Michelle Cohen v Quad Services Pty Ltd

[2017] FWC 1099

[2017] FWC 1099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Cohen
v
Quad Services Pty Ltd
(U2016/13902)

COMMISSIONER MCKENNA SYDNEY, 24 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] The applicant in this matter, Michelle Cohen, was dismissed on 24 August 2016. The applicant understood that she had electronically lodged an application for an unfair dismissal remedy on 5 September 2016. The following may be reconstructed from the materials in the file.

[2] On 16 November 2016, the applicant made a telephone enquiry to staff of the Fair Work Commission (Commission) about the application, and was informed there was there was no record of the lodgment. Moreover, there was no record of any payment of the lodgment fee. Commission staff advised the applicant to resubmit the application and to check whether the lodgment fee had been processed. The applicant separately checked her bank account statement and there was no record of payment.

[3] On 18 November 2016, the applicant forwarded to the Registry a copy of the original application. It showed a lodgment date of “5/09/2016”, a lodgment time of “12.00AM AEST” in “NSW”, and a “Lodgment ref: 6740”. The Commission’s database shows the applicant subsequently successfully paid a lodgment fee on 22 November 2016.

[4] On 25 November 2016, Workplace Advisory Group filed and served a notice of representative commencing to act for the respondent, Quad Services Pty Ltd, and an employer’s response. The employer’s response indicated an objection to the application on the basis it was lodged out of time. With a reservation of rights by the respondent in relation to the out of time issue, a conciliation by telephone was conducted by a Commission conciliator on 14 December 2016. On 20 December 2016, the Commission conciliator was informed the matter had not resolved. As the matter did not settle, it was then treated as an application requiring determination of extension of time. The matter was initially listed before Drake SDP on 24 January 2017 and then allocated to me on 25 January 2017 for conciliation.

[5] I initially listed the matter on 3 February 2017. Settlement discussions ensued that day. While the substantive application has not settled, and the applicant is seeking her own further advice, it emerged in discussions in the initial proceedings (and was confirmed in subsequent proceedings on 23 February 2017), that the respondent did not press the objection originally made in the employer’s response. Mr M Diamond of Workplace Advisory Group relevantly indicated that the respondent did not press any objection to the application for reasons of it being out of time, based on what was indicated as to lodgment details shown on the application form.

Consideration

[6] It is unclear why there was no record of the lodgment of the application on 5 September 2016. Regardless, the applicant apparently would not have had cause to consider that her electronic lodgment of the application had not been successful, given the lodgment details and lodgment reference that were generated in connection with the lodgment or attempted lodgment. The applicant was apparently also not aware that the lodgment fee had not been processed around the time of the initial lodgement or attempted lodgment, until Commission staff asked her to check her bank records.

[7] It is possible that it may be open to me correct or amend the date of lodgment of the application pursuant to s.586 of the Act to reflect a date of lodgment of 5 September 2016.

[8] Given the uncertainty around whether the application was successfully lodged through the Commission’s electronic portal and given the application fee was not then (subsequently) effected until November 2016 when the applicant effectively resubmitted the application, it appears it may be more appropriate to formally deal with a consideration of the relevant provisions in s.394 of the Act. In that regard, I have also considered the recent decision in Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763.

The reason for the delay

[9] If this application was lodged out of time, the reason for the delay was because the applicant had a reasonable basis to consider that she had successfully lodged the application, within time, on 5 September 2016, and was unaware that the lodgment fee had not been processed.

Whether the person first became aware of the dismissal after it had taken effect

[10] The applicant became aware of the dismissal on 24 August 2016 (and acted within time to lodge or attempt to lodge an application on 5 September 2016).

Any action taken by the person to dispute the dismissal

[11] The applicant disputed the dismissal by lodging or attempting to lodge the application, within time, on 5 September 2016.

Prejudice to the employer (including prejudice caused by the delay)

[12] As to any issues concerning prejudice to the employer, it may be noted that the respondent’s representative squarely submitted that although an objection was raised initially in the employer’s response, that objection was either withdrawn or not pressed given what was on the face of the application form showing lodgment details.

The merits of the application/fairness as between the person and other persons in a similar position

[13] Questions concerning the merits of the application and fairness as between the applicant and other persons in a similar position were not the subject of any consideration given the particular circumstances here arising. I treat these matters as neutral, and I again note the submissions for the respondent concerning out-of-time issues.

[14] Taking the foregoing matters into account, I am satisfied there are exceptional circumstances which favour an extension of time to a date of lodgment of 18 November 2016. An order in this regard issues with these reasons.

[15] The file will now be referred for allocation for arbitration concerning the substantive matter. In so referring the file, I note there has been a settlement proposal, in relation to which the applicant is seeking her own advice. I would encourage the parties to continue to explore whether the matter may be settled albeit the matter is now being referred for arbitration.

COMMISSIONER

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