Fair Work Act – Extension of time

Electronic lodgement (difficulties with)

[2011] FWA 8375 Vic Hillbrich v C & D DeMartin (the A, who was a third year apprentice, had no internet connection and decided it was too difficult to proceed and was depressed – A contacted FWA soon after his dismissal, but claimed not to know about the 14 day limit or that he could lodge his application other than by the on-line method – extension refused)

[2012] FWA 6980 Vic Parker v Cetel Communications (where application may have been one day late and where A had difficulties lodging on-line and effecting payment due to his own lack of skills, exceptional circumstances found)

[2013] FWC 2059 NSW Roberts v Ozone Manufacturing (the A thought he had electronically filed his application on time, but when he followed it up two months later he discovered he hadn’t – unclear what went wrong with e-filing – merits of case in A’s favour – extension allowed)

[2013] FWC 6586 Vic Garson v Urban Land Authority (A’s application one day late due to his failure to use the electronic lodgement system successfully – it was plausible that his efforts failed due to the volume of material he tried to scan – exceptional circumstances found)

[2014] FWC 1085 WA Thorpe v Standard Communications (“as a result of either the applicant’s errors in using the Commission’s efiling system or due to faults in the operation of the efiling system the applicant mistakenly believed he had made his application within the 21 day time limit however when he was advised that no application had been received he immediately emailed his application to the Commission” @19 – there also appeared to be merit in A’s claim, although R had not submitted material on the issue of merit – application five days late – exceptional circumstances found)

[2014] FWC 3089 WA Mandavy v Process Resource Group (exceptional circumstances where A lodged an incomplete application on time due to difficulties with FWC’s e-filing system)

[2014] FWC 2097 Vic de Vries v Chabad Institutions of Australia (the A’s husband on the last day before the limitation period expired mistakenly thought he’d successfully lodged the e-application – he had made a bona fide effort to lodge application on time – the fault was at his end and not with the Commission’s processes – application four days late – serious allegations had been made against A and she had been given limited information about them – the merits of the case weighed in A’s favour in this application – exceptional circumstances found)

[2014] FWC 4146 NSW Parker v Officeworks (the A’s mother thought she had successfully faxed A’s application on time, but had not included the area code – 16 days late – upon contacting FWA the error was discovered – exceptional circumstances found – Appeal allowed 29/8/14 in [2014] FWCFB 5779 – findings not reasonably open on the evidence made – “The failure to consider the submissions of Officeworks and the making of findings based on evidence in circumstances where the veracity of that evidence was persuasively challenged amounted to significant errors in the decision-making process” @27 – “we do not consider that incompetence in sending a facsimile transmission is of itself such an unusual or special occurrence as to support a conclusion that there were exceptional circumstances” @32)

[2014] FWC 4095 WA Elward v Asset Shrinkage Solutions (application a day or two late – A’s electronic application bounced back several times for being in the wrong format and then A had internet connection issues on the final day for lodging in time – held that the “possibility of these events occurring are common and not exceptional. To accept these circumstances as valid reasons for a delay in filing the application, would ignore the elapsed time between the dismissal (or alleged dismissal in this case) and the onset of the technical problems and render the statutory timeline meaningless” @18)

[2014] FWC 6260 NSW Medcalf v Brewarrina Business Co-operative Ltd (the A electronically lodged her general protections action successfully, but she discovered at a FWC conference that her unfair dismissal application had not been received – she lodged her application on her work computer which soon after she did not have access to – A had a responsibility to follow up the status of her application – failure to follow up – no exceptional circumstances)

[2014] FWC 7150 SA Rocca v Independent Practitioners Network (application three days late – A gave evidence she tried to lodge application electronically over two days, but failed because the FWC’s web-site was not accepting applications – despite reservations about merits, special circumstances found)