Maja Graorkovska v High Quality Property Pty Ltd T/A HQ Marketing

[2015] FWC 8279

[2015] FWC 8279

FAIR WORK COMMISSION

DECISION & REASONS

Fair Work Act 2009
s.394—Unfair dismissal

Maja Graorkovska
v
High Quality Property Pty Ltd T/A HQ Marketing
(U2015/12359)

COMMISSIONER RYAN MELBOURNE, 30 NOVEMBER 2015

Application for relief from unfair dismissal - application not out of time.

[1] The Applicant made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) using the efiling process available to parties.

[2] The application generated an automatic response to the Applicant from the Commission at [email protected].

[3] The Applicant’s efiling was timed at 23:52 (11.52 pm) on 19 October 2015. The automatic response email from the Commission to the Applicant was timed at 12.22 am (00:22) on 20 October 2015.

[4] The time of the automatic reply was taken by the Commission as constituting the time the Applicant made her application to the Commission.

[5] The Applicant alleged that she was dismissed from her employment on 28 September 2015. The 21 day time limit specified by s.394(2)(a) ended at midnight on 19 October 2015. By accepting that the Applicant had made her application at 12.22 am (00:22) on 20 October 2015 the Commission treated the application as having been filed out of time.

[6] The Commission advised the Applicant and the Respondent in writing on 26 October 2015 that the Commission considered the application to be out of time and advised the Applicant and the Respondent that the matter would be referred to a member of the Commission to determine whether to allow an extension of time for the lodgement of the application.

[7] A Notice of Listing and Directions were issued by the Commission on 6 November 2015 notifying the parties that the matter was listed for “Extension of Time Conference/Hearing” on 4 December 2015 and directing the parties to file and serve their respective cases on specified dates in November 2015.

[8] The file in this matter was allocated to me to deal with at the same time that the Respondent complied with the directions and well after the Applicant had complied with directions.

[9] Section 396 requires that certain matters must be decided before the Commission can consider the merits of an unfair dismissal application. The first matter that must be decided by the Commission under s.396(a) is “whether the application was made within the period required in subsection 394(2)”.

[10] The hearing listed for 4 December 2015 and the directions issued by the Commission on 6 November 2015 all proceed from an presumption that the application in this matter was filed outside the 21 day time limit specified by s.394(2)(a) and that the application could only be within time if the Commission granted an extension of time pursuant to s.394(2)(b).

[11] The presumption that the application in this matter was outside the time limit set by s.394(2)(a) is misplaced.

[12] The time and date of the automatic email reply from [email protected] in response to efiled documents will generally provide enough information to determine whether an application has been filed within the time limits specified by the Act. However in cases such as the present the date and time of the automatic email reply from [email protected] in response to the application filed by the Applicant does not accurately reflect the time the application was made to the Commission.

[13] In the present matter the automatic email reply from [email protected] in response to application from the Applicant clearly identifies that the original efiling time was 23:52
(11.52 pm) on 19 October 2015.

[14] The application in this matter was made by the Applicant within the 21 day period required by s.394(2)(a) of the Act.

[15] There is no need for a hearing to consider an extension of time under s.394(2)(b). The hearing listed for 4 December 2015 is cancelled.

[16] The Respondent has identified two other objections to the application in this matter. Firstly, the Respondent objects that the Applicant has not been employed for the minimum period of employment. Secondly, the Respondent objects to the application on the basis that the Applicant resigned her employment and was not dismissed. The application will be subject to further proceedings in accordance with directions which will be issued by the Commission in due course

COMMISSIONER

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