Wasim Muhammad v John Holland Group Pty Ltd
[2020] FWC 4362
•19 AUGUST 2020
| [2020] FWC 4362 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Wasim Muhammad
v
John Holland Group Pty Ltd; Ed Tenaglia
(C2020/1974)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 19 AUGUST 2020 |
Application to deal with contraventions involving dismissal – strict compliance with the Rules waived – application made in time.
[1] This decision concerns an application by Mr Wasim Muhammad under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal against John Holland Group Pty Ltd and Ed Tenaglia (Respondents) (Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
[2] It is uncontested that Mr Muhammad’s employment with John Holland Group Pty Ltd ended on 6 March 2020. The 21 day lodgement period therefore ended at midnight on 27 March 2020.
[3] On 2 July 2020, I issued directions for the parties to file materials. Materials were filed by Mr Muhammad in accordance with those directions. On 30 July 2020, the Respondents advised my chambers that they “neither object nor consent to the Applicant’s out of time application” and were “content for the out of time matter to be determined on the papers.” In light of this correspondence, my chambers wrote to Mr Muhammad’s legal representative, Harmers Workplace Lawyers (Harmers), seeking Mr Muhammad’s views as to the matter being determined on the papers. On 31 July 2020, Harmers advised that Mr Muhammad agreed to the matter being determined on the papers. Accordingly, the hearing was cancelled, and I advised the parties that a decision would be issued in due course.
[4] In light of the context of lodgement which I set out below, the advice of the Respondents that they neither object nor consent to the extension of time application, and in consideration of the materials filed by the Applicant on 16 July 2020, I have determined it appropriate to waive the irregularity in the manner in which the Application was made pursuant to section 586(b) of the Act, and otherwise dispense with strict compliance with the Fair Work Commission Rules 2013 (Rules) pursuant to Rule 6.
Context of lodgement
[5] At 5:01 pm on Friday, 27 March 2020, the final day on which the Application could be lodged within the statutory timeframe, Harmers sent an email to the email address of the Commission’s General Protections Team ([email protected]) attaching Mr Muhammad’s Form F8 Application and schedule for lodgement (Lodgement Email). 1 On 30 March 2020 at 8:37 am, being the following Monday, the Commission’s General Protections Team forwarded the Lodgement Email to the Commission’s Sydney Registry and, at that point, the application was taken to have been lodged.
[6] On 31 March 2020 the Canberra Registry of the Commission sent an email to Harmers providing the case number and stating that the Application “is taken to have been lodged in accordance with the Work Commission Rules 2013 on 30 March 2020.”
[7] On 2 April 2020 Harmers wrote to the General Protections Team disputing that the Application was lodged out of time. The Commission wrote in response to Harmers on the same date and advised that “Our records indicate that the lodgement email was sent out of hours on a Friday evening to the General Protections team, not to an accepted Registry lodgement address. It then reached an appropriate Registry email on Monday March 30th at 08:37 and this is taken to be when the matter was lodged.”
[8] By consent, the matter proceeded to conciliation conference before a staff conciliator on 18 June 2020 which did not resolve and accordingly the file was allocated to me to determine the out of time question.
Consideration
[9] The Application will have been made within the 21 day timeframe if the email of 27 March 2020 which was sent to the email address of the Commission’s General Protections Team constituted a valid application. If it does not, then the Application will be taken as lodged on 30 March 2020 and will therefore have been lodged 3 days out of time.
[10] To comply with the Commission’s procedural rules a general protections application involving dismissal, if lodged by email, is required to:
• be made in the approved form (Rule 8);
• be lodged by email to an approved email address (Rules 13(2)(c), 14(1)-(2));
• attach any documents (other than statutory declarations) in Word, RTF or PDF format or another format approved by the General Manager and without any security restrictions (Rule 14(3)(a));
• include a cover email with certain information such as the Applicant’s email address for communication with the Commission and a statement that the document attached is an application commencing a matter (Rule 14(3)(b)); and
• be subject of an acknowledgement of lodgement, by email, without which it is not “taken to have been lodged” (Rule 14(4)).
[11] The Lodgement Email complied with each of the above requirements other than that it was not lodged to an approved email address as is required under Rules 13(2)(c) and 14(1)-(2)).
[12] Rule 14(1) of the Rules relevantly provides as follows:
“14 Lodging documents by email
(1) A document that is required or permitted to be lodged with the Commission under these Rules may be lodged by emailing the document to an email address approved by the General Manager for the lodgment of documents by email.
Note: The email addresses approved for lodgement of documents are available at As identified in the note to Rule 14, the email addresses approved for lodgement of documents are available on the Fair Work Commission’s website. At the time of lodgement, these email addresses were, and remain, as follows:
[14] The email address of the Commission’s General Protections Team to which the Application was sent on 27 March 2020 is not one of the approved email addresses for the purposes of Rule 14 of the Rules. It follows that the Lodgement Email did not strictly comply with the Rules and consequently was not an application made in accordance with section 585 of the Act and is not “taken to have been lodged” under the Rules.
[15] Section 586(b) of the Act provides that the Commission may waive an irregularity in the form or manner in which an application is made to the Commission. Further, pursuant to Rule 6 the Commission may dispense with compliance with any provision of the Rules (either before or after the occasion for compliance arises).
[16] Statutory provisions such as section 586(b), although not in identical terms, have been directed towards ameliorating the effect of a failure to comply with 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. 2 That principle remains apt for section 586(b), having regard to the statutory limitations on the exercise of the Commission’s powers and functions under the Act.3
[17] Whilst not sent to an approved Commission email address, the Lodgement Email was sent to a valid Commission email address on 27 March 2020. Save for the email address it was sent to, the Lodgement Email otherwise complied with all other requirements for lodgement under the Rules. Until 31 March 2020, when the Commission sent an email to Harmers advising that the Application was taken to have been lodged on 30 March 2020, Harmers was of the belief that the Application had been validly lodged and accordingly advised Mr Muhammad at 5:14 pm on 27 March 2020 that the Application had been “filed with the Fair Work Commission today.” 4
[18] The Commission’s file does not indicate that the emailing of the Application to the General Protections Team caused any particular delay to the processing and serving of the Application.
[19] In the circumstances, having regard to all of the matters I am required to take into account, and the discretionary considerations in other decisions applying section 586(b), I consider this an appropriate case to exercise the discretion afforded under section 586(b). 5
Conclusion
[20] The requirement that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind under section 585 reflects the Parliament’s intention to promote the orderly and efficient administration of the Commission’s functions. The Act recognises that there are some cases where an irregularity in the form or manner in which an application is made should be waived, at the discretion of a Commission Member.
[21] For the above reasons, pursuant to section 586(b) and Rule 6, I waive the irregularity of the manner in which the Application was made and dispense with strict compliance with the procedural rules for that purpose.
[22] The application was filed within the statutory timeframe and the issue of an extension of time therefore does not arise.
[23] The Commission is required to deal with the application pursuant to section 368 of the Act and the matter will now be referred for further conciliation.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR721937>
1 Applicant’s outline of argument – extension of time at [1.5] and Annexure B
2 See Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, and the cases cited therein.
3 See Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, and the cases cited therein and see ss.577 and 578 of the Act for scope of the Commission’s powers and functions.
4 Applicant’s outline of argument – extension of time at [1.6] and Annexure C
5 See, for example, Mihajlovic v Lifeline Macarthur [2014] FWC 1871; O’Brien Glass Industries Limited v CFMEU [2012] FWAFB 7300.
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