Michael David Tighe v The Trustee for the Redding Family Trust T/A Valley Air Conditioning

[2022] FWC 2579

[2022] FWC 2579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael David Tighe
v

The Trustee for the Redding Family Trust T/A Valley Air Conditioning

(U2022/9255)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 26 SEPTEMBER 2022

Application for unfair dismissal remedy – extension of time – application within time – no extension required

1. Michael David Tighe (Mr Tighe or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to a dismissal by The Trustee for the Redding Family Trust T/A Valley Air Conditioning (VAC, the respondent or the employer) on 16 August 2022.

1. Mr Tighe’s application is dated 4 September 2022 but the version the subject of these proceedings was received by the Commission by email some ten days later on 14 September 2022.

1. The 14 September 2022 application is notionally eight days outside the statutory 21-day period for making unfair dismissal claims.

1. The matter was allocated to me to determine if an extension of time was required and, if so, whether time should be extended.

1. I listed a directions hearing on the extension of time issue for 26 September 2022. 

Facts

1. I make the following findings. 

1. Mr Tighe is a resident of Edgeworth, New South Wales. He was employed by VAC until dismissed on 16 August 2022.

1. On 4 September 2022, Mr Tighe sent five emails to the Commission. Two of the five emails were sent at 1.52pm that day. Unbeknownst to Commission staff, one of the two emails sent by Mr Tighe at 1:52pm, contained a link to his unfair dismissal application, amidst other attachments. The other stated that an application was attached, which was not the case.

1. On 14 September 2022, Mr Tighe telephoned the Commission to follow up on his application. During the call, Mr Tighe stated that he had lodged his application by email on 4 September 2022. In response, a staff member of the Commission advised Mr Tighe that the Commission had received five emails from him on 4 September 2022 but an unfair dismissal application form was not attached to any of the emails.

1. Immediately following this call, on the afternoon of 14 September 2022 Mr Tighe sent an email to the Commission re-attaching his unfair dismissal application together with supporting documentation.

1. On 16 September 2022, the Commission sent an email to the parties stating that Mr Tighe’s unfair dismissal application appeared to have been received eight days late.

1. On 18 September 2022 Mr Tighe wrote to the Commission explaining that he had attached an application to his 4 September 2022 emails.

1. Upon being allocated the matter on 20 September 2022, I caused Commission files to be re-checked to ascertain the contents of the 4 September 2022 emails.

1. On 21 September 2022 I directed my chambers to write to the parties in the following terms:

“Dear Parties

Please be advised that the Commission has located on its system the attached five emails from Mr Tighe dated 4 September 2022. One of the attached emails (at 1:52pm on 4 September) contains a link to Mr Tighe’s unfair dismissal application.

The attached emails are provided to the parties for reference at the hearing before Deputy President Anderson on Monday, 26 September 2022 at 3:15pm (ACST) (3.45pm AEST).

They have been brought to the attention of Deputy President Anderson who is required to determine if an extension of time for filing is required and, if so, whether an extension should be granted. That is the subject of next Monday’s directions hearing.

Deputy President’s Anderson’s provisional view is as follows:

·  these emails establish that Mr Tighe did in fact file by electronic means an unfair dismissal application on 4 September 2022 (with attachments), and that his emailed application was in fact received by the Commission on that date;

·  due to an administrative error by Commission staff, Mr Tighe was wrongly advised by the Commission on 5 September 2022 (by email) and on 14 September 2022 (by phone) that an application had not been attached to his 4 September 2022 emails, whereas in fact that had occurred;

·  the application attached to Mr Tighe’s email of 14 September 2022 appears to be a re-lodgement of the application that had been sent and received on 4 September 2022;

· if in fact Mr Tighe was dismissed with effect from 16 August 2022 as he alleges, his application filed on 4 September 2022 has been filed within 21 days as required by the Fair Work Act 2009 (Cth), and is within time, and able to proceed without requiring an extension of time.

The Respondent should consider the above emails in drafting its Response – Form F3, due this Friday 23 September 2022.

If, after hearing the parties on Monday 26 September 2022, the Deputy President affirms this provisional view, Mr Tighe’s application will be referred to conciliation, as ordinarily occurs with unfair dismissal matters lodged within time…”

1. On 22 September 2022 the employer filed a response to Mr Tighe’s unfair dismissal application. The employer opposes the application on merit but did not contend that the application was out of time.

1. During the hearing on 26 September 2022, both Mr Tighe and the employer agreed that the Commission’s provisional view was correct and that the application, having been filed within time, should proceed in the normal manner.

Consideration

1. Mr Tighe’s unfair dismissal application was filed electronically on 4 September 2022.

1. An administrative error occurred on the Commission’s part whereby Mr Tighe was mistakenly advised that his application had been filed late when in fact the late filing on 14 September 2022 was a re-filing of what was sent and received on 4 September 2022. The mistake appears to have arisen following two emails with identical text being sent by Mr Tighe at 1.52pm on 4 September 2022, one attaching an application (amidst other documents) and one not doing so.

1. Having been dismissed by VAC on 16 August 2022, Mr Tighe’s application has been filed within the 21-day period required by the FW Act for the making of unfair dismissal applications.

1. No extension of time is required.

1. The application will proceed to conciliation in the ordinary manner.

DEPUTY PRESIDENT

Appearances:

Mr M D Tighe with Ms L Tighe, on his own behalf

Mr B Streeter with Ms J Pascoe, of and on behalf of The Trustee for the Redding Family Trust T/A Valley Air Conditioning

Hearing details:

2022
Adelaide (by telephone)
26 September

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