Indya Toner v State Management Solutions Pty Ltd

[2021] FWC 6308

[2021] FWC 6308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s. 394 - Application for unfair dismissal remedy

Indya Toner
v
State Management Solutions Pty Ltd
(U2021/8726)

COMMISSIONER MIRABELLA MELBOURNE, 10 NOVEMBER 2021

Unfair dismissal application filed out of time - circumstances exceptional - extension of time for filing allowed.

[1] This decision concerns an application by Ms Indya Toner for an unfair dismissal remedy (the Application) pursuant to s. 394 of the Fair Work Act 2009 (Cth)(the Act).

[2] Ms Toner’s employment with State Management Solutions Pty Ltd (the Company) was terminated on and with effect from 7 September 2021. 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 Fair Work Commission (the Commission) allows pursuant to s. 394(3). The period of 21 days ended at midnight on 29 September 2021. Ms Toner’s Application was lodged on 30 September 2021. She submits that the Application was not filed out of time and that, in the alternative, due to representative error, the Commission grant a further period for the Application to be made under s. 394(3).

[3] The Company did not object to Ms Toner’s request that the matter be determined on the papers.

Extension of time

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Exceptional circumstances are those that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[5] The requirement that there be exceptional circumstances before time can be extended under s. 394(3) contrasts with the broad discretion conferred on the Commission under s. 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission take into account the following:

“(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Ms Toner’s Application. 

Relevant factors

[8] Reason for the delay: The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an “acceptable” or “reasonable” explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however, all of the circumstances must be considered. 3

[9] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 4

[10] Ms Toner made a number of submissions regarding the circumstances surrounding the filing of the Application. She relies on these to assert that there was no delay in filing the Application.

[11] Ms Toner says that, on 27 September 2021, the Commission’s Online Lodgment Service was unavailable. That, in order to file the Application, her legal representative, Artemis Vasilaras, manually downloaded and completed the Form F2. The legal representative sent an email to the Commission’s Melbourne Registry (the Registry) purporting to be the lodgment of the Application and attached to it a document which appears to be an outline of Ms Toner’s submissions. It is headed “Unfair Dismissal Application” (the Attachment). The email did not include the Form F2.

[12] At the time of writing this decision, the Commission’s Online Lodgment Service was still unavailable. Due to scheduled maintenance, this has been the case since 8 September 2021. 5 The Commission’s website specifically states that “[y]ou can still lodge an application by downloading the relevant Form and submitting it to your local Commission office by email or fax.”6

[13] Although the Commission’s Online Lodgment Service was not available, the Commission’s email service was working, and the legal representative used it. The reason the Form F2 was not received by the Commission on 27 September 2021 was because the legal representative did not attach it to the email they sent to the Registry. Technical issues are not relevant in determining whether there was an acceptable reason for the delay in this matter.

[14] On 30 September, the Registry informed Ms Toner’s legal representative that their email did not attach the Form F2 and that the Commission cannot begin processing an application until the relevant form is lodged with the Commission as per rule 14 of the Fair Work Commission Rules 2013 (the FW Rules). Accordingly, the Registry recorded the lodgment date as 30 September, the date the legal representative filed the Form F2 by emailing it to Registry. In the body of this email, presumably to explain why the Form F2 had not been sent in the 27 September email, the legal representative stated that “[a]pologies, however, I must have inadvertently failed to attach the Form F2, which is now attached.” 7

[15] Ms Toner submits that the Application was not filed out of time because “her unfair dismissal application was filed by email on 27 September 2021, despite the approved form being inadvertently omitted in the Applicant’s solicitor’s email to the registry.” 8

[16] She further submits that rule 8(5) of the FW Rules means the lodgment of the Application was made within the 21-day period as per s. 394(2)(a).

[17] Rule 8(5) provides:

“(5) If these Rules require that an approved form be used, it is sufficient compliance if a document is substantially in accordance with the approved form.”

[18] Ms Toner submits that, as per rule 8(5), the Attachment “substantially complied with the Form F2”. Accordingly, she says that the Application was made on 27 September and not on 30 September as asserted by the Registry.

[19] I am not persuaded that rule 8(5) applies to the Attachment as Ms Toner submits. On 27 September, the legal representative sent an email to the Commission purporting to file the Application. The legal representative did not intend to file the Attachment as a substitute to the Form F2, but as an addition to it. I find that the Application was made on 30 September 2021.

[20] Separate to these submissions, Ms Toner says that, if there was a delay, the reason for it was representative error. The Company submits that Ms Toner has contributed to the delay by waiting 20 days after the dismissal to instruct her legal representative in this matter.

[21] Representative error is only one of a number of factors to be considered when deciding to grant an extension of time to file an application and the conduct of an applicant is central in assessing whether the representative error is a sufficiently acceptable reason for the delay in filing. 9

[22] Ms Toner instructed her legal representative on the 20th day after she was dismissed. This was within the 21-day statutory period and not the reason the Application was filed out of time. The Application was filed out of time because of the actions of the legal representative.

[23] The legal representative took instructions from Ms Toner at 2:00pm on 27 September 2021 and purported to file the Application later that day. They were aware that the next day, 28 September, was the last day for filing within time. By accepting Ms Toner as a client and undertaking to file the Application, the legal representative should have taken reasonable steps to ensure that they did in fact file the Application correctly. They could have done so by simply checking their “sent” email folder either on 27 September or the following day.

[24] But for the representative error, the Application would have been filed within the 21-day statutory period. Instructions were given, a submission was prepared, and an email was sent to the Registry before the 21-day period expired. Ms Toner should not be disadvantaged because her legal representative failed to attach the Form F2 to the email purporting to lodge the Application, and then failed again to check their “sent” email folder. I am satisfied that Ms Toner has provided an acceptable explanation for the delay. This weighs in favour of a conclusion that there are exceptional circumstances.

[25] The considerations in s. 394(3)(b), (c), (d) and (f): Ms Toner was notified of her dismissal on the same day that it took effect. On 27 September 2021, Ms Toner disputed her dismissal by instructing solicitors to file the Application. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Toner and other persons. The Company accepts that it suffers no prejudice from the delay. I consider these four matters to be neutral considerations.

[26] Merits of the application: The Act requires me to take into account the merits of the Application in considering whether to extend time. At this point, it is not possible to form any concluded view. The Company did not file a response to the Application but made submissions regarding the jurisdictional point. The competing contentions of the parties in relation to the merits of the Application are at this preliminary stage unknown and untested. The merits of the Application would need to be tested if an extension of time were granted and the matter were to proceed. Ms Toner has a prima facie case, to which the Company has foreshadowed an apparent defence. I do not consider the merits of the case to tell for or against an extension of time and consider the merits a neutral consideration.

Conclusion

[27] I have considered the submissions and evidence put to me and the matters I am required to take into account under s. 394(3). I am satisfied that there are exceptional circumstances. The most persuasive factor in the circumstances of this case is the fact that Ms Toner has provided an acceptable and reasonable explanation for the delay in lodging the Application. The Application was filed out of time because of an error made by her legal representative in their attempt to lodge it by email. Because I am satisfied that there are exceptional circumstances, and the object stated at s. 381(2) of the Act is to ensure that a “fair go all round” is accorded, I will extend the time for Ms Toner to lodge her Application to 30 September 2021.

[28] An order to this effect will be issued with this decision.

[29] Further directions will be issued for the filing and serving of materials.

COMMISSIONER

Hearing details:

Decision on papers

Final written submissions:

Ms Indya Toner – 12 October 2021, 29 October 2021

State Management Solutions Pty Ltd – 21 October 2021

Printed by authority of the Commonwealth Government Printer

<PR735646>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, [29]-[31].

 5   Fair Work Commission, ‘Service Interruption for Scheduled Maintenance’, 8 September 2021, News Update, <   Fair Work Commission, ‘Online Lodgment Service’, last updated on 15 September 2021, <   Applicant’s Outline of Submissions filed 12 October 2021, annexure G.

 8   Applicant’s Outline of Submissions filed 12 October 2021, paragraph 16.

 9   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59, [35].