DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Bradley
v
Derwent Valley Council
(U2019/3532)

Application under s.586 to amend an application for the Commission to deal with an unlawful termination dispute under s.773 so as to proceed as an application for an unfair dismissal remedy under s.394 – application granted.

[1] Mr John Bradley says he commenced employment with the Derwent Valley Council (DVC) on 27 July 1998 and that in 2018, he had a number of employment disputes with his employer. These, he says, resulted in him retaining the law firm Ogilvie Jennings in or around August 2018. Acting on Mr Bradley’s behalf was Mr Nicholas Edmondson from that firm.

[2] As things transpired, Mr Bradley’s employment was terminated by DVC, with termination taking effect on 21 December 2018. This was confirmed via a termination letter emailed to Mr Edmondson on the same day. Following receipt of the termination letter, Mr Edmondson sent Mr Bradley an email which stated:

“I advise that you have 21 days from today to file an application for unfair dismissal. I note that there is no extension of time that can be granted and the time limit includes the Christmas period.

If you intend to lodge an application I will need urgent instructions in the New Year. You must file an application by 11 January 2019.”

[3] Shortly after, Mr Edmondson received a reply from Mr Bradley’s support person, Mr Stephen Mackey stating, “John will be lodging a claim for unfair dismissal.”

[4] On Thursday 10 January 2019, Mr Edmondson received a draft copy of Mr Bradley’s unfair dismissal application, which Mr Edmondson perused and amended.

[5] On Friday 11 January 2019, Mr Edmondson telephoned Mr Bradley about his unfair dismissal application. A file note recording this conversation indicated that Mr Bradley had instructed Mr Edmondson to “just make sure [the] application is in”.

[6] Mr Edmondson said that having received this instruction, he directed his legal assistant, Ms Sandra White, to lodge an unfair dismissal application using the Fair Work Commission’s (the Commission) Online Lodgment Service (OLS) later that day. Ms White subsequently submitted an application (the Application) through the OLS using a Form F2 –Unfair dismissal application form (Form F2) and received a confirmation email at 4:54PM advising that the Application had been received. An attachment to the confirmation email specified the following “Lodgment details”:

“Lodgment details

Lodgment date: 11/01/2019

Lodgment time: 4:54 PM AEDT

State: TAS

Reference number: 65501

Matter classification

Category: Dismissal

Code: Dismissal

Type: s.773 – Application to deal with an unlawful termination dispute (Form F9)”

[7] The Application was given the Commission matter number C2019/393.

[8] Ms White said that she received a telephone call from a staff member of the Commission on Monday 14 January 2019 advising that the Application had been lodged as an application for “Unlawful Termination” instead of “Unfair Dismissal”. The file note of the Commission Staff member from 14 January 2019 records “Incorrect lodgement on OLS - I spoke with rep who confirmed that it was meant to be s 394.”

[9] Ms White said she was further advised that the Application lodged on 11 January 2019 could not be amended and needed to be re-lodged, noting that this would render any new application out of time. Following this, the Commission staff member sent Ms White an email at 12:09PM which stated:

“As per our phone conversation, you confirmed that the application was intended to be an F2 Application for Unfair Dismissal. I thought that I would be able to change the matter type in our system, but unfortunately that is not possible. You will need to lodge the application again either using the online system or by email to hobart@fwc.gov.au and indicate your intention to discontinue the incorrectly lodged matter. I can then refund the original filing fee paid.

I have noticed that the application was lodged on the 21^st day so by lodging again today, the application will be out of time. I will make every effort to note what occurred so that the application is not affected.”

[10] Mr Edmondson said that upon being alerted to this, he instructed Ms White to “relodge the application with the correct code.” A second application was subsequently lodged with the Commission at 1:08PM on 14 January 2019 (Second Application).

[11] In making the Second Application, Mr Bradley stated that he had lodged the Application on the 21st day, however when using the OLS the incorrect electronic lodgment was selected. He said he was only informed about this on 14 January 2019, hence the Second Application was two days out of time. He said the Application had been lodged on the 21st day thereby showing his intent to pursue a claim of unfair dismissal. Mr Bradley further stated, “There is no change to the substantive application, this is merely an administrative procedural error. There is no prejudice to the employer and notes from … the Fair Work Commission will clearly indicate that this is an administrative error only.”

[12] In its Form F3 – Employer response to unfair dismissal application filed on 6 February 2019, DVC objected to Mr Bradley’s application on the basis that it was lodged out of time.

[13] The matter was referred to conciliation on 20 February 2019 but did not resolve. The matter was subsequently listed for an Extension of Time Conference/Hearing on 29 March 2019 to deal with Mr Bradley’s application for an extension of time.

[14] On 20 March 2019, an email was received from DVC’s legal representative advising that DVC wished to withdraw its jurisdictional objection regarding the application being filed out of time and confirming there were no further jurisdictional objections.

The Hearing

[15] On 29 March 2019, a hearing was conducted before me in relation to Mr Bradley’s application for an extension of time.

[16] Both parties sought to be represented by a lawyer pursuant to s.596 of the Fair Work Act 2009 (the Act). After considering oral submissions from the parties on this issue and having weighed the circumstances and considerations in s.596 of the Act, I granted permission for Mr Bradley to be represented by Mr Edmondson of Ogilvie Jennings and DVC to be represented by Mr Joe Brown of Abetz Curtis Lawyers.

Multiple applications

[17] Section 725 of the Act provides:

“725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”

[18] Section 729 deals with unfair dismissal applications:

“729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[19] Section 730 deals with unlawful termination applications:

“730 Unlawful termination FWC applications

(1) This section applies if:

(a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under section 776(3)(a) (which provides for FWC to issue a certificate if FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

…

(2) An unlawful termination FWC application is an application under section 773 for FWC to deal with a dispute that relates to dismissal.”

[20] These provisions, in the context of this matter, interact in the following manner:

•  By virtue of the manner in which the Application was lodged, an unlawful termination FWC application was made on 11 January 2019;

•  Section 730 of the Act applies because the Application has not been withdrawn by Mr Bradley, or failed for want of jurisdiction, or resulted in the issue of a certificate under s.776(3)(a) of the Act; and

•  By virtue of s.725 of the Act, Mr Bradley is precluded from making the Second Application, it having been intended to be an application of a kind referred to in s.729 of the Act.

[21] In other words, s.725 of the Act operates to preclude Mr Bradley from bringing the Second Application in circumstances where there is an extant unlawful termination FWC application before the Commission. At the hearing, there was no dispute when I put this proposition to the parties, together with the observation that it did not appear that the Application had been discontinued.

Section 586 of the Act

[22] At the hearing, I indicated to the parties that I considered it was open to me to exercise the discretion vested in the Commission pursuant to s.586 of the Act to correct and amend the form of the Application from an unlawful termination FWC application to an unfair dismissal application and/or waive any irregularity in the form or manner in which the Application was made. Mr Edmondson agreed this course of action was open to me and no objection was made by Mr Brown.

[23] I had provided the representatives of the parties the Full Bench decision in Hambridge v Spotless Facilities Services Pty Ltd (Hambridge), 1 which arose from an appeal from an unfair dismissal extension of time decision in which the unfair dismissal application (Mr Hambridge’s first application) was filed late because he had originally filed a general protections application.

[24] In the course of the hearing before the Full Bench in Hambridge, the scope of s.586 of the Act arose and the Full Bench considered that the “legal question was whether the Commission had the power under s.586 of the FW Act to allow a correction or amendment to Mr Hambridge’s first application so that it was brought using the correct form, or to waive Mr Hambridge’s error in using the wrong form as an irregularity.” 2

[25] The Full Bench discussed the legal question it had identified, as follows:

“[25] The critical factual consideration in this matter, we consider, is the nature of the first application that was filed by Mr Hambridge. The Deputy President found in the Decision that “... it is clear that Mr Hambridge intended to make an unfair dismissal application but used the wrong form when he lodged his general protections application on 9 December 2017”. Insofar as that was a finding concerning Mr Hambridge’s intention when he made the first application, it was not challenged by either party in the appeal and was indubitably correct on the basis of the material before the Deputy President. The corollary of that finding, of course, is that Mr Hambridge did not intend to make a general protections application, and used the Form F8 by mistake. Notwithstanding his conclusion concerning Mr Hambridge’s intention, the Deputy President nonetheless treated the first application as if it were a general protections application rather than an unfair dismissal remedy application using the wrong form. That the Deputy President treated the first application as such is apparent at paragraph [20] of the Decision (in relation to the reason for the delay) and paragraph [25] (in relation to whether there was any action taken to dispute the dismissal).

[26] We consider that the Deputy President erred in doing so. The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary technicalities”. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt.3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.

[27] Section 585 of the FW Act requires that “An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind”. The first application, because it was not made using the prescribed form, clearly did not comply with s.585. But the FW Act does not provide that an application that is not made in accordance with the applicable procedural rules is necessarily invalid. Section 585 is the first provision in Subdiv.A, Applications to the FWC, of Div. 3 of Pt.5-1. Immediately following is s.586, which provides:

586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

[28] Section 587(1)(a) then provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act;…

[29] Section 588 (within the same subdivision of the FW Act) authorises persons to discontinue applications.

[30] The interaction between ss.595, 586 and 587(1)(a) was discussed in Mihajlovic v Lifeline Macarthur in the context of an unfair dismissal application that was filed prematurely and other than in accordance with s.394(1). The Full Bench said:

[42] ...An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made.

[31] It follows, we consider, that Mr Hambridge’s error in using the wrong form for his first application, in non-compliance with s.585, could have been dealt with in any one of three ways: by correction, amendment or waiver by the Commission under s.586, by dismissal of the application under s.587(1)(a), or by Mr Hambridge discontinuing the application under s.588.” 3 (references omitted)

[26] I have considered the Application before me in the following way:

•  Using the OLS, Ms White would have been first prompted to select from a list of categories, being the various application types that can be lodged. In that list, “Dismissal” and “Unfair Dismissal” appear separately. It would appear Ms White selected “Dismissal”, which then automatically generated the sub category “Unlawful termination” and type “s.773 – Application to deal with an unlawful termination dispute (Form F9)”;

•  On the second screen, Ms White would have been prompted to download the appropriate form, being the Form F9, as well as select the method of payment. As Ms White already had the completed Form F2, she evidently did not download a new form, which would have revealed itself to be the incorrect form;

•  On the third screen, Ms White would have been prompted to upload the completed form and any additional documents. It would appear she uploaded the completed Form F2 as well as numerous additional documents;

•  Following lodgment of the Application, an automatic email was sent from the OLS to Ms White confirming receipt.

[27] Having regard to the requirement in s.577(b) of the Act that I look at the substance of the Application and not the form it assumed by virtue of its incorrect passage through the OLS, I am satisfied, on reviewing the Form F2, its attachments and the other material before me, that the proper characterisation of the Application is that it was an unfair dismissal application, albeit made using the wrong category of application within the OLS.

[28] However, consistent with Hambridge, I consider that the error in following the instructions in the OLS, with the result that there was not compliance with Rule 15(1) of the Fair Work Commission Rules 2013 and s.585 of the Act, can be dealt with by correction, amendment or waiver under s.586 of the Act.

Conclusion

[29] Pursuant to s.586(b) of the Act, I will waive the irregularity in the manner in which Mr Bradley made the Application on 11 January 2019 and order that the Application be given an unfair dismissal matter number.

[30] As discussed with the parties, Mr Bradley’s unfair dismissal application will now be listed for a Member Assisted Conciliation conference and directions will be made for the filing and service of material, so that its merits can be heard and determined, should it not resolve.

DEPUTY PRESIDENT

Appearances:

Mr N Edmondson for Mr J Bradley.

Mr J Brown for Derwent Valley Council.

Hearing details:

2019.

Melbourne and Hobart (telephone):

29 March.

Printed by authority of the Commonwealth Government Printer

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 1   [2017] FWCFB 2811.

 2   Ibid at [18].

 3   Ibid at [25]-[31].