Adam Hines v Independence Australia Pty Ltd

[2014] FWC 4295

[2014] FWC 4295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Hines
v
Independence Australia Pty Ltd
(U2014/7153)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 JUNE 2014

Application for relief from unfair dismissal - Application not served in accordance with Rule 14 of the Fair Work Commission Rules 2013 - Waive compliance with the Rules.

[1] On 8 May 2014, an application for relief from unfair dismissal was filed by the National Union of Workers (NUW) on behalf of Mr Adam Hines. This application was filed by email to [email protected], the email address of the Fair Work Commission’s (the Commission) case management team.

[2] On 9 May 2014, the case management team forwarded that email (attaching Mr Hines application) to the Commission’s email address approved 1 to accept lodgement of emailed applications. As such, the application was deemed to have been lodged in the Commission on 9 May 2014.

[3] On 17 June 2014, Independence Australia Pty Ltd (Independence Australia) filed their response to Mr Hines’ application which raised a jurisdictional objection that the application was filed outside the legislative 21 day time limit 2 as Mr Hines’ employment was terminated on 17 April 2014. Therefore, the application was one day out of time.

[4] Section 585 of the Fair Work Act 2009 provides that an application to the Commission must be in accordance with the procedural rules. The Fair Work Commission Rules 2013 (the Rules) at Rule 14 provides:

“(1) A document that is required or permitted to be lodged with the Commission under these Rules may be lodged by emailing the document to an email address approved by the General Manager for the lodgement of documents by email.

Note: The email addresses approved for lodgement of documents are available at The email address that received Mr Hines’ application (noted in [1]) is not an email address that is approved for the lodgement of documents. However, Rule 6 of the Rules provides that the “Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.”

[6] On 19 June 2014, I caused correspondence to be sent to the representatives of Independence Australia (the representatives) and directed them to provide submissions as to why I should not dispense with the requirements of Rule 14 and accept that the application was lodged within time.

[7] On 23 June 2014, the representatives advised that Independence Australia did not intend to make any submissions in relation to the directions I issued on 19 June 2014.

[8] The Commission is required to establish procedures that are quick, flexible and informal. The Commission has made rules for the filing of documents by email to a specific email address. To treat an application that was filed in time but to another Commission email address as not filed until it was forwarded to the correct Commission email address would elevate form over substance and would be inflexible and unfair. Therefore, I am satisfied in these circumstances that I should waive compliance with Rule 6 of the Rules and Mr Hines’ application will be will be taken to have been made on the date that the email was received on 8 May 2014. Hence the application was filed within 21 days from the date the dismissal took effect. The application will be referred to conciliation.

DEPUTY PRESIDENT

 1   See Rule 14 of the Fair Work Commission Rules 2013.

 2 See s.394(2)(a) of the Fair Work Act 2009.

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