The perils of electronic lodging of documents with FWC

A recent decision of the Fair Work Commission highlights the dangers of being unfamiliar with the FWC Rules and specifically, the Rules about filing documents electronically with the Commission.

The Commission’s decision in Ms Deborah Davie v North Queensland Primary Health Network [2016] FWC 8979 (‘Davie’) is an example of the very strict approach the Commission has taken to the application of these Rules.

In this day and age it is common for industrial officers, lawyers and applicants to file applications and documentation with the Commission via email.

In Davie, the Applicant lived in a rural area with limited access to the internet.

She alleged that she was dismissed by her employer on 6 October 2016, and so the time for her to lodge her application under s 340 of the Fair Work Act expired on 27 October 2016.

On 27 October 2016, the applicant emailed the Fair Work Commission two documents. These documents were saved using ‘Pages’.

‘Pages’ is the default word processor used on Macintosh Apple computers and is an alternative program to the more commonly used Microsoft Word.

On 28 October 2016, upon receiving these documents, a staff member of the Commission replied to the applicant’s email advising her that they could not open the documents and directed her attention to Rule 14 of the Fair Work Commission Rules, relating to the lodgement of documents by email which reads:

14 Lodging documents by email

(3) If a document is lodged by email:

(a) the document must be attached to the email:

(i) for a statutory declaration — as a PDF or other image format approved by the General Manager; and

(ii) for any other document — as an attachment in Word, RTF or PDF format or another format approved by the General Manager; and

(iii) without any security restrictions

The email from the Commission advised that given they were unable to read the documents, if they contained her application it was not taken to have been lodged.

The applicant drove to find access to the internet, saved the files in PDF format and sent them to the Commission later that day on 28 October 2016.

However, the Commission took the view that the documents had not been lodged within the specified 21 day time limit because they had not been sent to the Commission within the period in accordance with Rule 14.

On this point, the Commissioner found that the principal reason the application was outside the time limit was

“because “Pages” is not an approved format under the Rules for documents lodged by email with the Commission and the applicant was not aware of that fact at the time she attempted to lodge her Application on 27 October 2016.

But for the attachments to the applicant’s email of 27 October 2016 to the Commission being in the “Pages” format, the Application would have been filed within the time prescribed by s.366(1)(a) of the Act.”

The Commission found that the applicant’s failure to comply with Rule 14 was a “out of the ordinary course, unusual, special and uncommon” factor which weighed in favour of her application for an extension of time being granted.

Despite this, however, the Commission ultimately held that the merits of her adverse action application outweighed this factor and declined to grant the extension of time.

Lessons for industrial officers and organisers

1. If filing documents by email, all applications should be filed in Word, RTF or PDF format!
2. The Commission has taken a strict approach to applying the Fair Work Commission Rules as they relate to procedural issues. Accordingly, it is important that union staff members responsible for filing documents with the Commission are aware and familiar with the Rules.
3. Applications that are subject to the 21 day limitation date should be lodged ahead of time if possible to avoid the dangers of the Commission’s reluctance to grant extensions of time.