Fair Work Act 2009_

s.394 - Unfair dismissal

[1] Mr Daniel Ruthven (the Applicant), has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Alcom Fabrications.

[2] Mr Ruthven was dismissed on 14 January 2014 and was notified of the dismissal on that day. Mr Ruthven's application was made on 7 February 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s.394 below.

"s. 394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

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

(3) 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."

[5] Submissions have been provided by Mr Ruthven regarding allowing a further period for his application to be made.

[6] Mr Ruthven says that he posted the application to the Commission with enough time for it to be received within 21 days from the date he was dismissed. He says he allowed four days for the post which he believed should have been adequate.

[7] Mr Ruthven also explains that he had rang the Commission and spoke to someone who advised him that he may need to get a legal representative before progressing his application and so he spent some time trying to arrange that until he realised that he was able to send his documents to the Commission without a representative and did then promptly do so as explained above.

[8] Reviewing the application that Mr Ruthven has made I note it was received by mail at the Commission's Registry on 7 February 2014.

[9] Mr Ruthven answered "yes" to Question 1.4 on the application form which asks whether the applicant is making this application within 21 calendar days of the dismissal of taking effect.

[10] I note the application is handwritten and is signed by the Applicant and dated 28 January 2014.

[11] Considering all of this information there is no reason not to accept the statement of Mr Ruthven as to when he posted his application. My conclusion is if Australia Post's usual next day capital city delivery had occurred this application would have been received within the 21 day time limit.

[12] In these circumstances I am satisfied there is an acceptable reason for the three day delay in making this application.

Any action taken by the person to dispute the dismissal

[13] The applicant has not otherwise sought to dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[14] I am satisfied there would be no prejudice to the employer caused by the three day delay in this instance.

[15] There is limited information regarding the merits of Mr Ruthven's application and without submissions from the Respondent regarding the merit of his application the question of merit must be taken to be a neutral factor in the extension of time question.

Fairness as between the person and other persons in a similar position.

[16] This is not a relevant factor in this matter.

[17] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make his application beyond the statutory time limit of 21 days. I have considered the information provided and in this case there is an acceptable reason for all of the short delay in making the application which weighs in favour of concluding that in this case there were exceptional circumstances. None of the other factors are significantly weighted against this conclusion.

[18] Given there are exceptional circumstances I have decided that I shall exercise the discretion available to allow a further period for this application to be made. An order to that effect will be issued in conjunction with this decision. This application will be referred to a Fair Work Commission Conciliator and the parties will be advised in due course of a date and time for a conference to be held to deal with the application.

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