Fair Work Act 2009

s.394 - Unfair dismissal

Application for unfair dismissal remedy - date application was made - whether application is invalid if not accompanied by filing fee - meaning of 'accompanied'

[1] On Friday 10 November 2017, Ms Sarah Louise Bonnar (the Applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged by email which relevantly stated:

"Please find attached the completed Form F2 - Unfair Dismissal Application together with Annexure A.

[2] The application was made on the 'Form F2-Unfair dismissal application' which was the approved form,[1] and was signed by Ms Sarah Lock of QLD Law Group on behalf of the Applicant and dated 10 November 2017. The fee, required by s.395(2) of the Act and prescribed by reg.3.07 of the Fair Work Regulations 2009 (the Regulations), was not paid at the same time as the application was made.

[3] On Monday 13 November 2017, payment of $70.60 was made by credit card following communication between the Registry and the Applicant's representative.

[4] On Thursday 16 November 2017, the Applicant's representative emailed the Registry, providing a copy of Annexures B and C. Annexures B and C were the response to paragraph 3.2 of the application, being "Why was the dismissal unfair?".

[5] On 17 November 2017, the Rail Industry Safety & Standards Board (the Respondent) filed a 'Form F1- Application (No Specific Form)' in which the Respondent contended:

• The Form F2 filed on 10 November 2017 was incomplete and not a valid application;
• The Applicant did not substantially complete or provide a form which was substantially compliant with Rule 8 of the Fair Work Commission Rules 2013 (the Rules) in that the Applicant failed to complete section 3.2 identifying why the dismissal was unfair;
• The failure to substantially complete the form was not due to error or mistake and was a decision made consciously;
• By not substantially completing the form, the Applicant failed to comply with the Rules and the application should be declared invalid;
• Alternatively, no further period for the application to be made (pursuant to s.394(2)(b)) should be allowed.

[6] This matter has had a somewhat lengthy procedural history which is set out below.

[7] On 10 November 2017 at 1:53pm, the Registry contacted the Applicant's representative regarding payment of the filing fee. A file note indicates that a message was left.

[8] On the same date the Registry wrote to the Applicant and her representative:

Title: Bonnar, Sarah Louise v Rail Industry Safety & Standards Board

Fair Work Commission Matter Number: U2017/11976

The Fair Work Commission (the Commission) received an application for unfair dismissal remedy from you on 10 November 2017 in relation to your employment with Rail Industry Safety & Standards Board.

The Commission attempted to contact you on 10 November 2017 and left a message in regards to your application.

This application was incomplete. Annexure B and C referred to in the application were not attached. Please forward Annexure B and C to the Fair Work Commission (a copy of the application is attached).

This application was made without payment of the application fee of $70.60. You can apply to have the application fee waived if paying the fee would cause you serious hardship. The Form F80 - Waiver of application fee is attached. If you wish to proceed with your application please pay the application fee or apply for a waiver quoting Matter Number U2017/11976.

If you do not pay the application fee or make an application to have the fee waived within 14 days of the date of this letter, your application may be dismissed.

If you wish to proceed please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible.

If you and Rail Industry Safety & Standards Board resolve your application or you decide to discontinue your application, you must complete the Form F50 - Notice of Discontinuance, send an email or advise the Commission by telephone that you no longer wish to pursue your application. It is important to note that discontinuing an application means that the matter cannot be pursued at a later time.

For more information you can telephone the Commission on [telephone number] or go to www.fwc.gov.au.

[9] On 10 November 2017, the Registry also wrote to the Respondent relevantly advising:

"The Commission is currently awaiting further information from the applicant in relation to this application. This application cannot be progressed at this time.

If the necessary information is not provided, the application may be dismissed. If the Commission dismisses the application, a copy of the decision and order will be sent to you."

[10] On 14 November 2017, the Respondent's representative wrote to the Commission regarding the letter dated 10 November 2017, seeking clarification regarding the method of lodgment of the application:

"Is it the case that this application was made by phone as contemplated by Rule 9 of the Fair Work Commission Rules 2013?"

[11] By 17 November 2017 when the Respondent filed a Form F1 seeking a declaration that the unfair dismissal application lodged on 10 November 2017 was invalid, the Applicant had paid the prescribed fee and Annexures B and C had been filed.

[12] On 20 November 2017, the Commission wrote to the parties to advise that an unfair dismissal application lodged on 10 November 2017 had been received and listed the application for conciliation before a Commission Conciliator. On the same date, the Respondent's representative re-sent the Form F1 dated 17 November 2017, noting that this application had been made "before the... unfair dismissal claim was considered complete".

[13] On 22 November 2017, a Commission staff member responded the Respondent's email of 20 November 2017 and advised:

"If parties are prepared to participate at conciliation, the matter would proceed to conciliation as per Notice of Listing.

If participation at conciliation is declined, the matter would be referred to the Panel Head for review to determine if the application is to be dismissed."

[14] In a reply email dated 22 November 2017, the Respondent's representative advised that the Respondent would not participate in a conciliation of the matter before the validity of the purported application had been determined.

[15] The Applicant's representative filed submissions in response to the Form F1 on 22 November 2017. The Applicant submitted that:

• The Form F2 was not filed out of time and was lodged on 10 November 2017;

• The legislation is silent on what makes a complete or incomplete application;

• There was four business days between the lodgment of Form F2 and the lodgment of Annexures B and C;

• The Respondent would not be prejudiced by the Annexures being lodged after the Form F2, however; the Applicant would be prejudiced if her case is not allowed to be heard by the Commission.

[16] On 27 November 2017, the Commission wrote to the parties to advise that the matter would be listed for Mention by telephone before Commissioner Wilson on 28 November 2017.

[17] On 28 November 2017, the Respondent filed a summary of submissions which largely restated the position outlined in the Form F1. The Respondent contended that the application should be rejected as not only incomplete but invalid, and the Commission should dismiss the application or hold that the documents lodged on 10 November cannot be an unfair dismissal application under the Act - "for to do otherwise is to grant applicants a means of extension not contemplated by the Fair Work Act and without having to show exceptional circumstances."

[18] On 30 November 2017, Commissioner Wilson wrote to the parties following the Mention, indicating amongst other things that the application would be referred for hearing to determine the question of when the application was made, and whether an extension of time was required.

[19] On 30 November 2017, the Applicant's representative provided further information to the Commission to support the contention that the application made on 10 November 2017 was "submitted and lodged on time" on that date. The Applicant cited the Explanatory Statement to the Fair Work Commission Rules 2013:

"Subrule 14(4) concerns the time at which an application that is lodged by email is taken, under the Rules, to have been lodged with the Commission. It provides that, if a document lodged in accordance with Rule 14 is an application commencing a matter, the General Manager must, by email, acknowledge receipt of the application. The application is not taken to have been lodged until the acknowledgment of lodgment has been sent. Once the acknowledgment of lodgment has been sent, however, the application is taken to have been lodged at the time it was received electronically by the Commission."

[20] Accordingly, the Applicant submitted that any extension of time argument should relate to an extension from lodgment of the Form F2 and not the date when the Annexures were lodged or filing fee paid.

[21] In respect of the payment of the prescribed fee, the Applicant noted that payment was made one business day after lodgment of the Form F2. Furthermore, the Commission had sent a letter dated 10 November 2017 confirming that the Applicant had 14 days to make payment or the application may be dismissed. The Applicant submitted that by sending a Notice of Listing on 20 November 2017, the Commission had accepted the application, noting that it was the general practice of the Commission to send a letter advising that an application had been made out of time. No such letter had been received. The Applicant also noted that the Respondent had not filed a 'Form F3- Employer Response to Unfair Dismissal Application' within 7 calendar days of receiving the Form F2.

[22] On 5 December 2017, Commissioner Wilson's Associate wrote to the parties confirming that the Commissioner had decided to allocate the matter for determination of the question of whether an extension of time for the making of an application would be permitted and the date upon which the application may be regarded as having been made.

[23] On 15 December 2017, the Respondent's representative filed a 'Form F4 - Objection to unfair dismissal application'. The objection was that the application was out of time, because the Form F2 was 'incomplete' when filed and therefore not a valid application, and was not an application made in accordance with s.394 because it was not accompanied by payment of the filing fee and/or there was not substantial compliance with the rules because it deliberately omitted to identify the grounds and facts on which the application was based. The Respondent also asserted that as the filing fee was paid after the expiration of the 21 day time limit, the application was not made in accordance with the Act and accordingly was not an application made within the 21 day time limit.

[24] The application was listed before me in Brisbane on 6 February 2018. With permission, Ms S Lock appeared for the Applicant and Mr R King of McKay Solicitors appeared for the Respondent.

[25] This decision is concerned with the question of whether the application lodged on 10 November 2017 was validly made. In particular it is necessary to consider what makes an application complete, namely:

• (a) Will an application be taken to be made if the application fee is not paid at the same time as the application is made?; and

• (b) What level of specificity is required for an application to be 'substantially complete', and will an application be taken to be made if it is not 'substantially' complete?

[26] If I decide that the application was not made on 10 November 2017, it will be necessary to determine whether a further period for the application to be made should be allowed pursuant to s.394(2)(b).

[27] Both parties filed detailed written submissions which were expanded on during the hearing. While I have not repeated the submissions in detail in this decision, I have had regard to all of the matters and issues raised by the parties in coming to this decision.

[28] The relevant provisions of the Act are as follows:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

[29] The application fee referred to in Note 2 to s.394 is set out in the successive section:

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded."

[30] An application fee is prescribed for s.395(2) under reg.3.07(3) and is indexed annually on 1 July. The fee is presently $70.60.

[31] Part 2 of the Rules sets out the procedure for making applications to the Commission. The Rules require that where the President has approved a particular form, subject to the Rules, the approved form must be used.[2] Subrule 8(5) states: "If these Rules require that an approved form be used, it is sufficient compliance if a document is substantially in accordance with the approved form."

[32] In Thiess Services Pty Ltd v Stephens[3] (Thiess Services) the Full Bench referred to the decision of Commissioner Jones in Chalker v Melbourne Bus Link[4] (Chalker), noting that the Commissioner had rejected the Respondent's contention that the word 'application' in s.394(2) of the Act meant an application which was completed in all relevant respects:

"... construing s.394 of the Act so as to require a completed application within 14 days [as it then was] would not facilitate informality and flexibility and would operate unfairly against applicants."[5]

[33] The Full Bench in Thiess Services also confirmed:

"It is not necessary for an application to be complete and signed for an application to be made, given that requirement arises from the Rules and the requirements of which may be dispensed with under Rule 6."[6]

[34] Rule 6 allows the Commission to dispense with the compliance of rules or orders:

"6 Dispensing with rules and orders inconsistent with rules

(1) The Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.

(2) The Commission may make an order that is inconsistent with these Rules and if it does so, the order will prevail.

Note: An order of the Commission may be given in the form of a direction."

[35] Section 395 of the Act confirms that an unfair dismissal application "must be accompanied by any fee prescribed".

[36] While the word 'accompanied' can be defined as "at the same time as", it can also mean to complement or be in addition to something, or to go along with. In the context of s.395, I consider that 'accompanied' should be interpreted to mean that the fee is 'to complement' the application or be made 'in addition to' the application. It does not require that the fee be paid at precisely the same time as the application.

[37] In the matter of Atanaskovic Hartnell Corporate Services Pty Limited v Kelly[7] (Atanaskovic), a Full Bench opined that the factual circumstance of the matter gave rise to concerns about the Commission's procedure for lodgment where a general protections application form stated that application fees are payable "at the same time as you lodge your application" but also stated "[i]f paying by credit card, please provide your contact details below and a Fair Work Commission officer will contact you by telephone within 3 business days from the date of your lodgment."[8] The application form for an unfair dismissal is framed in identical terms.

[38] The decision in Atanaskovic did not resolve this perceived inconsistency nor determine the timeframe for which accompanying fees must be paid. However, it noted that this matter would require consideration in the future:

"The statement on the last page of the Form F8, If paying by credit card, please provide your contact details below and a Fair Work Commission officer will contact you by telephone within 3 business days from the date of lodgement", may not be consistent with the requirement in s.367(1) that the application be "accompanied" by payment of the prescribed application fee, and may create doubt as to the validity of lodgment where the application is lodged (physically or by email or fax) in reliance upon this statement within three days of the expiry of the 21-day filing period".[9]

[39] Allowing three days for the Registry to contact an applicant regarding credit card payment also suggests that the term 'accompanying' is not intended to have an immediate temporal element. This proposition is further supported by the Rules.

[40] The procedure established by subrule 9(1)(b) allows a person wanting to make an unfair dismissal application to do so by telephone. The Rules further stipulate that when a person makes an application by telephone: "The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person".[10] After the Commission has prepared the written application, subrule 9(4) states:

• (4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:
  • (a) pay:
    • (i) for an application under section 365 of the Act - the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act - the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

[41] A plain reading of rule 9 suggests that both lodgment of a written application and payment (or waiver) must be made within 14 calendar day of the day on which the applicant is in receipt of the application prepared by the Commission.

[42] As noted by Commissioner Jones in Chalker, the Rules which allow for an unfair dismissal application to be made by telephone promote the Objects of Part 3-2 of the Act.[11]

[43] The Object of Part 3-2 of the Act are set out in s.381:

(1) The object of this Part is:

• (a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement."

[44] In the present case, the application was made by email, therefore the requirements for lodgment are set out in rule 14 of the Rules:

(4) If a document lodged in accordance with this rule is an application commencing a matter:

• (a) the General Manager must send an acknowledgment of lodgment, by email, to the person lodging the document; and

• (b) the application is not taken to have been lodged until the acknowledgment of lodgment mentioned in paragraph (a) has been sent; and

• (c) once the acknowledgment of lodgment mentioned in paragraph (a) has been sent, the application is taken to have been lodged at the time it was received electronically by the Commission."

[45] In this matter, acknowledgement of lodgment can be taken to have occurred on 10 November 2017 when the Commission wrote to the parties advising that an application had been received. While the letter stated that the application was 'incomplete' as Annexures B and C referred to in the application were not attached, nonetheless the Commission confirmed receipt of the application and gave the application a Matter Number. The letter also stated that the application had been "made without payment of the application fee of $70.60" and allowed the Applicant 14 days from the date of the letter to make payment of apply for fee waiver. While the 14 day period does not have a legislative basis, it is consistent with the period allowed where an application is made by telephone in accordance with subrule 9(4).

[46] Whilst in the present case, the application was made by email in accordance with rule 14, it would be illogical to suggest that it was the legislative intention that an applicant would be disadvantaged or advantaged based on the method of lodgment. That is, that where an application is made by telephone an applicant would have a period of 14 days to complete an application form and pay the prescribed fee, but where an application is lodged by email, the same would not apply. Furthermore, such operation would be contrary to the Object of Part 3-2 of the Act.

[47] In undertaking the task of interpreting legislation, the High Court has adopted a purposive approach to statutory construction:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos ((1955) [1955] HCA 27; 92 CLR 390 at 397), Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed."[12] (citations omitted)

[48] In construing the provisions dealing with lodgment of an unfair dismissal application, regard must be had to the stated objective which is to establish procedures for dealing with unfair dismissals in a manner that is "quick, flexible and informal"[13] as well as the overall statutory scheme.

[49] In making the unfair dismissal application on 10 November 2017, the Applicant's representative complied with the mandatory requirement of s.394(2)(a) by making an application "within 21 days after the dismissal took effect". While the application was not 'accompanied' by the prescribed fee at the time of lodgment, when considered in the context of the overall statutory scheme; particularly in light of subrule 9(4), it would appear there is no such express temporal requirement. Furthermore, there does not appear to be a good reason to depart from the reasoning set out by the Full Bench in Thiess Services that it is not necessary for an application to be complete for an application to be made given that any such requirements for lodgment under the rules may be dispensed with under rule 6.

[50] Furthermore, s.586 of the Act confers a discretionary power on the Commission to correct and amend applications and documents:

"586 Correcting and amending applications and documents etc.

(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."

[51] Accordingly, the Commission is empowered to allow an amendment of the application of 10 November 2017 to include Annexures B and C pursuant to s.586(a), or alternatively waive the 'irregularity' of having not included the content of Annexures B and C pursuant to s.586(b).

[52] Consequently, I find that the application for a remedy for unfair dismissal was validly made on 10 November 2017. The application was made on the approved form and was substantially in accordance with the form for the purpose of subrule 8(5). While the application was not complete in the sense that it did not include Annexures B and C, there is no requirement that an application must be complete to be a valid application.

[53] The Commission is not a court of strict pleading. To require this level of formality and/or specificity would not in my view be consistent with the relevant Objects set out earlier. If applicant's were held to this standard, then the same standard would be required of respondents when filing their employer reply (Form F3). This would not be 'quick, flexible and informal' for either party.

[54] To the extent it is necessary, I consider it appropriate to allow the Applicant to amend the application to include Annexures B and C pursuant to s.586(a). I note this could also be done by waiving any irregularity pursuant to s.586(b).

[55] Further, I find that there is no requirement that the fee be paid at the same time as the application, as contended by the Respondent. The fee must 'accompany' the application as required by s.395 unless, of course, it is waived or refunded pursuant to s395(2)(c). The word 'accompanied' should be given its broadest meaning to give effect to the relevant objects of the Act.

[56] The object of Part 3-2 of the Act is to inter alia establish procedures which are "quick, flexible and informal". Imposing a requirement that a fee must be paid at the time that the application is made would in my view be contrary to this stated object. Also, having regard to the legislative scheme as a whole, it is apparent that Parliament intended that the procedure for lodging an unfair dismissal application be flexible, whilst still balancing the needs of employers and employees[14] by adhering to the strict 21 day period for lodgment set out in s.394(2)(b) of the Act.

[57] In this case, where the fee was paid one business day after the application was made, I find that the application was 'accompanied' by payment of the prescribed fee, and accordingly the application was valid as at 10 November 2017 when it was lodged by email, in accordance with subrule 14(4).

[58] The requirement under s.394 for an application to be made within 21 days is a requirement for the application itself to be made within that time frame. In my view it does not extend to the fee contemplated by s.395. Had it been intended that the payment of the fee be a condition precedent to the making of a valid application, then it is reasonable to assume that such an intention would have been expressed in plain words in the legislation. Nowhere in the Act or the Rules does it state that an application is not made until the payment of the fee is received.

[59] Accordingly, as I find that a valid application was made within time, the matter will be referred for conciliation, and if necessary, arbitration. An order to that effect will issue with this decision.

R King for Rail Industry Safety & Standards Board.

[3] [2014] FWCFB 2426 at [21].

[4] [2012] FWA 3399.

[6] [2014] FWCFB 2426 at [22].

[7] [2017] FWCFB 763.

[11] [2012] FWA 3399 at [16].

[12] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]

[13] Thiess Services Pty Ltd v M Stephens [2014] FWCFB 2426 at [21]; s.381.

Printed by authority of the Commonwealth Government Printer