Anthony Charles Rutherford v The Apprentice and Traineeship Company Inc
[2022] FWC 2802
•19 OCTOBER 2022
| [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 an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Under section 394(2) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account; the reason for the delay; any action taken by the Applicant to dispute the dismissal; any prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
The Commission has previously determined that technological issues, that arise outside the control of an applicant or at the fault of the Commission, can indeed give rise to exceptional circumstances. Generally, a bona fide attempt at lodgment, of which there is evidence to prove the attempt, which is then fettered by technological issues at the fault of the Commission, and then promptly remedied by an applicant upon revelation of the failed lodgment, will give rise to exceptional circumstances.[2]
In Perrett v Teeth Health Life Dental the Commission granted an extension of time in circumstances where a fault with the Commission’s website contributed to the late lodgment.[3] Commissioner Riordan, relevantly, provided the following:
“It would seem unfair and incongruous to me if the FWC were to accept the excuse that a legal practitioner’s error can provide an exceptional circumstance for the time to submit an application be extended but deny any applicant the same outcome due to the incapacity or malfunction of its own website. In both of these scenarios, the applicant is not at fault.”[4]
In Volchkov v Cantek Pty Ltd the Commission granted an extension of time to an applicant who encountered issues attaching their application to an email.[5] The applicant, in that matter, subsequently made further enquiries as to the status of his application and, upon learning it had not been correctly lodged, promptly refiled the application. In granting the extension, Commissioner Cirkovic noted:
“This is a case where the Applicant has made a genuine attempt to comply with the statutory timeframe and has been frustrated in his endeavours by technology. It is also a case where the Applicant has made a genuine endeavour to after the event follow up on the course of his application.” [6]
In Elefantis, Saki v The Trustee for Timber Ridge Unit Trust the Commission granted an extension to file in circumstances where the representative’s internal IT systems contributed to the late filing.[7] In that matter, the representative’s internal IT systems incorrectly quarantined the outgoing lodgment.
In Slade v YMCA SA, an extension of time was granted to an applicant whose lodgment had been quarantine under very similar circumstances to the Applicant in the matter currently before the Commission.[8] In granting the extension,[9] Deputy President Gooley noted that the error was outside of the applicant’s control and provided the following assessment of the circumstances:
“While the failure of electronic communications is not unusual Mr Slade’s circumstances is unusual. It was the combination of that failure, along with the quarantining of his email and the failure of the Commission to recognize the quarantined email as an application…”[10]
Criteria to be considered
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 19 May 2022.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 19 May 2022, the same day that it took effect. Therefore, the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application.
When was the application made?
The parties are in dispute about when the application was made.
The application was lodged by email. Where an application is lodged by email, the application is made at the time it was received electronically by the Commission, provided that the Commission has sent an acknowledgment of the lodgement by email.[11]
The application currently before the Commission was lodged on 24 June 2022. However, as will be clear from the discussion that follows, the Applicant did attempt to lodge the same application on 8 June 2022.
Reason for delay
The Applicant submits that a technical issue, at the fault of the Commission, caused the delay in lodgement. The Applicant maintains that he initially lodged the application on 8 June 2022 and that email was subsequently quarantine by the Commission’s systems for reasons outside of his knowledge.
During the Hearing, it became clear that the Applicant was previously confused about the potential for him to forward the first attempted lodgement from his email to the Commission for review. The Applicant then provided an email from his sent items titled “Application for unfair dismissal and waiver form”. It appears this email was sent on 8 June 2022 at 10:30am to a legitimate Commission email address. It also appears that this email did attach the relevant application form.
The Respondent raised issue with the Applicant’s delayed production of the email. The Respondent submits that the Applicant was provided numerous opportunities to provide this email prior to the hearing however, failed to do so. The Respondent submitted that the delay did not meet the grounds of an “exceptional circumstance” and outlined the below:
“In a tender situation it is 100% incumbent on the submitting party to ensure an application is received prior to deadline. Post issues, courier issues, electricity blackouts are not accepted, neither is excessive traffic that may affect the systems capability at the appointed deadline.”
“ATC humbly submits that not taking the care to ensure the application was submitted correctly does not constitute an Exceptional Circumstance.”
Following the hearing, my Associate enquired with the Commission’s internal IT team and requested that further investigations take place in relation to the Applicant’s claim that he had submitted his application on 8 June 2022.
On initial review, the email was not able to be located. However, upon a further and more thorough review, the Commission’s internal IT team located the email and confirmed the below:
“The email was sent to [email protected] on the 8th June and was quarantined due to a ‘Dangerous Attachment’”.
“Unfortunately emails held in quarantine are purged with extreme prejudice after a month. So I cannot provide a copy of the email. But I have attached the message trace logs, and highlighted the appropriate entries showing that the email was sent on 8th June, and was quarantined at the gateway”.
The email from the Commission’s IT team also attached a log which confirmed the attempted lodgment. The log also confirms that the email attached the relevant application form and additional annexures.
The Applicant was also provided evidence of his contact to Commission staff later in June to follow up the status of his application.
The Respondent made several assertions in relation to the communication skills of the Applicant. I acknowledge that the Respondent is justly frustrated with the lateness in which the Applicant was able to forward the email dated 8 June 2022. However, from the Commission’s interaction with the Applicant during these proceedings, I am satisfied that this was not done out of negligence or with any negative motivation. Rather, I am satisfied that the Applicant genuinely struggled to find the email in question and until the day of the hearing.
I note that the Applicant has largely been forthcoming and compliant with the Commission’s directions. It appears that the quarantine of the second lodgement of the application caused confusion for all parties, particularly the Applicant. This confusion and the recurrent quarantine of the Applicant’s lodgements, it appears, perhaps led the Applicant to believe that, upon the release of the second quarantined lodgement, the Commission was aware of the attempted lodgement on 8 June 2022.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute the dismissal prior to making this application.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[12]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Consideration – are there exceptional circumstances?
I find the following:
· The Applicant made a bona fide attempt to lodge his unfair dismissal 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 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, I find 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 me of circumstances in this matter which would weigh against a finding of exceptional circumstances.
Conclusion
Having come to the conclusion that there are exceptional circumstances in this matter, I am satisfied to exercise the discretion to grant the Applicant an extension of time. The matter now will proceed.
COMMISSIONER
Final written submissions:
Respondent, 16 August 2022.
Applicant, 31 August 2022.
[1] [2018] FWCFB 901, at [39].
[2] [2010] FWA 1394.
[3] [2016] FWC 8312.
[4] [2016] FWC 8312, at [37].
[5] [2018] FWC 4710.
[6] [2018] FWC 4710, at [15].
[7] [2021] FWC 3955.
[8] [2017] FWC 5198.
[9] [2017] FWC 5198, at [24].
[10] [2017] FWC 5198, at [16].
[11] Fair Work Commission Rules 2013 (Cth) r 14(4).
[12] [2011] FWAFB 975, at [36].
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