Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - whether application made within statutory timeframe - distinction between when application is "lodged" and "made" - application made within time - application to proceed.

• [1] At 11:52pm on 16 June 2025, Ms Vicki Ketu attempted to make an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal.

• [2] The email accompanying the application stated the following:

Please find attached my application to file under General Protection s 240 and s351.

All documents are contained in the link. I have a signed Statement of Events that I will have to scan and email to you seperate please, with medical evidence of the impact of the incident and thereafter. I have been under stress trying to get this emailed to you, and I have attempted to get this in before 12am.

Please let me know at the first instance if you can not access this zip file. It is quite a lot to send through.

• [3] On 20 June 2025, a Commission representative within the Client Services branch sent the following email to Ms Ketu:

I refer to the above matter and below correspondence.

The Fair Work Commission is unable to open the attached file.

The documents must be provided to the Commission in an acceptable format. Formats accepted by the Commission can be found here: Approved file types Fair Work Commission

Please resend the documents in one of the acceptable formats.

If you have any queries please contact the Commission on 1800 759 566. For further support and legal help please see our website."

• [4] Within an hour, Ms Ketu sent to the Commission the documents in a readable format.

• [5] Ms Ketu was dismissed from her employment with The Mitchell Family Trust (the Respondent) on 26 May 2025. To be within the 21-day time limit to bring a s.365 application, the application needed to have been made by 16 June 2025.

• [6] This decision deals with whether the application has been made prior to midnight commencing 17 June 2025; that is, wholly within the date of 16 June 2025.

• [7] There are no contested facts between the parties, and I am satisfied I can determine the issue on the papers. The Respondent sensibly stated that it did not raise any objection that the application was made out of time.

• [8] A similar circumstance arose in Matthew Duncan Hatch v Woodside Energy Ltd [2023] FWCFB 51, a decision of a Full Bench of the Commission. In that matter, an application had been made by Mr Hatch at 11:59pm in his state of residence. The Full Bench stated the following, noting the application of the Fair Work Commission Rules 2013 at that time:

"[49] By way of further illustration, a typical event following an application is the acknowledgement email contemplated by Rule 14(4). That subrule provides than an application is "not taken to have been lodged" until an acknowledgement email is provided to the applicant by the Commission. We consider this subrule illustrates the difference between the statutory time limit for an application to be "made" and procedural rules regarding "lodgement". It would be a curious result if a delay by the Commission in sending an acknowledgement email had the effect of taking an application outside of the statutory time for making the application. We do not consider the statute operates in such a way.

[50] One issue of significance was the fact that the Appellant's initial email at 11.59pm AWST attached a document that the FWC Registry was unable to read. On the material before us, we consider that was an issue of "lodgement" and did not affect whether the application had been "made". It is also unclear to us exactly what the reason was for the Registry being unable to view the initial attachment. As noted above, the email sent on 5 May 2022 from the Registry stated that the attachment could not be opened because of the format of the files, or security restrictions imposed by the Applicant, or security restrictions of the Commission for some file sharing websites. We note that correspondence does not indicate what the actual reason was that the files contained with the Appellant's first email could not be read. We also note the Appellant has stated (and we have no reason to doubt) that his initial email did contain a "Word" format document, which is consistent with the correspondence from Registry regarding its preferred file formats. In the event that it was not, compliance with rule 14 is waived.

[51] Nonetheless, the Applicant resent the attachment in PDF format. There is no suggestion that what he resent in PDF form was any different in content to his initial document, such that it was a different application. We do not consider that these events allow a conclusion that the application was not "made" at 11.59 AWST."

• [9] In the above matter, the Full Bench determined that Mr Hatch had made his application at 11:59pm and within the statutory time limit.

• [10] I adopt the above decision and find that Ms Ketu made her application at 11:52pm on 16 June 2025 and accordingly her application has been made within time. If it is necessary to determine that the attachment to Ms Ketu's application was not in compliance with Rule 16 of the Fair Work Commission Rules 2024, compliance is waived.

The matter will now proceed to a conference before me to learn if the parties can reach agreement to resolve the dispute between them. If they cannot, a s.368 certificate will be issued to Ms Ketu.

Printed by authority of the Commonwealth Government Printer