Stephen Ross v Star Track Express Pty Ltd

[2020] FWC 6961

[2020] FWC 6961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Ross
v
Star Track Express Pty Ltd
(U2020/13200)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 DECEMBER 2020

Unfair dismissal application – incomplete application made within 21 days – payment waiver obtained later – no extension of time required – jurisdictional objection dismissed

[1] This decision concerns an application by Mr Stephen Ross for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009(Cth) (Act). Mr Ross’s employment with Star Track Express Pty Ltd (company) was terminated on 18 September 2020. The application was lodged on 5 October 2020 by the Transport Workers’ Union of Australia (TWU) on Mr Ross’s behalf (original application). Certain questions in the form F2 were left unanswered, and the application was not accompanied by payment of the prescribed fee. A fee waiver request was made on 20 October 2020 and granted administratively the same day. On 26 October 2020, the TWU lodged a revised application which answered the remaining questions (amended application).

[2] The company objects to Mr Ross’s application on the basis that his original application was incomplete and therefore defective and incapable of progressing until the amended application was filed, which was 39 days after the dismissal took effect, and 18 days outside of the 21-day period prescribed by s 394(2) of the Act. It says that unless the Commission grants Mr Ross an extension of time under s 394(3), his application must be dismissed, and that there are no ‘exceptional circumstances’ to warrant an extension of time.

[3] The company relies on s 585 of the Act, which states that an application “must be in accordance with the procedural rules (if any) relating to applications of that kind”, as well as rule 8 of the Fair Work Commission Rules 2013 (Rules), which states that where forms have been approved, they are required to be used, and that there will be sufficient compliance only if a document is substantially in accordance with the approved form (Rule 8(5)). The company says that the minimum filing requirements for an unfair dismissal application are that the form F2 be used, that the application substantially comply with the requirements of the F2 form itself, and that this document be filed within the required period.

[4] The original application did not provide answers to questions 1.1, 1.3 and 1.4, which ask the applicant to indicate the date on which the employment commenced, the date on which the employee was notified of the dismissal and the date on which the dismissal took effect. Further, no answer was given to question 3.1, which asks the applicant to state what reasons were given by the employer for the dismissal.

[5] On 5 October 2020, the TWU received an automated response from the Commission, stating that the application was taken to have been lodged in accordance with the Rules on 5 October 2020, and that the application had been assigned a matter number of U2020/13200. The same day, the registry sent to the TWU a letter stating that answers were required to the outstanding questions in the form F2, and that the application fee had to be paid, unless a waiver was requested. Also on 5 October 2020, the registry sent to the company a letter referring to the case number and advising that the Commission was currently awaiting further information from the applicant. The letter stated that the application ‘cannot be progressed at this time’ and that if the necessary information was not provided, the application might be dismissed.

[6] The company submits that it is clear from this correspondence that the Commission had determined that the original application did not meet the minimum filing requirements and was not a completed application, and that it was only after the amended application was submitted that the Commission listed the matter for a conciliation conference and informed the company of the requirement to lodge an F3 response. The company recognises that the original application is not invalid, and that the Commission can allow a correction or amendment to the application, or waive an irregularity, but submits that there are no good grounds to do so in the present case, and that the Commission should decline to exercise its discretion in this regard.

[7] In Shane Arch v Insurance Australia Group Services Pty Limited, 1a Full Bench of the Commission discussed the effect of non-compliance with s 585, and the Commission’s procedural powers to deal with any such application. The Full Bench said:

“[34] It is undoubtedly the case that Mr Arch did not file an application in the prescribed form on 22 May 2019. Section 585 of the FW Act requires that “An application must be in accordance with the procedural rules (if any) relating to applications of that kind.” But, as has been explained in a number of Full Bench decisions, non-compliance with s 585 does not invalidate an application because the FW Act confers discretionary procedural powers as to how to deal with such an application. First, immediately following s 585, s 586 provides:

…

[35] Second, s 587(1)(a) provides that the Commission may dismiss an application if it is not made in accordance with the FW Act. Thus, where a defective application is filed, it may be the subject of correction, waiver or dismissal. It may also be discontinued under s 588. But the FW Act does not disclose an intention to treat it as being entirely invalid and of no effect. The advice given by the Commission staff to Mr Arch from 22 May 2019 until 4 July 2019 (when he finally provided an application in proper form) was at all times consistent with this legal position.”

[8] Although the original application was incomplete, it was not invalid. Because it was incomplete, there remained a question about how the Commission would deal with that application. But the requirement in s 394(2), that an application be lodged within 21 days after the dismissal took effect, was met by the filing of that application. If an application contained no or very minimal information, it might be that one could not properly characterise it as an application at all. But that is not the case here. The F2 application filed by the TWU identified the applicant, the applicant’s representative, the respondent, and, importantly, why the applicant considered his dismissal to have been unfair, namely ‘because the alleged conduct did not occur and consequently there was no valid reason for termination’. The F2 also stated that the applicant sought an order for reinstatement, continuity of employment and lost pay. The original application contained the essence of Mr Ross’s claim. The questions left unanswered concerned matters about which the company was plainly aware, and which are evidently not controversial in this matter – the dates of the commencement of employment and of the dismissal, and the reasons given by the employer for the dismissal. Further, the ‘attached document’ that was omitted from the F2 was the applicant’s response to the letter of investigation, which the company must also have possessed. Whether there has been substantial compliance with the requirement to lodge a form F2 will depend on the circumstances. In the present case, I consider that the original application did substantially comply with the Rules and therefore does not require amendment.

[9] Had I concluded otherwise, I would have granted relief from the Rules, or allowed an amendment to the application under s 586, so as to accept the changes reflected in the amended application. There would be no prejudice to the company in these circumstances. The company contended that it did not understand the nature of Mr Ross’s claim, because he had not previously denied engaging in the conduct in question. If that is the case, it may be relevant to the strength of the claim, but it is not relevant to the question of whether the application substantially complied with the Rules. The F2 does not require a person to provide an outline of argument. Detailed contentions are submitted later, pursuant to directions of the Commission. The F2 is a simple document prescribed to elicit information relevant for the purposes of initiating a proceeding.

[10] In addition to the requirements of the Rules, it is necessary to have regard to s 395, which states that an unfair dismissal application ‘must be accompanied by any fee prescribed by the regulations’. The original application was not accompanied by the fee, nor was an application made at that time for a waiver of the fee. However, Regulation 3.07(7) states that, if the Commission is satisfied that the person making an application will suffer hardship if the person is required to pay the fee, no fee is payable for making the application. Because the waiver was subsequently granted, the requirements of the regulations were met. There was no fee that was required to be paid by Mr Ross. In any event, where a fee is paid or a waiver granted after an unfair dismissal application has been lodged, the Commission could exercise its discretion under s 586 to waive an irregularity. I would have done so, had it been necessary, because Mr Ross gave sworn evidence that he had asked the union to prepare and lodge the application on his behalf, and it would be fair and reasonable that he not be precluded from advancing his application, either because of the late attendance to the waiver request or the absence of answers to some of the less important questions in the F2.

[11] Similarly, had an extension of time been required, it would have been as a result of the actions of Mr Ross’s representative lodging the application outside of the 21-day period, and hence a case of representative error. I would have considered a case of representative error, in which the applicant has played no contributing role, to be an exceptional circumstance warranting the exercise of the Commission’s discretion to extend time. The company contended that Mr Ross took no steps to ensure that the application was completed and lodged on time. But in my view Mr Ross clearly placed the matter in the hands of his union and could reasonably expect the application to be properly prepared and lodged.

[12] However, there was no representative error. The TWU lodged the application within the 21-day period. It was a valid, if incomplete application. It substantially complied with the Rules. The application did not comply with s 395 at the time it was lodged, but it does so now, because a waiver was obtained as contemplated by the Regulations, and there is therefore no ‘fee’ that is required to accompany the application under s 395.

[13] The company’s jurisdictional objection to Mr Ross’s unfair dismissal application is dismissed. Mr Ross’s unfair dismissal application will shortly be programmed and listed for hearing.

DEPUTY PRESIDENT

Appearances:

J. Cooney for Mr Stephen Ross
J. Crook for Star Track Express Pty Ltd

Hearing details:

2020
Melbourne
21 December

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 1   [2020] FWCFB 601