit before lodging the application in this Court. That, of itself, does not mean that an extension of time should not be granted but is a factor militating against the exercise of the Court’s discretion in Mr Jennings’ favour. It is a factor that I am prepared not to hold against Mr Jennings to any great extent in this case, given my view of the overwhelming position in support of the Salvation Army in relation to matters relevant to the merits.

Other action taken by the applicant

20                  A consideration of other action taken by the applicant is not relevant as the Court has no evidence before it that Mr Jennings took any action to contest his termination apart from seeking relief in the Commission and the Court, as referred to above.

Prejudice

21                  I accept that the Salvation Army will be prejudiced in the event that the proceeding is permitted to be lodged out of time, but to some extent the prejudice is of its own making. It will be at risk of an order being made against its interests for the reinstatement of Mr Jennings if the proceeding is permitted to stay on foot. This will occur in circumstances where it has hired a replacement employee.

22                  The evidence before the Court is that a replacement employee was engaged on 17 March 2003, some two days before the expiry of the relevant time limit. In Roger Coyne at first instance, the primary judge said at p.9:

“Ansett has employed a replacement employee. The delay in the filing of the application will have the potential to prejudice Ansett especially if a reinstatement order is under active consideration at the conclusion of the review. Adverse consequences may arise for the replacement employee. This factor also supports Ansett’s position in the context of the application to extend time. Of course, such a matter would not defeat an otherwise appropriate case for reinstatement in an application brought within time or where time is extended due to other factors. See Jason Scott Johns v Gunns Limited (1995) 60 IR 258, 271.”

23                  The primary judge’s approach in Roger Coyne on all issues except his consideration of the relevance of the merits of the substantive proceeding were approved by the Full Court, as is made clear at the commencement of the final paragraph of their Honour’s reasons for judgment.

24                  The issue in the instant case that diminishes the prejudice to the Salvation Army is the time at which it was filled.  The Salvation Army would have been in a far stronger position in relation to the question of prejudice if it was able to inform the Court that it waited until the expiry of the time limit and considered all issues closed in respect of the possibility of Mr Jennings contesting the termination of his employment before replacing Mr Jennings with another employee. Although on the other hand, the case does not illustrate a circumstance where the Salvation Army dismissed Mr Jennings and immediately employed someone else.

25                  On the whole, I consider that the issue regarding prejudice only marginally militates against an extension of time. The marginal militation arises from the fact that, if the proceeding was allowed to continue, the Salvation Army would have to prepare for a trial and rely on memories of witnesses in circumstances where those memories would be impaired by the length of time that has passed since the events relevant to the proceeding actually occurred. I note the submission of counsel for Mr Jennings that that particular factor should be rendered small or insignificant by the fact that the Salvation Army would have prepared for conciliation before the Commission. However, I accept the countervailing consideration raised by counsel for the Salvation Army that preparation for a conciliation is different and less onerous than preparation for an actual trial.

26                  In summary, I find that the question of prejudice militates against an extension of time, but only to a small extent.

The merits

27                  In the passage from Haining, quoted at [10] above, the Full Court said that a highly meritorious case might persuade a decision maker to accept the adequacy of an explanation that would not pass muster in the case of little apparent merit. It may be said that meritorious factors that might go against the grant of an extension of time would be overshadowed by the fact that there is a highly meritorious case to be advanced. If, on the other hand, the court is of the view that there is a case that has very limited prospects of success, that also might legitimately persuade the decision maker not to accept other matters that might either go in favour of an applicant or be neutral. In the circumstances of this case I consider that the merits overwhelmingly support the position of the Salvation Army.

28                  In Roger Coyne at p.8, the Full Court approved the following passage in the judgment of Fitzgerald J in Lucic v Nolan (1982) 45 ALR 411 at 417:

“Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant’s case or matters which might justify the refusal of relief, if the Court has a discretion to do so where a ground for relief is made out.”

29                  The Full Court in Roger Coyne continued:

“The Court when dealing separately with an application for extension of time is usually confined to untested assertions, often of only one party, and must take an approach similar to that adopted in granting or refusing interlocutory injunctions.”

30                  I take that approach in this case. What little material there is before the Court on the merits on the substantive proceeding is partially contained in Ms Reid’s affidavit at paragraphs 27 to 36. I set out these paragraphs below:

“27.     The Respondent’s view is that the Applicant’s claim lacks merit.

28.       The Applicant was terminated from his position after lengthy negotiations and disciplinary inquiries. The Respondent denies it has breached the provisions of the Workplace Relations Act 1996 in terminating the Applicant’s employment.

29.       I am informed and verily believe that the Applicant was suspended from employment on 21 November 2002 with pay pending the outcome of an investigation into a number of issues relating to his employment at the Fitzroy Homeless Youth Program.

30.       I am informed and verily believe series [sic] of disciplinary enquiries were made by the Respondent including meetings with the Applicant, written requests for the Applicant to answer specific questions on 27 November 2002 and written reply from the Applicant dated 6 December 2003.

31.       I am advised and verily believe that a further meeting was scheduled on 16 December 2002 which was postponed at the Applicant’s request due to illness, a further meeting was scheduled for 6 January 2003.

32.       The Applicant’s employment was terminated by letter on 9 January 2003.

33.       I am advised and verily believe that the Applicant’s employment remained suspended with pay throughout this period subject to the outcome of the investigations. I am advised and believe that at no time during this period was the Applicant’s absence from employment due to sick leave.

34.       The resulting termination was fair and reasonable.

35.       In respect of the Applicant’s claim that the Respondent is in breach of section 170CK(2)(a) & s170CK(2)(e) as pleaded at paragraph 9 of the Statement of Claim, this claim can simply not succeed.

36.       I am informed and verily believe the Respondent was not aware of any illness of the Applicant until three and a half (3.5) weeks after the disciplinary action had commenced.”

31                  The only other material before the Court on the question of the merits are the allegations contained in the Statement of Claim to which reference is made in Mr Singer’s affidavit.

32                  The Statement of Claim alleges:

·        at the time of his termination, Mr Jennings was in possession of a doctor’s certificate stating that he was unfit for work and that the Salvation Army knew this to be so;

·        at the time of his termination Mr Jennings was claiming compensation under the Accident Compensation Act 1985 (Vic) in respect of injury suffered during his employment;

·        one of the reasons for the termination was because of Mr Jennings’ temporary absence from work because of injury or illness.

33                  Under s170CK(2)(a) of the Act, employment is not to be terminated for reasons which include a reason that the employee is temporarily absent from work because of illness or injury. The material before the Court, although at this stage limited, reveals that Mr Jennings was absent from work at the time of his termination because he had been suspended on full pay pending the outcome of an investigation by the Salvation Army. It would be difficult in those circumstances for him to establish that the Salvation Army was actuated in terminating him by the reasons set out in s170CK(2)(a).

34                  Further, as counsel for Mr Jennings acknowledged, Mr Jennings may have a difficult task if the matter proceeded to trial in demonstrating that his absence from work was within the description of such absences set out in regulation 30C of the Workplace Relations Regulations. That is because the evidence in this case indicates that a medical certificate was supplied to the Salvation Army in respect of an absence that commenced in late November, where regulation 30C(1)(a) provides that the employee must have provided a medical certificate for the illness or injury within 24 hours of the commencement of the absence, or such longer period as is reasonable in the circumstances. The advancement of a contention that the period, as disclosed by the evidence in this case, was reasonable in the circumstances, would seem to be a difficult one.

35                  Mr Jennings also relies upon s170CK(2)(e).  That subsection refers to:

“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…”

In my view the making of a claim under the Accident Compensation Act does not fit within paragraph (e). Such a claim is not the filing of a complaint against an employer involving alleged violation of laws or regulations. Also, it is not the filing of a complaint against an employer involving recourse to competent administrative authorities. It involves nothing more than making a claim for compensation under a no-fault compensation scheme.

36                  Mr Jennings counsel sought an adjournment for the purposes of raising factual issues on the part of Mr Jennings’ case alleging that the termination was for reasons related to the making of a workers compensation claim, given that no factual matters were referred to in the Statement of Claim. Even if I am incorrect in my view of section 170CK(2)(e) of the Act, the Statement of Claim in its current form does not make out any such allegation by any proper pleading and there was no application before the Court to amend it. 

Fairness as between the applicant and others in a like position

37                  The consideration as to fairness between the applicant and others in a like position provides little assistance in this case. However, to the extent that it may be relevant it tends to support the refusal of an extension of time. As discussed by the primary judge in Roger Coyne at p.11, at first instance and approved on appeal, the granting of an extension in the circumstances would encourage dilatory behaviour. It is also important to bear in mind, with all of the qualifications expressed earlier in my reasons, that any reinstatement order which may occur as a result of a successful application may have adverse consequences, not only on the Salvation Army but potentially on the replacement employee engaged on 17 March 2003.

Conclusion

38                  Having regard to all the criteria examined above and especially having regard to the Court’s strong view on the merits of the application, based on the evidence and pleadings as they are now, the Court is of the view that it should exercise its discretion, in the words of Wilcox and Marshall JJ in Haining, as a matter of “overall judgment” by refusing the application. My “overall judgment” is that on the material before the Court on the motion, it is not appropriate in the interests of justice to extend the time within which an application may be made to the Court.  The motion for an extension of time should be dismissed.

Orders

39                  The Court will order that:

3.         The applicant’s motion dated 22 July 2003 be dismissed.

4.         The purported application under s170CP of the Workplace Relations Act 1996 (Cth) (“the Act”), be dismissed as incompetent in the absence of an extension of time being granted under s170CP(6) of the Act.

Associate:

Dated:              28 October 2003