Aaron Mandavy v Process Resource Group Pty Ltd

[2014] FWC 3089

[2014] FWC 3089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Mandavy
v
Process Resource Group Pty Ltd
(U2014/6436)

COMMISSIONER WILLIAMS PERTH, 12 MAY 2014

Termination of employment.

[1] Mr Aaron James Napier (the Applicant), has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Process Resource Group Pty Ltd (the Respondent).

[2] Mr Napier was apparently dismissed on 18 March 2014.

[3] An initial review of the application indicated that it had been lodged on 11 April 2014 which would have been more than 21 days after the dismissal took effect. If this was the case the application could not proceed unless a further period is allowed for the application to be made because of the requirements of s.394(2)(a) which is set out 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.

(2) The application must be made:

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[4] Given these circumstances I asked the Applicant to make a submission on allowing a further period for this application to be made.

[5] In his submission the Applicant explained that on 8 April 2014 he sought to lodge an application using the Commission’s online e-filing system. For reasons unknown the application was not lodged in a complete manner on that date and the Commission received only some appendices that the Applicant had attached to his application.

[6] The Applicant explained further that on the following day, 9 April 2014, a staff member from the Commission rang him regarding this and asked him to send the other pages of his application by e-mail. The Applicant complied with this request on 11 April 2014.

[7] I have reviewed the Applicant’s file and confirm that on 8 April 2014 at 9:27pm the Applicant, through the Commission’s online e-filing system, did lodge a document which was apparently to be an attachment identified as a Memo that dealt with his dismissal. That lodgement included details of the Applicant’s name and contact particulars and identified the Respondent. Further, the Commission’s staff have confirmed, and it was recorded at that time, that a phone call to the Applicant was made on 9 April 2014 advising him that his full application had not been received.

[8] Considering the above information I am satisfied that the Applicant had lodged his application on 8 April 2014 albeit in an incomplete form. The Commission has the power under section 586 to waive any irregularity in the form or manner in which an application is made and in this case to the extent that it might be said to be necessary I do so.

[9] Consequently it is my decision that the application has been made within the 21 day statutory time limit. If however I am wrong on that point, I am satisfied in this instance that the technical problems with the Commission’s online e-filing system is an acceptable reason for the delay in making the fully completed application. Considering the other matters to be taken into account in s.394(3) I am satisfied there are exceptional circumstances in this case and that this is an appropriate case in which the Commission should exercise its discretion to allow a further period for the application to be made. I allow a further period up to the date of lodgement of the application for the Applicant to make this application.

[10] Consequently this application will now be passed to a Fair Work Conciliator who will advise the parties in due course of the date and time for a conciliation conference to be held.

COMMISSIONER

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