Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Raoul Caire (the Applicant) in respect of dismissal by Imscan Technologies (the Respondent).

[2] At the conclusion of the hearing I decided to accept the application for extension of time. This is an edited version of the reasons given.

[3] The Application was received by post at FWC on 14 December 2012. The envelope containing the Application has the correct postage stamp and a clear and correct address for Fair Work Australia on it. The Application is signed and dated 28 November 2012.

[4] The Applicant was employed from either the 1st or the 4th of August 2008 until 27 November 2012. The Applicant was notified of the dismissal on Tuesday 27 November 2012 and the dismissal took effect on that date. The Application was therefore made three days late.

[5] The employer sent a letter to the Applicant on 27 November 2012 advising that his employment is terminated with immediate effect. The letter alleged gross misconduct. The employer stated that they were paying four weeks wages. The dismissal letter advised that the Respondent rejected the matters raised by the Applicant in a letter dated 25 November 2012, including allegations of underpayment. The letter referred to a meeting between the Applicant and the Respondent on Friday 23 November 2012. The Applicant says that the meeting on 23 November 2012 involved a discussion about underpayment particularly of superannuation entitlements. The Respondent paid $7,176.59 in underpaid superannuation in respect to the previous four years and advised the Applicant of this payment in a letter dated 23 November 2012.

[7] The matter was the subject of a conciliation conference and an in principle resolution was reached subject to confirmation. The Applicant advised that he did not agree to the draft terms of settlement when they were forwarded to him by the conciliator.

[8] The Applicant provided evidence that a postal money order was drawn on Wednesday 28 November 2012, the day after the dismissal, being an amount for the filing fee before Fair Work Australia as it then was. The Applicant provided an Australia Post receipt to this effect. The Applicant says that he posted the application and the fee to the Fair Work Commission some six or seven days later when he and his wife went for a walk on Tuesday 4 December or Wednesday 5 December.

[9] The Applicant says that he did not post the letter immediately after completing the form and obtaining the postal order for the filing fee as he wished to consult an accountant about the details of his claim especially concerning alleged underpayments. He says that he did consult the accountant a few days later.

[10] The evidence about the particular date was somewhat uncertain, however, the Applicant gave clear evidence that he posted the Application during the week following the week of the dismissal. The evidence of the Applicant is not challenged. Even if we assume it was posted on Friday 7 December 2012 it took a week for the Application to be received by FWC.

[11] The Applicant says that the only possible explanation as to why the Application was not stamped as received until 14 December 2012 is either delays in the post or that there were delays in processing in the Fair Work Commission.

[12] I am aware that the FWC has a system whereby unfair dismissal applications received by mail are date stamped upon receipt. There is no basis for a conclusion that the delay is caused by FWC administrative error.

[13] To be consistent with the legislative requirement the Application had to be made by 11 December 2012 to be on time. The Applicant says that it is reasonable to expect that if the Application is mailed in Melbourne between 4 and 7 December 2012 that it would be received by the Melbourne FWC office by 11 December 2012.

[14] Section 394(2) of the Fair Work Act 2009 (the Act) provides:

"(2) [Standard time limit] The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3)."

[15] Subsection 394(3) provides:

"(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position_._"

[16] I am satisfied in respect to criteria in Section 394(3)(b)-(f) that:

• On his own submission the Applicant was aware of the alleged dismissal on the day that it took place. This is therefore a neutral factor in considering exceptional circumstances.

• The Applicant did take some action to dispute the dismissal by taking steps to lodge an unfair dismissal application. I accept the uncontested evidence of the Applicant that he took the first steps in this regard the day after the dismissal. He signed and dated the form on 28 November 2012. He finished an attachment to the form setting out the events leading to the termination on 29 November 2012. He obtained a postal order for the filing fee from the local post office on 28 November 2012. The Applicant did not take action to dispute the dismissal directly with the employer after it took place. However, the evidence satisfies me that in the circumstances it was reasonable for the Applicant to conclude that this would have been a pointless exercise. The Applicant had sought a meeting to discuss the issues of concern with the employer and had responded to matters in writing on 25 November 2012. The employer's response to this was to send a dismissal letter by email on 27 November 2012. This is a neutral factor in considering exceptional circumstances.

• There is no prejudice beyond the normal to the employer if the application for extension of time is granted given the relatively short period. The relevant information would still be available. The short period of delay and the lack of prejudice is a positive factor but not a major factor in considering exceptional circumstances.

• The Applicant disputes the validity of the reasons given for termination. The Respondent stands by the reasons given for termination. There is a strong factual dispute between the parties. There is no basis upon which I could conclude that the Application is without merit. The Applicant has convinced me that he has an arguable case. As I have not had the benefit of all of the evidence I make no conclusions about the merits of the case except to observe that on the material before me the case is not without merit. This is a neutral factor in considering exceptional circumstances.

• There are no other persons of which I am aware in a similar position.

[17] The most relevant consideration in these circumstances is the criterion in Section 394(3)(a) that is the reasons for delay.

[18] The Australia Post delivery standard for standard letters within the metropolitan area is the next business day. Australia Post is required to deliver 94% of domestic letters on time. I am satisfied that a delay of a week, that is the time between when the Applicant says he posted the letter and the date when it was received by Fair Work Commission, is an exceptional delay.

[19] I am satisfied based upon the evidence of the Applicant and the supporting evidence of the dates on the Application Form and the post office receipt for the money order for the filing fee that the Applicant did post the Application between the 4th and the 7th of December 2012 which is one week after the dismissal took effect.

[20] I am satisfied that the postal delay in this case is an exceptional circumstance. Taking all of the matters in Section 394(3) into consideration and particularly the reasons for delay in the context of the efforts made by the Applicant to make the Application within the statutory time period and the lack of particular prejudice to the Respondent due to the short period of the delay beyond the fourteen day period I am satisfied that there are exceptional circumstances justifying extending the period for the application to be made.

[21] I wish to acknowledge that the efficient and fair hearing of this matter was assisted by pro-bono lawyers who sought and were granted permission to appear.

[22] The extension of time having been granted the matter will now be referred to another member of the Commission for the hearing of the merits of the application.

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