Anthony Charles Rutherford v The Apprentice and Traineeship Company Inc - [2022] FWC 2802

[2022] FWC 2802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Charles Rutherford
v

The Apprentice And Traineeship Company Inc

(U2022/6614)

COMMISSIONER SCHNEIDER

PERTH, 19 OCTOBER 2022

Application for an unfair dismissal remedy - Extension of time - Technical issues - Quarantined lodgement - Exceptional circumstances - Extension granted

Mr Anthony Rutherford (the Applicant) has made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he has been unfairly dismissed from his employment with The Apprentice and Traineeship Company Inc (the Respondent).

The Respondent has objected to the application on the ground that the application has been lodged out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time or that there are exceptional circumstances warranting an extension of time to be granted.

In summary, and for the reasons that follow, I have concluded that an extension of time is granted, the matter will proceed.

Background

After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing of the matter.

At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not call any witnesses. The Applicant filed submissions in the Commission on 29 July 2022. The Respondent filed submissions in the Commission on 3 August 2022. Final submissions were filed by the Applicant 31 August 2022. Final submissions were filed by the Respondent on 16 August 2022.

The Applicant submits that the application was made on 8 June 2022. This alleged lodgement was never received or processed by the Commission’s registry. The Applicant submits he followed up, on 24 June 2022, with the Commission by phone and was informed that no application had been received. The Applicant then re-sent his application. Significant technological issues were encountered by the Applicant when submitting the application on 24 June 2022. The lodgement attempt on 24 June 2022 was initially quarantined by the Commission’s systems. The quarantine was seemingly prompted by the Applicant’s use of share file links within the email, linking the attachments to his application. The lodgement was successfully retrieved and processed shortly after it was quarantined.

The Applicant is of the position that his application was filed within the 21-day time limit as required by the Act. The Applicant believes that it would be prejudicial if his application was not granted an extension of time when his application not being received by the Commission was outside his control.

The Respondent submits that the application was not in fact made until 24 June 2022 because, until the hearing, the Applicant was unable to provide any evidence of his application initially being filed on the 8 June 2022.

Relevant Law

Section 394(2) of the Act provides that such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Anthony Charles Rutherford v The Apprentice and Traineeship Company Inc [2022] FWC 2802
Case: [2022] FWC 2802
Decision Date: 19 OCTOBER 2022

CaseChat Overview and Summary

The Applicant, Mr Anthony Rutherford, has applied to the Fair Work Commission (FWC) for an order granting a remedy for his unfair dismissal from his employment with The Apprentice and Traineeship Company Inc. The Respondent, the employer, has objected to the application on the basis that it was lodged outside the 21-day time limit required by the Fair Work Act 2009. The Commission must decide whether there are exceptional circumstances warranting an extension of time. The key issue before the Commission was whether the Applicant's application, which was lodged on 24 June 2022, was made out of time and, if so, whether there were exceptional circumstances warranting an extension of time. The Applicant had made a bona fide attempt to lodge his application on 8 June 2022, within the 21-day time period. The Applicant made subsequent enquiries regarding his application. The Applicant, upon being notified that his lodgment was not successful, promptly lodged the same application again. The Applicant was able to provide evidence of the first attempted lodgment and his subsequent contact with the Commission in an attempt to confirm the status of his application. The Commission’s internal IT team have validated the Applicant’s submissions and evidence by providing confirmation that the original lodgment was indeed quarantined. Had the email on 8 June 2022 not been quarantined, or had it been correctly identified as a lodgment, the Applicant’s unfair dismissal application would have been made within time. In consideration of all the circumstances, the Commission concluded that there are exceptional circumstances in this matter. Those exceptional circumstances arise as a result of the Commission’s systems failing to identify the Applicant’s email as a lodgment. The Applicant was prompt in relodging the application when he was made aware that it had not been received. There is no evidence before the Commission of circumstances in this matter which would weigh against a finding of exceptional circumstances. Therefore, the Commission has granted the Applicant an extension of time, and the matter will proceed.

Orders