Ms Kelly Topham v Greencross Limited T/A Greencross Vets
[2015] FWC 1831
•8 MAY 2015
| [2015] FWC 1831 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Kelly Topham
v
Greencross Limited T/A Greencross Vets
(C2015/265)
COMMISSIONER SPENCER | BRISBANE, 8 MAY 2015 |
Application to deal with contraventions involving dismissal - extension of time - electronic filing system - 32 seconds past prescribed time period.
[1] On 10 February 2015, Ms Kelly Topham (the Applicant) made an application to the Fair Work Commission (the FWC/Commission) to deal with a General Protections dispute wherein the Applicant alleged she had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (the Act).
[2] The Applicant stated that she had been dismissed from her role as Practice Manager from Greencross Limited T/A Greencross Vets (the Employer/Respondent) on 19 January 2015. The Respondent stated that she had been dismissed for allegedly misappropriating funds from the Respondent’s business. The misappropriation was discovered during her absence from the workplace due to illness and the Applicant had been dismissed. The Applicant stated the allegations had never been put to her, nor had she had any opportunity to respond.
[3] The Respondent submitted that the application was lodged 22 days after the termination date, given that the letter of termination, attached to the application, is dated 19 January 2015 and the dismissal was effective that day. The Respondent objected to the application as it was lodged out of time. The application was required as per s.366(1)(a) of the Act to be lodged within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).
[4] Directions were set for the provision of material in relation to the jurisdictional objection. The Applicant agreed to the matter being determined on the papers, and there was no objection by the Respondent in regards to this course.
[5] On 8 April 2015, the Commission provided further material to the parties in respect of electronic lodgement records provided by the FWC Registry, in relation to the filing of the application. Further Directions were issued which sought further submissions in light of the material provided.
[6] The Applicant was represented by Ms Sarah Lock, of Workplace Law Specialists, and the Respondent was represented by Mr Andrew Cardell-Ree of Thomson Geer.
[7] Not all of the evidence and submissions provided are referred to in this decision; however, all have been considered in making the determination.
Relevant legislation
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The time and date of lodgement
[8] In relation to the process for electronic lodgement, Rule 15 of the Fair Work Commission Rules 2013 (the Rules), states that:
“15 Lodging documents using the Commission's electronic lodgment facilities
(1) A document that is required or permitted to be lodged with the Commission under these Rules may be lodged using the Commission’s electronic lodgment facilities in accordance with the instructions provided by the Commission for the use of those facilities.
Note: Web-based forms and eFiling facilities are available at (2) If a document lodged in accordance with this rule is an application commencing a matter: (a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and (emphasis and underline added)
(b) the application is not taken to have been lodged until the acknowledgment of lodgment mentioned in paragraph (a) has been sent; and
(c) once the acknowledgment of lodgment mentioned in paragraph (a) has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission.”
[9] Reference was made in the submissions of the Respondent to Rule 14(4) of the Fair Work Commission Rules 2013. This Rule is applicable to applications made by way of email (while the current application was made by electronic lodgement); however, Rule 14(4) is in similar terms to Rule 15(2) above.
[10] After the filing of the parties’ initial submissions, the Fair Work Commission Registry provided electronic records, pertaining to this application. This information was provided to the parties, in a further Direction, as follows:
“Sequence of events
It is important to note that daylight savings was in effect at the time that this application was filed. Because the application was filed in Queensland, but the Commission’s IT systems are based in Melbourne, there is a need to indentify the appropriate times. Accordingly, the times referred to in this email will be marked with either AEST (Queensland, Australian Eastern Standard Time +10) or DST ( AEDST, Victoria, Daylight Savings Time +11) where appropriate.
The records were sought from the Fair Work Commission Registry (the Registry). These electronic records demonstrate the following sequence of events in relation to the lodgement by Ms Sarah Lock of Workplace Law Specialists (the Applicant’s representative).
Login Event Records
The Registry’s electronic records shows that the Applicant’s representative first logged in to the Commission’s Electronic Filing system (eFiling) at 12:55:14am DST on 10 February 2015 (11:55:14pm AEST on 9 February 2015). The electronic record shows that the Applicant’s representative logged in for a second time at 12:59:32am DST on 10 February 2015 (11:59:32pm AEST on 9 February 2015). The login events logs are shown in the screenshot below and are in DST. The Registry have advised that the logs are factual and entry driven, i.e. they are recorded at the exact moment a particular event takes place.
Submit Event Records
The Registry’s electronic record demonstrates that the application was “submitted” by the Applicant’s representative at 01:00:32 am DST on 10 February 2015 (12:00:32 am AEST on 10 February 2015). The submit event records are shown in the screenshot below and are in DST.
The acknowledgement email
The Applicant’s representative provided an acknowledgement email that was automatically sent to her at 12:29am AEST on 10 February 2015. The Registry have advised that this email was sent in accordance with rule 15(2)(a) of the Fair Work Commission Rules 2013 (the Rules), which states that:
(a) the General Manager must send an acknowledgment of lodgement, by email, to the person lodging the document;
Rule 15(2)(c) states that:
(c) once the acknowledgment of lodgement mentioned in paragraph (a) has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission.
The “submit event” referred to above was recorded in the Registry’s logs, at 12:00:32am AEST.
Payment of the Application
The Registry has also provided information that payment was made at 1:05:05am on 10 February 2015 DST (12:05:05am on 10 February 2015).”
[11] Further Directions were set to allow the parties to provide additional submissions on this. It is acknowledged that the Applicant’s initial submissions were filed late, however, given the further opportunity of both parties to respond, no particular prejudice has been taken into account in relation to this.
[12] The records demonstrated that Ms Sarah Lock of Workplace Law Specialists (the Applicant’s representative), logged in to the Commission’s Electronic Filing system (eFiling) at 11:55:14pm AEST and then logged in again at 11.59:32pm AEST on 9 February 2015. The Registry’s electronic record demonstrated that the application was “submitted”, and received by the Registry at 12:00:32am AEST on 10 February 2015.
[13] The application was filed electronically from Queensland; the Registry’s eFiling system receiving the application is based in Melbourne. To account for the then daylight savings, the times referred to have been adjusted to reflect this, where appropriate.
[14] The Registry also provided information that payment was made at 12:05:05am AEST on 10 February 2015.
[15] The Applicant’s representative provided a copy of the acknowledgement email (referred to in Rule 15(2)(a)) sent by the FWC Registry. The acknowledgement email is electronically time stamped as received at 12:29am AEST on 10 February 2015.
[16] In accordance with Rule 15(2)(c) of the Rules, the application is taken to have been lodged at the time the Commission first received the application electronically, at 12:00:32am AEST on 10 February 2015. The application, on these lodgement facts, was lodged outside of the requisite timeframe (on the 22nd day after the dismissal), as it was lodged 32 seconds past the prescribed period for filing had expired. The Respondent objected to the jurisdiction on the basis that the application, on these facts, was lodged out of time.
Summary of submissions and consideration
[17] The criteria in s.366(2) are addressed as follows:
s.366(2)(a) - the reason for the delay
[18] In the Applicant’s preliminary submissions, it was contended that the application was not lodged late and that it was lodged on 9 February 2015 at approximately 11.55pm (AEST). The Applicant’s representative was responsible for the lodging of the application; however, she stated she had only received instructions from the Applicant the day before.
[19] The Applicant’s representative provided a written statement to the Commission setting out that she had lodged the application prior to Midnight on 9 February 2015 and that she had received an automatic receipt from the Commission at 12:29am on 10 February 2015. The Applicant’s representative also attached a copy of the report from her ‘Gmail’ account, evidencing when the receipt of filing of the application was sent from the Commission. The email document receipt from ‘[email protected]” to the Applicant’s representative indicates receipt at the date and time of Tuesday 10 February 2015 01:29:29 AEDST. As the timestamp reflects Daylight Savings Time, it is equivalent to 12:29:29 AEST.
[20] After the Commission’s electronic filing records (which show that the Application was lodged on 10 February 2015) were provided to the Applicant, the Applicant’s representative further submitted that she did log into the eFiling portal to electronically file the application on 9 February 2015. The Applicant’s representative submitted that this demonstrated the intention of having the application filed within the 21 day period.
[21] The Applicant’s representative submitted that it would be prejudicial to the Applicant, if her application was not accepted, for the substantial merits of her application would not be heard by the FWC, particularly given the serious allegations of theft made by the Respondent. The Applicant further submitted that the period of time that passed from the expiration of the 21 day limit to the actual lodgement time is a mere 32 seconds. The Applicant conceded that, while the records indicate the application was filed late, the Applicant’s representative submitted that she had done all things necessary to ensure that the requirements for lodgement were met, given the exceptional circumstances, as set out below.
[22] The Applicant’s representative submitted that the Applicant was also unable to provide her with any meaningful instructions until 8 February 2015, as she was admitted into the Belmont Private Hospital for treatment for depression and anxiety, related to the issues that had occurred in the workplace. The Applicant further submitted that a related WorkCover claim is presently on foot in relation to that matter, and provided a signed written statement attesting to this claim. Neither the Applicant’s statement nor submissions make reference to the date the Applicant was admitted to Belmont Hospital, or the date on which the WorkCover application was filed.
[23] The Respondent submitted that the Applicant made the application on Tuesday 10 February 2015 and it was therefore filed one day outside of the 21 day timeframe for lodgement. The Respondent further submitted that the Applicant had not provided any evidence, which might support a finding that the application was filed any earlier than Tuesday 10 February 2015, and in light of the evidentiary onus that the Applicant bears, such a finding would be unsound.
[24] The Respondent submitted that the Applicant did not identify when, during that 21 day time frame, she was admitted to hospital. It was also submitted by the Respondent that the Applicant’s representative stated that she was retained by the Applicant, but, critically, does not identify when she was first retained or first received instructions from the Applicant. The Respondent further submitted that the Commission ought to reject the Applicant’s assertion that she was incapacitated throughout the 21 day period in question, to the extent that she was incapable of providing instructions at any time during that period, and hence that there was a proper reason for the delay, because that assertion was demonstrably untrue.
[25] The Respondent submitted that the Applicant had not provided, to the Commission, any evidence corroborating her claim that she was so incapacitated throughout the entirety of the timeframe, that she was unable to instruct her representative. The Respondent further submitted that the Applicant was not hospitalised on Thursday 22 January 2015, Friday 23 January 2015 or 7 February 2015 as there are records that indicate, they submitted, that she allegedly had visited various stores, that are related entities of the Respondent, and had used her staff discount vouchers, to purchase goods. The Respondent provided a copy of a receipt for each occasion as evidence, of this occurring.
[26] Primarily, the reasoning for the delay relates to the final activity in eFiling the application, as a result of the late instructions. No evidence was provided, relating to the events during the 21 days, that demonstrated the Applicant’s hospital admission, medication or contacting the representative.
s.366(2)(b) - any action taken by the person to dispute the dismissal
[27] It was submitted that, as the Applicant was heavily medicated and in hospital, it was impossible for her representative to take any instructions from her, as she had no capacity to give instructions. The Applicant was only available on 8 February 2015 to discuss the application, leaving very little time, the Applicant’s representative stated, to prepare the application.
[28] The Applicant contended that, while the application was filed outside of the required timeframe, it was only late by a mere 32 seconds. The Applicant contended her representative had every intention of lodging the application within the required time, which is demonstrated by the login events shown in the Registry’s electronic records.
[29] The Respondent maintained that the Applicant took no action, during the 21 time period, to inform the Respondent that she disputed her dismissal.
[30] The Respondent also contended that, during the statutory timeframe, the Applicant was able to dispute the Respondent’s actions in deducting monies from her final wages to settle her outstanding staff account, and indeed, demanded the payment of $700 by 4:00pm on 30 January 2015 well before the expiry of the statutory timeframe to make the application. This demonstrated, the Respondent submitted, that the Applicant was able to contest her dismissal, or any other aspect of her employment, during the 21 day time limit.
[31] The Applicant, on the material, had not taken any action prior to instructing her representative on 8 February 2015, to activate the claim during the 21 day period.
s.366(2)(c) - prejudice to the employer (including prejudice caused by the delay)
[32] The Applicant submitted that there had not been any prejudice to the Respondent, as the application was lodged within time.
[33] In reply, the Respondent did not raise claims that it would be prejudiced by the delay, but maintained that this is not a determinative question of whether an extension of time should be granted.
[34] The application was only late by a very small margin, however, the Applicant did not notify the Respondent of the application, any time prior; (only disputing her final payment).
s.366(2)(d) - the merits of the application
[35] The Applicant submitted that it is important that her application and the merits of the s.365 application, are heard by the Commission, as serious allegations of theft have been made against her. Further, the Applicant stated she had not had any real opportunity to provide her version of events to the Respondent and no real procedural fairness had been offered to her.
[36] The Respondent submitted that it had established a very strong prima facie case of gross misconduct, which rendered the application without merit and/or any reasonable prospect of success.
[37] In its submissions, the Respondent detailed instances, varying in severity, of alleged misconduct by the Applicant. These allegations have not yet been substantiated and it is therefore not necessary to summarise each instance of the alleged misconduct in the jurisdictional decision.
[38] For the aforementioned reasons, weight has not been attributed to this criterion.
s.366(2)(e) - fairness as between the person and other persons in a like position
[39] Whilst no other particular employees were referred to, the Respondent generally submitted that, in light of its submissions, it would be unfair to other Applicants in similar circumstances, to allow the extension of time in circumstances where appropriate reasoning has not been provided to justify the delay by the Applicant.
[40] This criterion was not specifically addressed by the Applicant. Given there were no employees in a like position, this criterion has not been given weight.
Exceptional circumstances
[41] The Act requires the Commission to be satisfied that there are exceptional circumstances, in order to extend the period of time for a person to make an application to deal with contraventions involving dismissal. The term ‘exceptional circumstances’ has been dealt with in s.394 extension of time applications. These authorities are relevant to the current test in General Protections matters. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 1 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)2 as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 3
[42] In addition, the Full Bench in Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers 4 characterised exceptional circumstances as:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 5
[43] The relevant period of “delay”, in considering the reason for the delay, according to Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank (Shaw) 6 is the period beyond the prescribed period for filing.
[44] In the current case the Representative lodged the application late, after receiving late instructions in the matter. A Full Bench of the Commission in Robinson v Interstate Transport Pty Ltd 7 considered representative error as follows:
“The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case16 in the context of the exercise of a discretion to extend time under s 170CE(8) of the Workplace Relations Act 1996 (Cth) (the WR Act). It was followed by a Full Bench in Davidson’s Case17 in relation to s 170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case18 found that the approach remained apposite to the exercise of the discretion in s 366(2) of the Act.19 We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s 366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s 366(2), subject to consideration of the statutory considerations in ss 366(2)(b) to (e) of the Act. The approach in Clark’s Case was summarised in Davidson’s Case as follows:
In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.” 8
Consideration
[45] In the current circumstances, the Applicant provided instruction to the Representative on 8 February 2015. The 21 day time limit expired on 9 February 2015. The Applicant’s Representative had a responsibility to file the application within the required time frame.
[46] Based on the Registry’s records, the application was lodged via the Commission’s eFiling system at 12:00:32am AEST on 10 February, and consequently, was out of time by 32 seconds, falling onto the 22nd day past the termination of the Applicant’s employment.
[47] It is recognised that the Applicant’s representative had an intention to file the application within the requisite time as per the log-ins to the system.
[48] The Applicant provided instruction to her representative within the time for filing, on 8 February 2015. The fact that the Applicant only provided these instructions to her representative at this time does not constitute the majority of the reason for the delay of 32 seconds. Applications are also able to be lodged by telephone or by email. The Applicant provided instructions the day before the required timeframe expired and her representative then had control over the making of the application. The reason for the delay is attributable to representative error. The Applicant’s representative was, or should have been aware of the 21 day limit, and still undertook to file the application on behalf of the Applicant. It is evident that the Applicant’s representative intended to file this application within time, but did not do so, and this was not due to the conduct of the Applicant. Other applicants may provide instructions to their representatives or seek advice at a late stage in the 21 day period, and on taking those instructions, it is expected the application will be filed within time.
[49] In deciding whether or not an out of time application should be accepted, the remaining factors under s.366(2) have been considered. On the evidence, the first step the Applicant took to dispute her dismissal was on 8 February 2015. This was within the time for filing. It is considered that the lapse of 32 seconds causing an application to fall into the next day is not regular, routine, or normally encountered, it is an ‘exceptional circumstance’. It is not considered that a delay of 32 seconds causes prejudice to the Respondent.
[50] With respect to the merits of the application, there are serious allegations of theft raised by the Respondent, to which the Applicant stated she has not been afforded procedural fairness, or an opportunity to present her view to the Respondent. I have not attributed weight to this criterion as it is considered that a determination of the merits of the application, considering the seriousness of the allegations, is premature at this stage without the hearing of sworn evidence.
[51] In the circumstances, where the electronic records demonstrated that the lodgement of the application was 32 seconds late, it would be harsh to subject the Applicant to the prejudice of having her application forever rejected, on the basis of the representative’s conduct in filing so close to the cut off date, for the application.
[52] It is recognised that timeframes are provided to allow certainty, for both parties, and that for that reason, the time limits should be upheld. However, in examining the electronic records and the endeavours of the Applicant's representative to log in to file the application, I am not satisfied that the application for an extension of time should be rejected, for such a minor amount of time, 32 seconds.
[53] I note Senior Deputy President O’Callaghan in Antony Smith v AgriExchange Pty ltd T/A Vitor 9 has assessed the e-filing system as follows:
“...I have previously found the FWC lodgement system gives rise to some issues of unreliability in this respect and believe that as a consequence, the benefit of any doubt should go to Mr Smith....”
[54] I am not suggesting that general irregularities exist within the eFiling system, that give rise to uncertainties with the filing time. This matter is unusual given the 32 seconds falls into the following day, making the application just out of time. I am prepared on this basis to consider the benefit of the doubt should go to the Applicant and to extend the time limit.
Conclusion
[55] For all of the aforementioned reasons, taking into account all of the considerations in s.366(2), the circumstances of the late filing in this matter are exceptional, (including representative error), and justify exercising the discretion to extend time for the delay in making the application.
[56] Pursuant to s.366(1)(b) of the Act, the time for filing of the application made under s.365 is extended to allow the application to be accepted within the time to enliven the jurisdiction.
[57] I Order accordingly. The matter will now be listed for conference.
COMMISSIONER
1 Wheelan C, [2009] FWA 1638, [30] and [31].
2 Lawler VP, [2010] FWA 1394.
3 In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.
4 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251
5 Ibid at [5].
6 [2015] FWCFB 287 at [12]
7 [2011] FWAFB 2728
8 Ibid at [24]
9 [2015] FWC 1287
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