Sylvia Reilly v Blairlogie Living & Learning Inc

[2016] FWC 1331

[2016] FWC 1331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sylvia Reilly
v
Blairlogie Living & Learning Inc.
(U2015/12587)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MARCH 2016

Application for relief from unfair dismissal.

[1] Ms Sylvia Reilly alleged the termination of her employment by Blairlogie Living & Learning Inc (Blairlogie) on 14 October 2015 was unfair.

[2] On 3 November 2015, Ms Reilly filed a form F1 with the Commission and paid the filing fee. In response to question 1.1 on that form namely, what provisions of the Fair Work Act 2009 she was making her application under, she said: “unfair dismissal, dismissed while under work cover and discrimination against a person with a disability”. On the same day a voice message was left for Ms Reilly advising her that she had not filed a valid application and that she needed to file the correct application form.

[3] On 10 November 2015, Ms Reilly was advised in writing that she had not filed the correct form and she then filed the correct form on 30 November 2015.

[4] If Ms Reilly’s application lodged on 3 November 2015 was an unfair dismissal application then it was lodged within 21 days of the dismissal. If not, Ms Reilly’s application was not lodged within 21 days of the date of the dismissal.

[5] In the directions issued, the parties were put on notice that the question of whether Ms Reilly’s application was in fact lodged within time, albeit using the wrong form, would need to be determined. At the hearing I advised the parties that they needed to address me on why I should not exercise my powers under s.586 to waive the irregularity in the form or manner in which the application was made or to e to allow Ms Reilly to amend her application.

[6] At the commencement of the hearing Ms Reilly was not able to be contacted. I was satisfied that Ms Reilly had notice of the hearing/conference as she had contacted my chambers the preceding day and she had sent an email to my chambers the previous evening. The matter proceeded in her absence but she was able to join the hearing/conference during the hearing. She was provided with the opportunity to cross examine Blarilogie’s witness but advised that she did not wish to do so. Ms Reilly gave evidence and was cross-examined.

[7] I had granted permission to Blairlogie to be represented by a lawyer in Ms Reilly’s absence from the hearing. I accepted the submission that the issue of whether Ms Reilly’s application had in fact been lodged within time or whether I should waive the irregularity or permit an amendment involved some legal complexity and that permitting Blairlogie to be represented would enable the matter to dealt with more efficiently.

Did Reilly make an application within 21 days of the date of the dismissal?

[8] S.585 of the Act provides that an application must be in accordance with the procedural rules. S.586 provides the Commission with the power to waive any irregularity in the form or manner in which an application is made to the Commission or to allow a correction or an amendment on terms the Commission considers appropriate.

[9] It is clear that Ms Reilly’s application was not made in accordance with the procedural rules as she did not use the correct form.

[10] The Full Bench in Ioannou v Northern Belting Services Pty Ltd 1 discussed the powers available to the Commission under s.586.

“[13] The powers under s.586 were considered by a Full Bench of the Commission in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 as follows:

“[35] There is a long history in predecessor statutes to the Act of provisions which are equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to “allow the amendment, on such terms as it thinks fit, of any proceedings” and to “correct, amend or waive any error, defect or irregularity, whether in substance or in form”. In Re Coldham; Ex parte BLF the High Court gave these provisions, together with the power to “extend any prescribed time” in s.41(1)(m), a wide field of operation so as to give effect to the statutory intention that proceedings before the Commission be directed to the merits and that technicalities and legal forms should not be regarded. These provisions were reproduced in s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work Choices manifestation of the Workplace Relations Act removed the general power to extend time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects or irregularities was used in a wide variety of circumstances as to both procedural and substantive matters: see, for example, Re Union of Christmas Island Workers; Re The Association of Professional Engineers, Scientists and Managers, Australia; Re Perth Bus Certified Agreement; Caruana v STA Pty Ltd; Boom Logistics/Employee Naval Base Industrial Agreement 2004/2005 and CPSU v Port Adelaide Training and Development Centre Incorporated t/as PATDC Employment and Training.

[36] Section 586(b) may be narrower than the previous provisions referred to, in that the waiver power is confined to matters of “form or manner” rather than “substance or ... form”. There is surprisingly little authority, outside the State constitutional context, as to what types of matters are encompassed by “form or manner” or like expressions such as “manner and form”. However, in O’Connor v Kinniburgh the New Zealand Supreme Court held that a statutory power to make regulations concerning the “form and manner” in which a thing is to be done may include requirements as to when the thing may be done.

[37] In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations Commission of South Australia observed that provisions of the same type as s.586(b) are “directed towards ameliorating the effect of a variance or failure to comply with a 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”.”
(references omitted)
[14] In Mihajlovic, the Full Bench decided that the premature filing of an unfair dismissal application constituted an irregularity in the manner in which the application was made and was capable of waiver under s.586(b) of the Act.”

[11] In Djula v Centurion Transport Co. Pty Ltd  2 the Full Bench held that s.586 provided the Commission with the power to amend an application to change the name of the respondent.

[12] In this matter, Blairlogie relied upon the decision of Senior Deputy President O’Callaghan in Anita Sawyer v Employment Innovations 3 where he determined that the receipt of the form F2 was an essential element of an electronic lodgment.

[13] In that decision, Senior Deputy President O’Callaghan did not consider whether he should permit the amendment of the application. That is not surprising as no application had been filed. In that matter Ms Sawyer believed that she had uploaded an application form but she did not.

[14] Blairlogie relied on s.585 to submit that no application had been made because it was not made in accordance with the rules and therefore no amendment can be made. It submitted that s.586 may be used to amend a form F2 application that was incomplete or deficient. Here it was said if there is an application in the incorrect form, there is no power to waive any irregularity or permit any amendment.

[15] The facts in this matter are different to that considered by Senior Deputy President O’Callaghan. Ms Reilly lodged a form F1 within time and paid the filing fee. It is clear from the application form that Ms Reilly was making a claim that she had been unfairly dismissed.

[16] Blairlogie submitted that I should not waive the irregularity in Ms Reilly’s application. It submitted that Ms Reilly did not serve the form F1 on it. Consequently it was not aware of the application until the form F2 filed on 30 November 2015 was served by the Commission.

[17] The power to waive any irregularity in the form or manner in which any application is made is discretionary.

[18] This matter can be distinguished from that in Ioannou 4as Ms Reilly is not seeking to fundamentally change the kind of application she was making. Ms Reilly was always making an unfair dismissal application.

[19] I am prepared to exercise my discretion to waive the irregularity namely that Ms Reilly used the wrong form to lodge her unfair dismissal application.

[20] In making this decision I have had regard to the prejudice suffered by Blairlogie by Ms Reilly’s failure to file the correct form and her failure to serve the incorrect application on them. I have further had regard to the fact that Blairlogie is a relatively small not for profit organization. I have also had regard to the fact that Ms Reilly was immediately notified that she had lodged the incorrect form and that Ms Reilly did not take any steps to lodge her application until 30 November 2015.

[21] However, Ms Reilly is self-represented and she filed an application within time. Had she not used the wrong form her claim would have proceeded. The Commission is required to provide a fair go all round and despite the prejudice to Blairlogie I do not think precluding Ms Reilly from having her application heard would be fair.

[22] However I am very concerned about Ms Reilly’s repeated failure to comply with the directions of the Commission. I have already dismissed one s.399A application in this matter. Despite this Ms Reilly did not comply with the second set of directions issued by the Commission.

[23] Ms Reilly has relied upon her lack of knowledge and the stress caused by her dismissal to explain her conduct in this matter. While I accept that self-represented parties may find the processes difficult there is a significant amount of information on the Commission’s website to assist parties. While I accept that Ms Reilly may not have internet access at home she could use a local library to access the information provided. Self-represented parties are required to prosecute their claim. Self-represented parties are required to comply with directions issued by the Commission. If Ms Reilly fails to comply with future directions issued by the Commission she risks having her claim dismissed.

[24] This application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

Sheridan Landwehr for the Respondent

Anna Forsyth, Counsel for the Respondent

Hearing details:

2016:

Melbourne by telephone;

February 26.

 1   [2014] FWCFB 6660.

 2   [2015] FWCFB 2371.

 3   [2015] FWC 5000.

 4   Op Cit.

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