Mr Raphael Wind v Ray Fry Investments Pty Ltd T/A Norship

[2019] FWC 3414

[2019] FWC 3414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Raphael Wind
v
Ray Fry Investments Pty Ltd T/A Norship
(C2019/1584)

DEPUTY PRESIDENT MANSINI MELBOURNE, 24 MAY 2019

[1] This decision concerns a general protections application involving dismissal made in a form or manner that was not in strict compliance with the Commission’s procedural rules.

[2] I have determined it appropriate to waive the irregularity in the form in which the application was made pursuant to s.586(b) of the Fair Work Act (Cth) (Act), and otherwise dispense with strict compliance with the Fair Work Rules (Rules) pursuant to Rule 6. The reasons for that decision follow.

Context

[3] Mr Wind (the Applicant) was dismissed from his role as Boiler Maker for Norship (the Respondent) on 13 February 2019.

[4] On 17 February 2019, the Applicant emailed the Commission at [email protected]. The subject of the email was “Lodge a form F8”. The cover email said “I would like [to] file form 8 please” and attached a .zip folder containing a number of compressed electronic files. The evidence is that the application, in the approved form F8, was among them. The Applicant compressed the attachments in a .zip folder out of concern that the files would otherwise be too large and not received.

[5] On 18 February 2019, the Commission’s Client Services function replied from [email protected], in which it was stated that the Applicant’s email “contains attachments in a format not supported by the Commission’s information management systems or has security protections rendering it unable to be opened”. The 18 February 2019 email clearly stated:

“As the attachments cannot be opened they have not been taken to have been lodged. If the attachments contain an application then this application has not been taken to have been lodged.”

[6] The Applicant maintains, in various submissions and in evidence, that he did not receive the 18 February 2019 email. His explanation is that it may have been caught in his “junk” filter, which is periodically and automatically deleted.

[7] The Applicant gave evidence that, on 12 March 2019, he telephoned the Commission to enquire about the progress of his application.

[8] Later on 12 March 2019, the Applicant sent another email to [email protected], subject “RE: Lodge a form F8”, forwarding his original email of 17 February 2019 with a cover note as follows:

“Please find attached in PDF form lodgement to lodge a form 8 which was previously sent in zip and not able to be opened.”

[9] On 19 March 2019, the Commission wrote to the Respondent serving the application, noting it appeared to have been lodged outside of the statutory timeframe and seeking consent to attempt conciliation prior to determination of any out of time issue.

[10] Also on 19 March 2019, the Respondent’s CEO replied “I did not have visibility of this matter”. The Respondent did not consent to attempt conciliation and objected to the Commission extending the time for lodgement.

[11] Accordingly, the extension of time issue proceeded to hearing on 9 May 2019. Following the hearing, the Respondent was invited to address the Commission as to any reason(s) why the discretion at s.586(b) ought not be exercised in the circumstances.

Was the application validly made, within the statutory timeframe?

[12] A general protections application involving dismissal must be filed within 21 days of the date the dismissal took effect and in accordance with the Commission’s procedural rules. 1

[13] The application was well within the 21 day timeframe if the email of 17 February 2019 constituted a valid application. If not, and there was no valid application until 12 March 2019, then the application was made 6 days after the statutory timeframe. 2

[14] To comply with the Commission’s procedural rules a general protections application involving dismissal, if lodged by email, is required:

a) to be made in the approved form (Rule 8);

b) to be lodged by email to an approved email address (Rules 13(2)(c), 14(1)-(2));

c) to attach any documents (other than statutory declarations) in Word, RTF or PDF format or another format approved by the General Manager and without any security restrictions (Rule 14(3)(a));

d) to include a cover email with certain information such as the Applicant’s email address for communication with the Commission and a statement that the document attached is an application commencing a matter (Rule 14(3)(b)); and

e) to be subject of an acknowledgement of lodgement, by email, without which it is not “taken to have been lodged” (Rule 14(4)).

[15] The 17 February 2019 email complied with the procedural rules, other than to the extent that the electronic format of the attachments was not consistent with Rule 14(3)(a)(ii). For this reason, a formal acknowledgement of lodgement was not sent by the Commission. It follows that the 17 February 2019 email, which did not strictly comply with the Rules, was not an application made in accordance with s.585 of the Act and is not “taken to have been lodged” under the Rules.

Should a waiver be granted?

[16] The Act does not evince a purpose to render an application automatically invalid and of no effect. 3 Rather, the Commission is conferred with a discretionary power to waive any irregularity in the form or manner in which an application is made to the Commission under s.586(b) of the Act. The Commission may also dispense with compliance with any provision of the Rules (either before or after the occasion for compliance arises) under Rule 6.

[17] Statutory provisions like s.586(b), although not in identical terms, have been directed towards ameliorating the effect of a failure to comply with procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects. 4 That principle remains apt for s.586(b), having regard to the statutory limitations on the exercise of the Commission’s powers and functions under the Act.5

[18] By email of 14 May 2019, the Respondent stated it “strongly opposed” the exercise of the Commission’s discretion under s.586(b) because the 17 February 2019 email was not lodged pursuant to s.585 and the procedural rules. 6 Its reasons were brief, in summary:

a) If granted, a waiver under s.586(b) would “change the lodgement date” which may amount to the correction of an error of substance and would create an “injustice” to the Respondent;

b) It must be considered that the Applicant received the email of 18 February 2019, when regard is had to the Electronic Transactions Act 1999 (Cth);

c) The Applicant’s evidence about why the attachments needed to be sent in a .zip folder and that he did not receive the 18 February 2019 email is not credible;

d) Ignorance as to lodgement requirements and timeframes is not an acceptable excuse for delay;

e) There are no exceptional circumstances for the delay; and

f) The Applicant’s claim has no reasonable chance of success based on its merits.

[19] Having regard to all of the matters I am required to take into account, and discretionary considerations in other decisions applying s.586(b), I consider this an appropriate case to exercise the discretion at s.586(b). 7

[20] The Applicant acted to pursue his claim without delay. He took steps to make this application, using the correct application form, correct email address and cover note, within just 4 days of his dismissal. The extent of the irregularity is in the form of the attachments to the email, sent in the wrong electronic format in an effort to ensure receipt.

[21] The Respondent sought to place weight on the Commission’s 18 February 2019 email and whether it was, or should be taken to have been, received. The Applicant swore that he did not receive that email and was not aware that the attachments were unable to be opened until after the statutory timeframe had expired. After proactively following up with the Commission by telephone the Applicant acted promptly to resend the attachments, in the correct electronic format. I am not persuaded that the Applicant’s credibility is lacking and the evidence does not support that conclusion. To the contrary I find it unlikely, given all of the Applicant’s actions, that he would have waited until 12 March 2019 to resend the attachments had he received the 18 February 2019 email.

[22] There is no issue that the Applicant was dismissed from his employment, he alleges in breach of the general protections provisions of the Act. Subject to the present objection, it is sufficient that the Commission has before it an application alleging a dismissal in contravention of Part 3-1 of the Act to engage jurisdiction to deal with the claim. 8

[23] The merits of the substantive claim are yet to be tested, and the disputed factual issues will need to be fully explored. However, various elements of the contraventions required to maintain a general protections claim are not in dispute. There is no dispute that an adverse action in the form of dismissal was taken by the Respondent, or that the Applicant exercised a workplace right in making a complaint about a serious safety incident. The reason(s) for the dismissal are in dispute. In these circumstances, and at this early stage, I am not prepared to conclude that the application is without merit.

[24] Whilst the Respondent suggested it would suffer an injustice if a waiver is granted, it did not provide any detail in support. The Commission’s file reflects that the Respondent was on notice of the application since at least 19 March 2019. However: There has been no suggestion that the Respondent is prejudiced by any delay; in the context of the Applicant’s alternative position (the extension of time request), the Respondent did not assert it would suffer any prejudice if more time was granted to file the application on 12 March 2019; and it is the Respondent who elected to have its jurisdictional objection heard rather than attempt conciliation in the first instance. I am not satisfied that any prejudice to the Respondent has been demonstrated as to weigh against an exercise of my discretion in this case.

[25] This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.366. 9

Conclusion

[26] The requirement that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind under s.585 reflects the Parliament’s intention to promote the orderly and efficient administration of the Commission’s functions. The Act recognises that there are some cases where an irregularity in the form or manner in which an application is made should be waived, at the discretion of a Commission Member.

[27] For the above reasons, pursuant to s.586(b) and Rule 6, I waive the irregularity of the form in which the Applicant made his 17 February 2019 application for a general protections dispute involving dismissal and dispense with strict compliance with the procedural rules for that purpose.

[28] The application was filed within the statutory timeframe and the issue of an extension of time does not arise.

[29] The Commission is required to deal with the application pursuant to s.368 of the Act and the matter will now be referred for conciliation.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR708401>

Appearances:

R. Wind on his own behalf

M. McMahon of HR Dynamics for the Respondent

Hearing details:

2019

Melbourne, Cairns and Darwin (by video).

9 May.

 1   In accordance with s.366 and s.585 of the Act, respectively.

 2 Not including the date the dismissal took effect, per s.36(1) of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 (see s.40A of the Act).

 3   See Mihajlovic Lifeline Macarthur [2014] FWCFB 1070.

 4   See Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, and the cases cited therein.

 5   Ibid, and see ss.577 and 578 of the Act for scope of the Commission’s powers and functions.

 6   The Respondent alleged the non – compliance to be with Rules 13(2)(c), 14(3)(a)(ii), 14(3)(b)(i), 14(4)(a)-(b).

 7   See, for example, Mihajlovic v Lifeline Macarthur[2014] FWC 1871; O’Brien Glass Industries Limited v CFMEU[2012] FWAFB 7300.

 8   Ibid and see also Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321.

 9   Within the particular meaning of s.366; see, for example, Stogiannidisv Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.