Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time - whether exceptional circumstances - exceptional circumstance found - extension of time granted and application programmed for merits hearing.

• [1] The following are my reasons for decision advised to the parties on 28 January 2025 granting Mr Singh an extension of time for the filing of his unfair dismissal application.

• [2] Mr Singh's application was received by the Fair Work Commission on Saturday, 4 January 2025 at 2:07 AM. As Mr Singh was dismissed by Qube Logistics (VIC) Pty Ltd on Friday, 13 December 2024, his application was made after the expiry of the 21 day statutory time limit for making such applications. This is because the statutory time limit expired at midnight on Friday, 3 January 2025.

• [3] On 20 January, I emailed the parties, asking whether an extension of time should be granted for the making of Mr Singh's application, on the basis of information from the Commission's IT department, which I viewed as suggesting that Mr Singh's circumstances were exceptional and that the Respondent may wish to concede such a situation and withdraw its objection, which it did.[1]

• [4] I then determined the subject of an extension of time on the basis of material I will shortly explain and advised the parties I would grant Mr Singh an extension of time after consideration of the criteria within s.394(3) of the Fair Work Act 2009.

• [5] Relevant to s.394(3)(a), which requires consideration of the reason for the delay, Mr Singh explained his late lodgement as being due to a malfunction of the Commission's lodgement portal;

"I attempted to submit my unfair dismissal application on 03 January 2025, which was within the 21day limit from the effective date of my dismissal. I created an account and filled out the application form on the Fair Work Commission's website. However, I encountered technical difficulties that prevented me from successfully submitting the form online.

Specifically, after completing the application and attempting to submit it at approximately 11:30 PM on 03 January 2025, the submission process became unresponsive. The webpage did not progress to the payment stage, and the screen remained static despite multiple attempts to submit. I kept the tab open for over an hour, hoping the page would refresh and complete the submission process. During this time, I opened another tab and discovered that my application was listed under "Draft Form" with the reference number #QQWJL7. I attempted to submit the application again multiple times from this draft status, but these efforts were similarly unsuccessful.

To document these issues, I took several screenshots of my computer screen during the attempt, which show the timestamps clearly indicating that my actions were well before the 11:59 PM deadline on the same day. These screenshots serve as evidence that I made every effort to submit my application within the prescribed timeframe.

After these repeated unsuccessful attempts and once the website refreshed itself without completing my application submission, I realized the online submission would not be possible. I then found an alternative method to file my application by manually downloading the form, filling it out, and planning to email it to the Commission. Unfortunately, by the time I completed this process, the deadline had elapsed due to the unexpected and prolonged difficulties with the online submission system."[2]

• [6] After programming Mr Singh's application for determination of the extension of time matter, my Chambers sought advice from the commission's information technology staff about Mr Singh's lodgement. The advice returned to me confirmed attempts to lodge an application had been made by Mr Singh before midnight on 3 January 2025 and that timeouts were recorded, but for an unknown reason;

"We were able to obtain the Applicant's email address, [redacted], from the created matter U2025/137. Using this information we have found:

• the OLS account for [redacted] was created at 23:37:12 on 3 January 2025.
• an attempt was made to submit application QQWJL7 at 23:54:04 on 3 January 2025
• this attempt was unsuccessful - we have not been able to identify why the attempt was unsuccessful
• that three other applications were successfully lodged by other users between 11:30pm and midnight on 3 January.

We have checked with the ICT Team and can confirm that there were no system outages at the relevant time."[3]

• [7] Bearing in mind that the delay to be considered by the Commission is the period after the statutory time limit has expired,[4] I am satisfied that Mr Singh has provided a satisfactory explanation for his late lodgement. In this regard his explanation is that he attempted to lodge his application before the time limit expired however a malfunction caused a problem and thereby a filing delay. I am satisfied the malfunction, although unexplained, was not for reason of any error or omission on Mr Singh's part.

• [8] In relation to the remaining considerations within s.394(3);

• s.394(3)(b) - This is not a case in which Mr Singh first became aware of his dismissal after it had taken effect;

• s.394(3)(c) - The action taken by Mr Singh to dispute his dismissal consists only of this application;

• s.394(3)(d) - Qube does not assert any prejudice to it if an extension of time were granted;

• s.394(3)(e) - Requires consideration of the merits of the application, at least in summary form. The material before the Commission on the subject is at this time necessarily basic. Mr Singh puts forward he was stood down after exercising his "right to disconnect", allegedly for discrepancies over attendance records, arguing the stand down was premature and avoidable. After returning to duty he submitted a request for compensation and was again stood down and accused of being aggressive and non-compliant. He believes his explanations were not listened to and that his dismissal and the events leading to it were "a pattern of unfair targeting". Qube put forward that Mr Singh was dismissed following an investigation into an incident it alleges resulted in a breach of the Acceptable Workplace Behaviour policy, and a failure to follow a lawful and reasonable direction. The Commission does not determine these contentions and regards the merits consideration to be a neutral factor in determination of exceptional circumstances.

• Relevant to s.394(3)(f), there is nothing before the Commission that would address the matter of fairness as between Mr Singh and other people in a similar position.

• [9] In conclusion, my consideration of s.394(3)(a) is that the explanation relied upon by Mr Singh is sufficient to meet the test of exceptional circumstances and that consideration of the criteria in ss.394(3)(b) - (f) does not lean against such a finding.

• [10] For the reasons given, I will extend the time for Mr Singh to lodge his unfair dismissal application to 4 January 2025. An order will be issued to that effect (see PR784181). The matter will now be programmed for a merits hearing before me.

[1] Respondent's email, 20 January 2025.

[2] Singh, Reason for delay in filing unfair dismissal application, 20 January 2025.

[3] Email to Wilson C Chambers, 16 January 2025.

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [40].

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