Charlie Bulos Legal Viewpoints

This has become a contentious issue in the case of Sarah Bonnar v Rail Industry Safety & Standard Board (U2017/119776) Sydney 24 April 2018.

Facts

On 10 November 2017, the applicant filed the application for unfair dismissal against the respondent. The applicant filled out the relevant form (Form 2) prescribed under section 394 of the Fair Work Act (2009) (‘the Act’). The application was sent by electronic mail.

There are three annexures intended to be attached to the application but, as indicated, it is enclosed with one annexure instead of two annexures. The lawyer indicated that this will be provided in due course.

The application likewise did not have any application charge or fee with it and that time it was $70.60 which is required under section 395 (2) of the Act. However, this was paid a day after it was filed with the use of a credit card.

After (6) days of lodgment, the applicant provided the missing two annexures she promised with the application. On 17 November 2017, the respondent filed an opposition to the application claiming it was incomplete and did not constitute a valid application. The decision not to provide the complete application is not due to error or inadvertence but a decision made consciously.

The Fair Work Commission (FWC) informed the applicant that if she does not pay the required fee or applied for a waiver within 14 days, the application will be dismissed. The FWC likewise asked for complete documentation to support the application. The respondent through its lawyer filed Form 1 seeking the declaration of the application to be invalid.

On 20 November the FWC advised that the application is listed for conciliation. The respondent opposed the conciliation unless the FWC resolved the issue of invalidity. The applicant responded and claimed that Form 2 was not filed on time and the legislation is not clear about what makes the application complete or incomplete.

Issue: Is the application valid or not?

The FWC listed the matter for mediation and both parties maintained their positions as to the validity or invalidity of the application. The applicant was able to cite the basis of their argument that the application was not filed on time. Subrule 14(4) states that if the document is lodged commencing the matter by email in accordance with Rule 14 and had been acknowledged, this application is taken to have been lodged at the time it was received electronically.

As it is, the applicant claimed that any extension of time related to Form 2 is not on the lodgment of annexures or filing fee. (see Explanatory Statement to the Fair Work Commission Rules 2013)


READ: When is a person protected from unfair dismissal?


Conclusion

Under paragraph 31 of the decision, Part 2 of the Rules set out the procedure for making an application to the FWC. This must be in an approved form which the applicant did. “If these Rules require that an approved form be used, it is sufficient compliance if the document is substantially in accordance with the approved form.” 

In Paragraph 33, the Full Bench in Thiess Services Pty Ltd. v Stephens 3 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.”

Accordingly, the FWC finds that a valid application was made on time.

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