FWA 2496
Fair Work Act 2009
Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging
MELBOURNE, 27 APRIL 2011
Termination of employment - general protections claim - extension of time.
 An application under s.365 of the Fair Work Act 2009 (the Act) alleging a contravention of the General Protections provisions of the Act and which involved the dismissal of Geoffrey Paterson (the Applicant) was filed on 4 February 2011. The Applicant was dismissed from his employment on 27 August 2010.
 The application is prima facie out of time. An extension of time in which to file an application has been sought by the applicant.
 An extension of time is granted so as to enable the Applicant to file an application in this matter on 4 February 2011.
 An application made under s.365 of the Act must in accordance with s.366(1) of the Act be made within 60 days after the dismissal took effect or within such further period as FWA allows. Section 366(2) provides that an extension of time beyond the 60 days specified in s.366(1)(a) may only be allowed “if FWA is satisfied that there are exceptional circumstances” and in considering whether or not there are exceptional circumstances FWA must take into account the 5 criteria set out in s.366(2). I have taken into account each of these 5 matters in reaching my decision.
 The critical reason for the delay concerned a simple filing error made by the barrister briefed to prepare and file the application in this matter but in circumstances where the simple error was not readily identifiable by either the barrister or FWA who received the application through the e-filing system.
 On 25 October 2010, within 60 days of the date of dismissal, the barrister acting for the Applicant filed by way of the e-filing system an application under s.365 on behalf of the applicant. The FWA e-filing system generated a “Result” response to the barrister advising of receipt of the documents by e-filing. The barrister, his instructing solicitor and the Applicant relied on this “Result” response and assumed that the s.365 application was properly made within time and that in due course a Notice of Listing would be received.
 The barrister on receipt of the “Result” immediately emailed to the Respondent a copy of the Applicant’s Form F8 s.365 application and the document which was attached to the application.
 In late January 2011 the solicitor for the Applicant contacted FWA to enquire about the application being listed and was advised that no application under s.365 in the name of the Applicant had in fact been filed with FWA.
 A second application was then filed on 4 February 2011.
 The evidence before me in this matter discloses the actions taken by the Applicant, his solicitor and his barrister. In addition I have made enquiries with the staff of FWA in relation to how the e-filing system works and as to how the application filed on 25 October 2010 was handled.
 The barrister acting for the Applicant on instructions from the Applicant’s solicitor prepared the correct Form F8 for a s.365 application and had the letter of termination as a document to be attached to the Form F8. The draft Form F8 was approved by the instructing solicitor and was to be filed by the barrister. Approximately a week or so earlier the barrister had prepared another Form F8 on instructions from the same solicitor but for a different client.
 On 25 October 2010 when the barrister received instructions to file the application on behalf of the Applicant in this matter the Barrister went online to the FWA web site and uploaded to the web site as an e-filing the wrong Form F8 but with the letter of termination for the Applicant. The FWA web site generated the “Result” response which simply acknowledges that something has been received.
 At the time of e-filing it is not possible for the person who e-files to see what FWA has received. Nor is it possible to see what has been e-filed as the action of uploading a document onto the FWA web site does not leave a readily identifiable trail on the computer of the person filing the document. E-filing is not the same as sending an email where there is record of what has been emailed.
 In this matter as the wrong F8 was e-filed on 25 October 2010 FWA did not treat the e-filing as generating a valid application. As the ‘wrong’ Form F8 had also been filed only a week or so earlier there was already an active file for this particular applicant and respondent. On that basis FWA treated the second filing of the same Form F8 from the same barrister as being an error and no further action was taken by FWA on the application filed on 25 October 2010.
 Whilst I have no doubt that it was possible for the barrister’s error to have been identified earlier than it was and corrected much sooner than it was I am of the very strong view that it was not practicable for this to have occurred.
 What occurred in this instance on 25 October 2010 constitutes an exceptional circumstance for the purpose of s.366(2).
 The Respondent made a submission, supported by a statutory declaration from the accountant to the Respondent, “that the Extension Application should be dismissed on the basis that there is no merit to the Applicant’s General Protections Application”. One of the matters that I must take into account under s.322(2) is “the merits of the application”. In this matter there is merit in both the position of the Applicant and the position of the Respondent.
 Taking into account all the materials before me I do not consider that a general protections court application in this matter would not have a reasonable prospect of success. Whilst this is the language of s.370 I am of the view that in taking into account “the merits of the application” for the purposes of s.366(2) that I should consider the merits in light of the prospect of success if the matter goes to court. In a general protections court application the Respondent bears a reverse onus of proof. (S.361) In a general protections court application in this matter the Applicant need only establish that one of the reasons for the dismissal was the adverse action alleged against the Respondent. Even where the Respondent establishes that there were other reasons for the dismissal this will not of itself defeat the application.
 Having taken into account the merits of the application I find that they are neutral in relation to the application for an extension of time.
 The application for an extension of time is granted. There has already been a conference of the parties and I am satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. Therefore I will issue a certificate as required by s.369.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR508735>