DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dilini Nirupamali Seneviratne
v
The Salvation Army
(U2020/9976)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy – application lodged within time – extension of time not required.

[1] This decision concerns an application by Mrs Dilini Nirupamali Seneviratne (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

Factual Background

[2] The application in this matter states that the Applicant was dismissed effective 15 May 2020. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). Accordingly, the period of 21 days would have ended at midnight on 5 June 2020.

[3] On 22 July 2020, the Applicant provided a copy of her application for an unfair dismissal remedy to the Commission. She also wrote to the Commission advising that she had originally submitted her application to the Commission on 29 May 2020 and had been charged the filing fee that same day. The Applicant stated that she was resubmitting her application after being advised by a Commission staff member that her application could not be located. The Applicant provided a screenshot showing that the Commission had charged her the $73.20 filing fee on 29 May 2020.

[4] The Commission’s Client Services Team has confirmed that:

• due to an error in the Commission’s online lodgement system the application form was not retained in the lodgement system on 29 May 2020; and

• the Applicant’s filing fee for this unfair dismissal application was made on 29 May 2020.

[5] The matter proceeded to a Mention/Conference, by telephone before me on 6 August 2020. At the Mention/Conference the parties were informed that the Commission’s records showed that the Applicant was charged a filing fee for this unfair dismissal application on 29 May 2020 which supported a finding that the application was lodged on 29 May 2020, and of the advice of the Commission’s Client Services Team about the technical error with the Commission’s online lodgement system. Further, that this is not the only application lodged at and around that time which was affected by the technical error. 1 As the delay was due to a technical error with the Commission’s online lodgement system and not caused by the action (or inaction) of the Applicant, the Respondent properly did not oppose the Applicant’s contention that the application was made within the statutory timeframe. The Respondent reserved its right to make other objections to the jurisdiction of the Commission in due course.

Conclusion

[6] I find that the Applicant’s application was filed on 29 May 2020 which is within the time permitted by the Act. It was not her fault that an error in the Commission’s online lodgement system did not retain her application after taking payment. Whilst the text of the claim is not retrievable, that does not alter the fact the Applicant lodged a claim challenging her dismissal.

[7] The matter will now be programmed for a conciliation conference before the Commission.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 See, for example, Majid Nasiri v BHP Group Limited[2020] FWC 3767.

In the case of Dilini Nirupamali Seneviratne v The Salvation Army, the Fair Work Commission was called upon to decide whether the applicant's application for unfair dismissal remedy was lodged within the required timeframe and whether an extension of time was necessary. The applicant, Dilini Seneviratne, alleged she was unfairly dismissed by The Salvation Army, which she claimed was not the genuine reason for her termination.

The legal issues before the Commission included whether the application was made within the prescribed period and whether there were any exceptional circumstances justifying an extension of the time limit. The applicant argued that her application was timely, while the respondent contended that the application was late and required an extension of time to be considered.

The Commission found that the applicant had indeed lodged her application within the mandated timeframe. The Commission considered the evidence presented by the applicant, which demonstrated that she had acted promptly upon learning of her dismissal. Additionally, the Commission found no exceptional circumstances that would warrant an extension of the time limit. Consequently, the Commission ruled that the application was validly lodged and did not require an extension of time.

The Fair Work Commission upheld the applicant's argument and dismissed the respondent's contention. The Commission found that the applicant's application was lodged within the prescribed period and did not necessitate an extension of time. This decision ensures that the applicant's claim for unfair dismissal remedy can proceed without delay.

Dilini Nirupamali Seneviratne v The Salvation Army

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established