Is computer malware an ‘exceptional’ reason to extend unfair dismissal claim?

'I was the victim of a run of bad luck,' says employee

Is computer malware an ‘exceptional’ reason to extend unfair dismissal claim?

In the digital era, cyber threats are becoming a more pressing concern for employers and individuals alike – but what happens if a computer virus or malware stops an employee from filing an unfair dismissal application on time?

This was the central question in a recent case where an employee claimed that a malicious software stopped her from submitting her application within the required 21-day period.

The employee is a resident of suburban Brisbane, Queensland. She started working for Randstad, a labour hire agency, around March 2022.

At the time of her alleged dismissal, she was working in a placement with the National Disability Insurance Agency (NDIA). She said in her application that she was removed from her placement at the NDIA effective 9 February 2023 for reasons “fabricated by the NDIA after she had made a bullying complaint.”

On the other hand, Randstad said it did not dismiss her and that she “remained on its books as an employee for other placement purposes.”

After speaking to a friend about a week after her dismissal, she looked into the commission’s website.

She discovered that she could make an unfair dismissal claim. She researched using a computer at her friend’s house and in the evenings on her daughter’s laptop.

She waited until three days before the 21-day deadline to apply. That morning from her friend’s house and computer, she drafted the text of an email that she would attach to her application.

She did not fill out the form that day and waited the day after so her partner could assist her.

Online form

On 28 February 2023, or the 19th day of her allowable period, she accessed the unfair dismissal form online, filled out the details and signed it electronically. 

She used her 13-year-old daughter’s laptop and email account, and through the commission’s online portal, she emailed her application form, a fee waiver request, and a cover email.

She believed that “her application had been sent and received” and “did not look in the ‘sent items’ box in her daughter’s email account to check that her email had been sent.”

At around the same time, she also sent the attachments to her application to her union, advising it that she had made an unfair dismissal claim.

That evening, she saw that the battery on her daughter’s laptop was not charging for long enough.

The laptop had been recently purchased from a local computer repair shop. The employee then decided to take the laptop back to the shop, but it was closed.

However, a repairman was present and told her to leave the laptop under the door, which she did. She followed up with the repairman the next day, asking for the laptop to be assessed.

Over eight days (28 February 2023 to 8 March 2023), the laptop was assessed and repaired.

The repairer had discovered malware that had infected it with a virus. It was cleansed and rendered operable.

The report read:

“This is to confirm that on the 28/2/2023, she dropped in her laptop to this workshop after clicking on a link to a malware site and was instantly infected by a crypto virus on her laptop. It was confirmed that it had been compromised by malware and scam FBI crypto virus. The drive was cleaned, and Windows was reinstalled and picked up on the 8/3/2023”

She and her daughter collected the computer from the computer repairer on 8 March 2023 and took it home.

She said that she did not re-send to the commission her unfair dismissal application or the fee waiver request, or the cover email on 8 March 2023. She did nothing electronically that day concerning her application.

However, by covering email dated 8 March 2023, the commission that day received an email from her via her daughter’s email account.

The commission tagged her application as late and wrote to her to ask for an explanation for the delay.

Surprised at the commission’s finding, she replied:

“I was using my daughter’s computer at the time due to my employer retrieving the laptop I was using. I prepared and sent my original email on 28th February, the day after my birthday and 2 days before the cut-off. My daughter’s computer was recently purchased from a local IT company and had been refurbished. There was a problem with the laptop, and we had to take it back for them to service. On restart of the laptop, that must have been when the email went through. The repairer is more than happy to write a confirmation letter that he had the laptop for repair.”

The commission’s decision

In allowing the claim, the commission had to determine if the employee’s case had an “exceptional circumstance” that would justify an extension.

“The reason for the delay advanced by the employee is that she was precluded from making her application within time by a malfunction on her daughter’s computer that was unknown to her at the time. Based on the repairer’s report Ms Robson now believes the malfunction was malware,” the commission found.

The employee further argued that she was “the victim of a run of bad luck.”

“It is certainly an unusual circumstance that an email sent on a particular day is not received by the Commission until eight days later and then received under cover of an email dated the day it was received and not the day it was sent,” the commission said.

“Yet that is what occurred in this matter, and this occurred without relevant error or failure on the employee’s part,” it added.

“It was the product of an unusual set of circumstances whereby the device she was using was,  unknown to her, infected by malware, taken into a repairer that evening for what was thought to be a different problem, and the lodgement email with the application attached was eight days later sent and received by dint of technology and not human interaction when operability of the laptop was restored by the repairer,” the commission said.

Thus, it ruled in favour of the employee and granted an extension of her unfair dismissal application.

Recent articles & video

The pros and cons of learning with a hybrid workforce

Businesses question impact of IR reforms amid 'flawed data'

Assistant manager unaware of firing until she got separation certificate

When does casual work become 'regular and systemic' to trigger unfair dismissal?

Most Read Articles

Melbourne firm introduces 'weight management' benefit

What HR needs to know about the latest tranche of industrial relations law reforms

AFCA enhances leave policies