Erica Louise Wilkinson v Caring 4 Kids Pty Ltd ATF the J & J Sarkis Family Trust
[2023] FWC 3431
•21 DECEMBER 2023
| [2023] FWC 3431 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Erica Louise Wilkinson
v
Caring 4 Kids Pty Ltd ATF The J & J Sarkis Family Trust
(U2023/11408)
| COMMISSIONER MATHESON | SYDNEY, 21 DECEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – extension of time –application made within statutory period – jurisdictional objection dismissed.
Ms Erica Louise Wilkinson (Applicant) is seeking an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The respondent in this matter is Caring 4 Kids Pty Ltd ATF The J & J Sarkis Family Trust with an ABN of 47 155 268 428 (Respondent).
The Respondent has filed a ‘Form F3 – Employer response to unfair dismissal application’ raising a jurisdictional objection that the application is out of time (i.e. lodged more than 21 days after the dismissal took effect). This decision deals with the jurisdictional objection.
Background and context
The Applicant was dismissed from her employment on 11 October 2023. It is not in contention that for the application to have been made within 21 days after the dismissal took effect, it needed to have been made no later than 1 November 2023.
Questions arise as to whether the application was made within 21 days after the dismissal took effect and, if it was not, whether the Commission can be satisfied that there are exceptional circumstances, taking into account the considerations in s.394(3) of the Act, that warrant a further period for the application to be made.
Hearing
On 1 December 2023 the matter was allocated to my Chambers and the matter was set down for a hearing that was held on 19 December 2023 to deal with whether the application was made on time and if not whether an extension of time should be granted.
The Applicant sought to be represented by a paid agent during the hearing, Mr Anthony Dimmitt. The Respondent did not raise any objections to the Applicant being represented by a paid agent. In these proceedings complex questions of both fact and law arise, including in relation to the question of whether certain emails sent to the Commission by Mr Dimmitt mean that an application has been made within 21 days after the dismissal took effect. Mr Dimmitt, the representative who has sought to assist the Applicant in making an application is central to the factual matrix in relation to the matter. In the circumstances of this matter, I was satisfied that granting permission for the Applicant to be represented by a paid agent would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Accordingly, in accordance with s.596(2)(a) of the Act I granted the Applicant permission to be represented by a paid agent. At the hearing the Applicant was therefore represented by Mr Anthony Dimmitt and the Respondent was self represented by Ms Kerry Smith, Coordinator of the Respondent and Mr John Sarkis, Director of the Respondent.
Consideration of the evidence and submissions
Mr Dimmitt is the Applicant’s paid agent. Mr Dimmitt said that on 1 November 2023 he attempted a number of times ‘to send files but [his] scanner was inoperative and [he] had to use an app which had a code’. During the hearing Mr Dimmitt clarified that this app was called ‘PDF Viewer.’ The Applicant submits that when Mr Dimmitt sent the application on behalf of the Applicant using this app on 1 November 2023, it was filed within the 21 day period prescribed by the Act.
The Applicant filed a picture of a computer screen that appears to be a picture of an email inbox with the computer screen showing the time of 11.42pm on Wednesday 1 November 2023. In that inbox are two emails of note:
· An email with the subject line ‘FWC’ which has been forwarded from another email and which commences “Dear Fair Work Commission Herewith an application from Erica Wilkinson for Unfair Dismiss….” and which was forwarded to the inbox at 12.24pm.
· An email with the subject line ‘FWC’ which commences “Dear Fair Work Commission. A password is required to open my attachment: 228022AJD…” and which was forwarded to the inbox at 12.29pm.
The Commission’s email records indicate that on 1 November 2023 the Applicant’s representative, Mr Dimmitt two sent emails attaching a file to the Commission entitled ‘FWCErica.pdf’ at 12.24pm and 12.28pm which were captured by the Commission’s email quarantine system.
The Commission’s records indicate that the following day, 2 November 2023, at 12.49pm and 12.50pm, the Commission sent two emails to Mr Dimmitt advising him that the Commission had received the emails but could not access the emails or attachments because of:
the format of the files
security restrictions on the files
the Commission’s security restrictions for file sharing websites (such as websites that require a password or time-out after a period of time), or
the Commission’s security restrictions for compressed files (such as .zip files).
The email requested that Mr Dimmitt send the documents again without any security restrictions in one of the Commission’s preferred formats.
Mr Dimmitt’s evidence was that he did not receive the Commission’s emails of 2 November 2023 and assumed they went to his junk mail.
Mr Dimmitt’s evidence was that in the afternoon of 2 November 2023, 22 days after the dismissal, he attended the Commission’s Sydney Registry to ensure the application had been received and was readable. Mr Dimmitt said he spoke to a Commission staff member who ‘went back into the main room’ to check if the application had been received and was readable, that he offered to leave a paper copy of the application twice but the Commission staff member reassured him the application was received and was readable. Mr Dimmitt said he asked how long it would take and was advised ‘a few weeks’.
Mr Dimmitt said he later called the Commission to follow up on the application and learned that there was an issue with the application that he had filed. This appears to be the case because on 17 November 2023 the Commission resent Mr Dimmitt the emails that were initially sent to him on 2 November 2023 advising him of the issue with his application. The Commission’s records indicate that these emails were sent at 1.56pm and 1.58pm on 17 November 2023.
At 4.50 pm on 17 November 2023, a short time after the emails from the Commission were resent, Mr Dimmitt sent a document to the Commission’s Melbourne Registry titled ‘F2’. The subject line of the covering email stated ‘Unfair Dismissal Application: ReSubmitted In Correct Format’. The body of the covering email stated:
“I have rresubmitted (sic) my original application Upon submitting my first application I visited the Sydney Office and a kindly female officer went inside to check if my application had been received and reassured me that it had been received correctly. I even offered to leave a paper copy for the Commission in case they had trouble reading it. She again ressured (sic) me that was not necessary. For some reason I did not receive the letter asking me to correct the error. It must have gone to my junk mail.
I am seeking to have the matter accepted within the time limit notwithstanding the above errors and innocently mistaken advice from the Sydney office. I have spoken with Kimberley in the client services team who kindly resent the original response hence the corrective email.”
On 20 November 2023 a paper copy of the Form F2 filed on 17 November 2023 was filed with the Commission’s Sydney Registry.
On 22 November 2023 the Commission wrote to the Applicant acknowledging receipt of her application form and indicating that the staff will check the application to make sure it is complete.
On 29 November 2023 Vice President Catanzariti’s Chambers wrote to the parties noting that the application filed on 17 November 2023 appeared to have been filed late and seeking a response from the Applicant.
On 1 December 2023 the Applicant responded to the email of 29 November 2023 stating:
‘Can someone please advise me that my case is still going ahead and that the paperwork was misplaced by your office and then was advised in person at the Sydney office that they received it and not that we didn’t file it in time?’
On 1 December 2023 the matter was allocated to my Chambers and the matter was set down for a hearing that was held on 19 December 2023 to deal with whether the application was made on time and if not whether an extension of time should be granted.
Consideration
Section 394(2) of the Act provides:
“The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”
As noted by the Full Bench of the Commission in Hatch v Woodside Energy Ltd[1] the proper approach to determining when an application is “made” requires focus on when the application is received by the Commission. There are no definitions in the Act as to what it means for an application to be “made” within the time period specified in s.394(2).
However s.585 of the Act provides that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind. The Fair Work Commission Rules 2013 (Rules) regulate the way in which applications to the Commission must be lodged. Relevantly, Rule 14 deals with lodgement of documents by email.
Subrule 14(1) provides that a document that is required or permitted to be lodged with the Commission under the Rules may be lodged by emailing the document to an email address approved by the General Manager for the lodgement of documents by email. The emails sent by Mr Dimmitt on 1 November 2023 were sent to such an email address, being the email address for the Commission’s Melbourne Registry.
Subrule 14(3) provides that if a document is lodged by email, for a document other than a statutory declaration, it needs to be attached to the email in Word, RTF or PDF format or another format approved by the General Manager and needs to be attached without any security restrictions. I am satisfied based on the evidence before me that on 1 November 2023 Mr Dimmitt sent two emails to the Commission attaching a PDF file entitled ‘‘FWCErica.pdf’. However the Commission’s correspondence suggest the email or attachment could not be accessed. The Applicant and Mr Dimmitt both gave evidence that the contents of the document attached to the emails of 1 November 2023 was the same as the Form F2 application that was filled by hand on 20 November 2023 and which Mr Dimmitt filed again on 17 November 2023.
In Hatch v Woodside Energy Ltd[2]the Full Bench considered circumstances where an applicant had filed an application that could not be read by the Commission and said:
“[50] One issue of significance was the fact that the Appellant’s initial email at 11.59pm AWST attached a document that the FWC Registry was unable to read. On the material before us, we consider that was an issue of “lodgement” and did not affect whether the application had been “made”. It is also unclear to us exactly what the reason was for the Registry being unable to view the initial attachment. As noted above, the email sent on 5 May 2022 from the Registry stated that the attachment could not be opened because of the format of the files, or security restrictions of the Commission for some file sharing websites. We note that correspondence does not indicate what the actual reason was that the files contained with the Appellant’s first email could not be read. We also note the Appellant has stated (and we have no reason to doubt) that his initial email did contain a “Word” format document, which is consistent with the correspondence from Registry regarding its preferred file formats. In the event that it was not, compliance with rule 14 is waived.”
The Full Bench went on to state that when an application is made by email the Electronic Transactions Act 1999 (Cth) (ETA) is relevant and in this regard made reference to s.14A of the ETA which provides:
“(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addresses; or
(b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become award that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different to the place where the electronic communication is taken to have been received under section 14B.”
The Full Bench considered that s.14A(2) means that it is to be assumed that the electronic communication is capable of being retrieved unless there is an agreement between the originator and addressee to the contrary.[3] The Full Bench noted that there was no such agreement in evidence in that matter[4] and I note there is no evidence of any such agreement in the matter before me.
The Full Bench said:
“[55] Applying these provisions, as the application was received at 11.59pm AWST, it is to be assumed that it was capable of being opened. The facts are in this matter that the Fair Work Commission officer was unable to access the document. The Applicant submits that the application was made in the required format and the Fair Work Commission should have been able to open the document.
[56] We do not think it the intent of the legislature that the Fair Work Commission embarks on an enquiry as to the technical reasons that the file could not be opened. Short of adducing potentially complex evidence to explain why (and whose ‘fault’ it might be) that a file could not be opened, in many cases the evidence will go not further than one party asserting that an electronic file was in good order and the other saying they could not open it and therefore the opposite must be true. The answer to those practical problems are provided for in s.14A92) of the ETA, which establishes that an assumption is to be made that it could be capable of being retrieved. The fact that it could not be opened does not mean that the application was not made within the 21-day time period, where the presumption is engaged.”[5]
In Oakes v Fernance Enterprises Pty Ltd T/A Autobarn Lismore[6]the Full Bench dealt with a matter in which the Commission sent correspondence to the applicant in that matter informing him that it could not open the file he had lodged that day because of the format of the files, security restrictions on the files or the Commission’s security restrictions and invited him to send the documents again in one of the Commission’s approved file formats. The applicant in that matter resent the file as a PDF however when he did so it was more than 21 days after the date the dismissal took effect. In that matter the Full Bench said:
“[39] Noting it is not contended otherwise, we are satisfied that the document that Mr Oakes sent to the Commission on 9 August 2022 was the same as the PDF document filed with the Commission on 17 August 2022, being the application for an unfair dismissal remedy dated 8 August 2022. Mr Oakes’ unchallenged evidence was that he downloaded what he understood to be a Word version of the Form F2 application from the Commission’s website and lodged the completed application in that format on 9 August 2022. As observed by the Respondent and identified in the Commission’s 9 August 2022 correspondence to Mr Oakes, Word is one of the Commission’s recommended file formats. However, noting that the Commission’s 9 August 2022 correspondence to Mr Oakes does not, with specificity, identify the particular format of Mr Oakes’ application, in the event that the application was lodged on 9 August 2022 in a format other than that required by rule 14 of the Rules, we exercise our discretion to waive compliance with the Rules and accept the application lodged by Mr Oakes on 9 August 2022.
[40] In these circumstances, the fact that the file sent on 9 August 2022 by Mr Oakes could not be opened by the Commission’s registry at that time does not result in a conclusion that the application had not been “made” for the purposes of s 394(2) of the Act on 9 August 2022.”[7]
Based on the evidence before the Commission, it seems likely that the emails of 1 November 2023 were received by the Commission but captured by the Commission’s quarantine systems due to the app used by Mr Dimmitt to capture the handwritten document in a form that could be transmitted via email. I accept Mr Dimmitt’s evidence that the app required that a code be entered in order to open the attachment and it is apparent that in the email sent by Mr Dimmitt at 12.28pm on 1 November 2023 he has attempted to send this code to the Commission so that the attachment entitled ‘FWCErica.pdf’ could be opened. The Commission did not email Mr Dimmitt to advise him that there was a problem with his application until more than 24 hours had passed, which was the 22nd day from the day the dismissal took effect. I accept the evidence of the Applicant and Mr Dimmit that the document sent to the Commission by Mr Dimmitt on 1 November 2023, being the file entitled ‘FWCErica.pdf’ was the same document later filed with the Commission, being the Form F2 application. I also accept, based on the evidence of Mr Dimmit and chronology of events that Mr Dimmit did not form an understanding that there was an issue with the application until 17 November 2023 when he called to enquire about it as he has quickly acted to respond to the emails from client services sent to him on that same day. While the document lodged by email on 1 November 2023 does not appear to have complied with subrule 14(3)(iii) in that it appears it was lodged with security restrictions in the circumstances of this matter, pursuant to s.586(b) of the Act I waive the irregularity of the manner in which the application was made and waive compliance with Rule 14.
Conclusion
The Applicant’s emails attaching the application were received by the Commission on 1 November 2023 and the fact that the application could not be opened does not mean that the application was not made within the 21-day time period. I find that the application for unfair dismissal remedy was made within the statutory timeframe of 21 days when it was lodged on 1 November 2023 and the Respondent’s jurisdictional objection that the application was made out of time is dismissed. Directions will now be set down to deal with the merits of the application.
COMMISSIONER
Appearances:
Mr A Dimmitt on behalf of the Applicant.
Ms K Smith and Mr J Sarkis on behalf of the Respondent.
Hearing details:
2023.
Sydney (by Video).
19 December.
[1] [2023] FWCFB 51 at [21].
[2][2023] FWCFB 51.
[3] [2023] FWCFB 51 at [54].
[4] [2023] FWCFB 51 at [54].
[5] [2023] FWCFB 51 at [55] – [56].
[6] [2023] FWCFB 69.
[7] [2023] FWCFB 69 at [39] – [40].
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