Steven John Cauberg v Specialized Australia Pty Ltd

[2022] FWC 653

[2022] FWC 653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Steven John Cauberg
v

Specialized Australia Pty Ltd

(U2022/3492)

COMMISSIONER BISSETT MELBOURNE, 25 MARCH 2022

Application for an unfair dismissal remedy

1. On 21 March 2022 the Commission received payment of a lodgement fee in relation to an application for unfair dismissal of Mr John Cauberg. 21 March 2021 was (on its face) the 21^st day after Mr Cauberg’s dismissal and hence the final day within which he could make an application within the timeframe specified by the Fair Work Act 2009 (FW Act).

1. On 22 March Mr Cauberg emailed the Commission to confirm his application had been received as he had not received an email confirmation as he had expected. Mr Cauberg attached a copy of his application form that he understood had been lodged with his payment of 21 March 2021

1. Mr Cauberg had attempted to make his application and had (successfully) paid the filing fee using the Commission’s on-line lodgement system (OLS). Due to a technical issue with the OLS the fee was paid successfully but there was an error with the completed application form which was caught in a “pending” location within the Commission’s OLS.

1. The Commission, with some technical assistance, has been able to access the completed application form from the ‘pending’ folder and has been able to confirm that what was in the pending folder was a completed application in the same form as that emailed by Mr Cauberg to the Commission on 22 March 2022.

1. I am satisfied that I should, and I do, waive the irregularity in the manner in which the application was made to the Commission pursuant to s.596(b) of the FW Act. The irregularity, in this case, was the separation of the application form from the fee payment system. I am therefore satisfied that the application of Mr Cauberg was filed with the Commission on 21 March 2022 and that date should be recorded as the date the application was made.

1. In most cases such an issue will not result in an application arriving more than 21 days after an application has been made – if such an issue was discovered within 21 days the separation of the two steps of the application process would not be an issue as to the validity of the application made. The issue arises in this case only because the application and payment were attempted in the evening on the 21^st day after the dismissal took effect. The problem was then not identified until after the 21^st day.

1. I would further observe that, given the circumstances outlined above, if necessary, I would grant an extension of time within which the application for unfair dismissal could be made were it necessary to do so.

COMMISSIONER

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