Katherine Downes v Civil Mining & Construction Pty Ltd

[2018] FWC 2922

[2018] FWC 2922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Katherine Downes

v

Civil Mining & Construction Pty Ltd

(U2018/2536)

DEPUTY PRESIDENT DEAN SYDNEY, 25 MAY 2018

Application for relief from unfair dismissal - Application not filed in accordance with the Fair Work Commission Rules 2013 - Compliance waived with the Rules.

1. Ms Sarah Lock of Workplace Law Group made an application on behalf of Ms Katherine Downes pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal.

1. Ms Lock sent the application by email at 11.42pm Australian Eastern Standard Time on 9 March 2018 to [email protected], the email address of the Fair Work Commission’s unfair dismissal case management team (the CMT). Nine March 2018 was the last day on which the application could be filed within the 21 day statutory time limit.

1. The CMT is located in Melbourne. Ms Lock and her client are located in Brisbane.

1. At the time the application was sent by Ms Lock, there was a one hour time difference between Brisbane and Melbourne because of daylight savings. As a result, the application was received by the CMT at 12.43am Australian Eastern Daylight Time on 10 March 2018, outside the statutory 21 day time limit.

1. The email address that Ms Lock used for filing Ms Downes’ application is not an email address that is approved for the lodgement of documents. However, Rule 6 of the Fair Work Commission Rules 2013 (the Rules) provides that the “Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.”

1. On 13 March 2018, the CMT forwarded the email which contained Ms Downes’ application to an email address which was approved for lodgement of documents in accordance with Rule 14 of the Rules.

1. On 21 March 2018, Civil Mining & Construction Pty Ltd (CMC) filed a Form F3 (Employers Response) which raised a jurisdictional objection that the application was filed outside the statutory 21 day time limit.

1. The matter was listed for a jurisdiction hearing on 23 May 2018. Ms Downes was represented, with permission, by Ms Lock. CMC was represented by its Human Resources Manager, Mr Christopher Newitt.

1. At the hearing, both parties relied on their written submissions filed prior to the hearing. I have considered these submissions in coming to my decision.

1. Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules. Rule 14 provides:

“(1)     A document that is required or permitted to be lodged with the Commission under these Rules may be lodged by emailing the document to an email address approved by the General Manager for the lodgement of documents by email.

Note:   The email addresses approved for lodgement of documents are available at type="1">

As set out earlier, compliance with the Rules may be dispensed with under Rule 6.

1. Deputy President Gooley in Hines v Independence Australia Pty Ltd[1] said:

“The Commission is required to establish procedures that are quick, flexible and informal. The Commission has made rules for the filing of documents by email to a specific email address.  To treat an application that was filed in time but to another Commission email address as not filed until it was forwarded to the correct Commission email address would elevate form over substance and would be inflexible and unfair.”

1. I respectfully agree with this approach.

1. Had Ms Lock sent the application to an email address approved for the lodgement of documents (in this case being [email protected]) the application would have been made within time.

1. In the circumstances of this matter, I am satisfied that I should exercise my discretion and waive compliance with Rule 14 of the Rules. Ms Downes’ application will be taken to have been made when the application was sent by email on 9 March 2018. The application was therefore filed within 21 days from the date the dismissal took effect.

1. Accordingly, the application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

S Lock, for the applicant
C Newitt, on behalf of the respondent

Hearing details:

2018.
Sydney (By telephone):
May 23.

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[1] [2014] FWC 4295 at [8]

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