Ms Cassie Elderfield v v/Line Corporation

[2020] FWC 3238

[2020] FWC 3238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Cassie Elderfield
v
V/Line Corporation
(U2019/14694)

COMMISSIONER CIRKOVIC MELBOURNE, 19 JUNE 2020

Application for an unfair dismissal remedy – whether to extend time for lodging the application – whether to exercise discretion to amend, correct or waive irregularity in application or document under section 586.

[1] On 3 December 2019, Ms Cassie Elderfield, the Applicant, was dismissed from her employment with V/Line Corporation, the Respondent.

[2] The Respondent objected to the application on the basis that it was made out of time and that there was an absence of exceptional circumstances.

[3] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[4] Written materials were filed by the parties and the matter was heard before me on 27 March 2020. Pursuant to section 596 of the Act, the Applicant was granted permission to be represented.

[5] At the hearing it became apparent that the Applicant was seeking that I exercise my discretion under section 586 of the Act to allow a correction to the material filed on 23 December 2019 (the Original Application) and that the Respondent had inadequately addressed that aspect of the submission in its material. The Respondent accepts that that if the Commission were to exercise its discretion under section 586 such that the original application was taken to be made on 23 December 2019, it would have been made within the 21-day time frame prescribed by section 394 of the Act. 3

[6] I granted the Respondent leave to file additional material with respect to the section 586 submissions. Further submissions were filed by the Respondent on 3 April 2020, in which the Respondent confirmed its objection to the Applicant’s application to correct the error in the material filed on 23 December. The Respondent also sought the dismissal of the Original Application, pursuant to section 587(1)(a) of the Act, on the grounds that it was not made in accordance with section 585 of the Act.

[7] This decision concerns the Applicant’s application to correct the Original Application, pursuant to section 586, the Respondent’s application that the Original Application be dismissed pursuant to section 587(1)(a) and the Respondent’s objection that the application on 30 December 2019 was made outside the statutory time requirement in section 394(2) of the Act.

[8] I deal first with the section 586 and section 587 (1) (a) applications referred to above.

[9] The Applicant provided a chronology of events which is uncontested. 4 It details as follows:

“03 Dec 2019 – Date of the Termination

23 Dec 2019 (8:09 pm)-Unfair Dismissal application titled “Unfair Dismissal - V/LINE Corporation” was sent via e-mail address: [email protected]

23 Dec 2019 (8:10 pm)-Received auto email message from [email protected]

24 Dec 2019 (12:19 pm) – An email message sent to [email protected]

sent stating that evidence was sent via Aust Express Post # 605 39 865227090

…

30 Dec 2019 (11:59 pm) – An email was received from Melbourne Registry stating “The material that you have provided does not constitute a valid application under the Fair Work Act 2009. ...... Should you wish to lodge an Application you should urgently contact the Commission or provide a completed copy of the application form you wish to lodge”.

…

30 Dec 2019 (12:15 pm) – An email reply was sent to Melbourne Registry/FWC

30 Dec 2019 (12:16 pm) – An Auto email message received from [email protected]

30 Dec 2019 (1:11 pm) – An email sent to Melbourne Registry with the completed F2 application form to rectify the errorand to comply with the FWC requirements.

…

Dec 2019 (1:12 pm) – An auto email message received from [email protected]

30 Dec 2019 (3.31 pm)– An email received from Melbourne Registry stating:

•  “Your initiating application received electronically by the Fair Work Commission is taken to have been lodged in accordance with the Fair Work Commission Rules 2013 on 30 December 2019” (sic) (emphasis retained)

Respondent’s Submissions

[10] As stated above at paragraph [6], the Respondent submits that the Original Application was not validly made and that the Commission ought exercise its discretion, pursuant to s.587, to dismiss the Original Application.

 [11]  The Respondent does not appear to dispute that the Commission is empowered to amend, correct or waive irregularities in applications and concedes that section 585 is a “procedural requirement rather than a requirement that goes to an issue of the Commission’s jurisdiction”.  5

[12] The Respondent submits that, in the absence of any evidence beyond a failure to file the appropriate documentation of a “well informed and advised applicant”, 6 the Commission ought to dismiss the Original Application. The Respondent points to the representation by the Australian Rail, Tram and Bus Industry Union (the ARTBU) of the Applicant “throughout her employment” and “during all meetings relating to disciplinary action against her undertaken by V/Line”.7

Applicant’s submissions

[13] The Applicant submitted that:

•  The Original Application was “not late, but merely defective or irregular”; 8

•  She was not professionally advised at any time between her dismissal and the filing of the Original Application; 9

•  The power to dismiss an application under section 587 has been found by the Commission to be one that should be “exercised cautiously”; 10

•  The statutory frameworks of the Act and legal principles weigh heavily against the exercise of the Commission’s power to dismiss the Original Application for a single instance of “mere formal irregularity” and that these same principles weigh in favour of exercising the discretion under section 586 of the Act; 11

•  The fact that the Applicant described her correspondence with the Commission on 23 December 2019 as a “Unfair Dismissal application”, used forms from the Commission’s website relating to unfair dismissal, and asked the Commission for a response and further guidance on paying the filling fee support the conclusion that a bone fide attempt to lodge an unfair dismissal application was made; 12

•  The Commission would have been open on the day the Original Application was lodged; 13

•  The information that is required to be provided to complete a Form F2, was included in or easily inferred from the material provided to the Commission on 23 December 2019, but for the representative details and was “substantially in accordance with the approved form” thereby satisfying rule 8(5) of the Fair Work Commission Rules 2013 (Cth) (the Rules);  14 and

•  The potential for injustice favours granting the Applicant’s application. 15

Statutory Provisions:

[14] The relevant sections of the Act for me to consider are as follows:

“FAIR WORK ACT 2009 - SECT 577

Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b)  is quick, informal and avoids unnecessary technicalities; and

(c)  is open and transparent; and

(d)  promotes harmonious and cooperative workplace relations.

…

FAIR WORK ACT 2009 - SECT 578

Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c)  the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

FAIR WORK ACT 2009 - SECT 585

Applications in accordance with procedural rules

An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.

Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).

Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.

FAIR WORK ACT 2009 - SECT 586

Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

FAIR WORK ACT 2009 - SECT 587

Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…”

[15] The relevant sections of the Rules are as follows:

“8 Approved forms

(1) The President may approve forms for these Rules.

(2) If the President approves a form for a particular purpose, then subject to these Rules, the approved form must be used for the purpose.

(3) If there is no form approved for a particular purpose, approved form F1—Application (No specific form) must be used.

(4) The President must ensure that approved forms are publicly available.

(5) If these Rules require that an approved form be used, it is sufficient compliance if a document is substantially in accordance with the approved form.”

Consideration

Should the Original Application be dismissed?

[16] It is uncontroversial that section 587 of the Act allows the Commission to dismiss applications under the section.

[17] As stated earlier, the Respondent contends that it is appropriate that I dismiss the Application pursuant to section 587 of the Act.

[18] It is not in dispute that the material filed by the Applicant on 23 December 2019 was defective and not in the form prescribed by the Rules. It is also not in dispute that the Applicant filed a Form F2 in the form prescribed by the Rules on the 30 December 2019.

[19] I have considered the authorities referred to by the parties and am satisfied that the power to dismiss a substantive application is one that should be exercised “cautiously”. 16

[20] I note that the Applicant filed a witness statement dated 23 December 2019 detailing, amongst other things, her personal circumstances including the state of her mental health prior to, at the time of and subsequent to the making of the Original Application. The evidence before me as to the Applicant’s mental health is limited and as such, I am unable to make a finding as to if, and how the Applicant’s mental health impacted her when preparing the Original Application.

[21] The Respondent has submitted that the Applicant, being a member of the ARTBU as well as being represented by the ARTBU during her disciplinary process, had access to “competent and professional advice” in relation to the courses of action available under the Act. 17 The Applicant denies that she was professionally advised at any time between her dismissal and the filing of the Original Application.18 There is insufficient material before me to make a meaningful finding as to the Applicant’s history of representation by the ARTBU.

[22] There is no evidence before me that the Applicant obtained professional advice in preparing the Original Application. Further, the fact that the Applicant may have “had access to competent and professional advice” does not, in my view, seriously advance the Respondent’s proposition as to the exercise of discretion pursuant to s.587.

[23] Having regard to the above matters and the material before me, I reject the Respondents’ application. In my view, in the circumstances before me, dismissing the Original Application would be an overly formal and technical exercise of the Commission’s power.

Should the Original Application be amended?

[24] The parties relied on a number of authorities in support of their respective positions including the decisions of the Full Bench in Hambridge 19 and Mihaljovic20 which I have taken into account in coming to my decision.

[25] Examining the documents that make up the Original Application, it is apparent the Original Application takes the form of an outline of argument, a witness statement and a list of documents. Section 586 of the Act permits a “correction”, “amendment” or waiving of an “irregularity” in relation to an “application, or other document relating to a matter before the FWC”. It cannot be said that the Applicant filed an incomplete application or an application in the wrong form, as was the case in the matters cited above. On the basis of the material before me, I am of the view that it is inappropriate to amend or correct the Original Application.

[26] In coming to my decision, I am satisfied that the Applicant made a bona fide attempt to commence proceedings. However, I believe that is insufficient to ground the application being sought by the Applicant under section 586.

[27] In the context of this matter, I am not persuaded to amend the Original Application under section 586 of the Act.

[28] I now need to consider whether to accept the Applicant’s application out of time in accordance with the regime under section 394(3) of the Act.

Matters to be taken into account pursuant to section 394(3)

Legislative scheme

[29] Subsection 394(2) of the Act provides that an application under s.394 must be made within 21 days after the dismissal took effect:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

[30] In order for the Applicant’s unfair dismissal application to proceed, it is necessary for the Applicant to obtain an extension of time under section 394(3) to make the application. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[31] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 21 where the Full Bench said:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

[32] As stated earlier, in deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in section 394(3) above. I will deal with each of those matters separately.

(a) the reason for the delay;

[33] The Act does not specify what reason for delay might tell in favor of granting an extension however decisions of the Commission have referred to an acceptable 22 or a reasonable explanation.23 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, a Full Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favor, however all of the circumstances must be considered.24 The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.

[34] The Applicant believed she lodged her Application on 23 December 2019. There is no contest that had the application been lodged that day it would not be out of time. But as discussed above, she did not do so. The Applicant submits that she:

•  believed she had made a valid application on 23 December 2019, having received an acknowledgement email from the Commission; 25

•  was advised on 30 December 2019 that her application was defective; 26 and

•  acted almost immediately to file a compliant application. 27

[35] The Respondent submitted that “the only grounds we advance…in relation to 394(3) is that there are no exceptional circumstances in respect of the delay”. 28 The Respondent referred me to the decision of McCarthy DP in Robertson v Zeugma Electrical and Communications Services Pty Ltd,29which I have regard to in coming to my decision.

[36] I note that the 21-day limit prescribed by the Act allowed the Applicant to file until 24 December 2019. 30 The Applicant filed the Original Application at 8:09pm on 23 December 2019 (within the prescribed time limit). Then the Applicant received an email from the Commission at 8:10pm on 23 December 2019 acknowledging receipt of the Original Application. On 24 December 2019 at 12:19pm, the Applicant sent a further email to the Commission (also within the prescribed time limit) attaching evidence of documents that had been posted to the Commission. At 11:59am on 30 December 2019, the Commission informed the Applicant that the Original Application was defective. At 1:11pm that day, the Applicant filed the Amended Application.

[37] I accept that the Applicant submitted, what she believed to be a valid application on 23 December 2019, within the time prescribed by the legislation. Further, having received a confirmation receipt from the Commission at 8:10pm on 23 December 2019 (within the prescribed time limit) and having made further contact with the Commission on 24 December 2019 (also within the prescribed time limit), the Applicant held a reasonable belief that she commenced her application within the time limit. Upon being notified on 30 December 2019 that her application was defective, the Applicant acted promptly to remedy the situation.

[38] For completeness, I note that the Respondent submits that the Christmas holiday is a predictable and known event on the calendar and does not constitute exceptional circumstances. 31 The Applicant does not advance the Christmas period as a reason for delay, beyond the delay in receiving notification from the Commission on 30 December 2019 that the original application was incomplete and the assertion that had she been advised by the Commission on 23 or 24 December 2109 that her Original Application was defective, she would have been in a position to rectify the error within time for filing. In coming to my conclusion, I have not had regard to the delay caused by the Christmas period as a reason for delay.

[39] On the basis of the above, I am satisfied that a reasonable explanation for the delay exists. This weighs in favor of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[40] It is undisputed that the Applicant received notification that her dismissal would take effect on 3 December 2019. She had the full 21 days to lodge her Application. In this matter, I consider this factor to be a neutral consideration.

(c) any action taken by the person to dispute the dismissal;

[41] Action taken by an employee to contest a dismissal other than lodging an unfair dismissal application may favor the granting of an extension of time. 32

[42] There is no evidence that the Applicant took any steps prior to 23 December 2019 to dispute her dismissal. The Respondent does not specifically address this factor.

[43] In this matter, I consider this factor to be a neutral consideration.

(d) prejudice to the employer (including prejudice caused by the delay);

[44] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. Some decisions of the Commission view the absence of prejudice to the employer as a factor weighing in favour of granting an extension of time. In my view, in this case at least, it is a neutral factor. However, if the absence of prejudice should be properly be treated as telling in favour of an extension of time, I would attribute it little weight in the consideration of whether there are exceptional circumstances in the present case.

(e) the merits of the application;

[45] The Commission notes that for the purpose of determining whether to grant an extension of time to the Applicant to file his application it “should not embark on a detailed consideration of the substantive case.” 33

[46] The Applicant is challenging her dismissal on the grounds of harshness. The Respondent submits that the dismissal was valid and justified.

[47] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 34 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application.35 I have not done so.

[48] Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

(f) fairness as between the person and other persons in a similar position.

[49] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am unaware of any relevant matter. I therefore consider this to be a neutral factor.

Conclusion

[50] Having considered all of the factors set out in s 394(3), I am satisfied that the requisite exceptional circumstances exist. There is a credible and reasonable explanation for the delay in filing the application. In the circumstances, I am satisfied, having regard to all of the matters, that on balance there are exceptional circumstances in this case warranting granting the Applicant an extension of time to lodge her application. Consequently I have decided to exercise my discretion and grant the Applicant an extension of time to make his application to 30 December 2019.

[51] An order to this effect will be issued with this decision.

[52] Accordingly, the matter will now be referred for further directions so that the merits of the Applicant’s unfair dismissal application can be heard and determined.

COMMISSIONER

Appearances:

Mr J. O’Hagan of JobWatch for the Applicant

Mr H. Hilliar for the Respondent

Hearing details:

27 March 2020

Printed by authority of the Commonwealth Government Printer

<PR720354>

 1   Section 394(2)(a) of the Act.

 2   Section 394(3) of the Act.

 3   Transcript PN158 – PN163.

 4 Respondent’s Submissions at [2]. Chronology located in Applicant’s outline of argument: objections at 1(e).

 5 Respondent’s Submissions at [12].

 6 Respondent’s Submissions at [18].

 7   Respondent’s Submissions at [15(b)].

 8   Transcript PN57.

 9   Applicant’s Reply Submissions at [5] – [6]; Transcript PN177 – PN194.

 10   Applicant’s Reply Submissions at [12] citing [2019] FWC 609 at [27] – [28].

 11   Applicant’s Reply Submissions at [14], [16].

 12   Applicant’s Reply Submissions at [20]; Transcript PN80.

 13   Transcript PN74.

 14   Applicant’s Reply Submissions at [26] – [27].

 15   Applicant’s Reply Submissions at [41] – [43].

 16   Summers at [27] – [28] citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA; (1964) 112 CLR 125 at [8].

 17 Respondent’s Submissions at [15].

 18 Applicant’s Reply Submissions at [6].

 19   [2017] FWCFB 2811.

 20   [2014] FWCFB 1070.

 21   [2011] FWAFB 975

 22   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9].

 23   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64

 24   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 25   Transcript PN114; Applicant’s Reply Submissions at [39(a)(i)] – [39(a)(ii)].

 26   Transcript PN114; Applicant’s Reply Submissions at [39(a)(iii)].

 27   Transcript PN114.

 28   Transcript PN114.

 29   [2010] FWA 4525 at [13].

 30   The parties appear to agree that this date would be within time. See Transcript PN61, PN161

 31   [2010] FWA 5515.

 32   Rabiee v the Trustee for Doncaster European Unit Trust t/a Doncaster Volkswagen[2019] FWC 8367 at [25]

 33   Bradford Corunna v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore[2016] FWC 5239 [29] – [30] citing Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]. See also Steve Sinclair v BlueScope Distribution Pty Ltd t/a BlueScope Steel[2015] FWC 5849 at [22], [25].

 34   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 35   Bradford Corunna v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore[2016] FWC 5239 [29] – [30] citing Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]. See also Steve Sinclair v BlueScope Distribution Pty Ltd t/a BlueScope Steel[2015] FWC 5849 at [22], [25].