Alan Aslan v Jag Traffic Pty Ltd

[2015] FWC 1442

[2015] FWC 1442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Aslan
v
Jag Traffic Pty Ltd
(U2015/2022)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Alan Aslan alleged that the termination of his employment by Jag Traffic Pty Ltd on 15 December 2014 was unfair.

[2] His unfair dismissal application lodged on 6 January 2015 was not made within 21 days of the date of the dismissal. Mr Aslan’s application was one day late.

[3] At the hearing, I granted permission for Jag to be represented by a legal practitioner. The application was not opposed by Mr Aslan. Jag sought permission to enable it to tender its submissions. It submitted that Jag, which had no human resources personnel nor any experience with the Fair Work Commission, was not able to represent itself. I considered that it would be unfair not to permit Jag to be represented in those circumstances.

[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

(a) the reason for the delay;

[5] Mr Aslan said that he contacted the Commission 2-3 days after the dismissal and a form was sent out to him.

[6] Mr Aslan said that he posted his application to the Perth Registry on the day after he signed the form on 30 December 2014 (Mr Aslan said that he gave the letter to his partner and she had posted it the next day). Mr Aslan said the reason for the delay was Australia Post’s failure to deliver the letter on time.

[7] It was put to Mr Aslan that in fact the letter was not posted until 2 January 2015. The envelope in which Mr Aslan’s application was sent to the Commission has a postage paid stamp of 2 January 2015.

[8] The real reason for the delay was that the person Mr Aslan entrusted to post the letter did not do so in a timely fashion. No explanation for this was provided by Mr Aslan, in fact, Mr Aslan was reluctant to accept that the letter was not posted until 2 January 2015, even when shown a copy of the envelope.

[9] Had Mr Aslan posted his application when he signed it, it would have arrived on time. Mr Aslan’s reason for the delay does not weigh in favour of granting an extension of time.

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

[10] Mr Aslan knew of the dismissal the day it took effect. This weighs against the granting of an extension of time.

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

[11] Apart from asking his employer “where does this leave us” Mr Aslan did not take any steps to dispute the dismissal apart from lodging this application to dispute his dismissal. This criterion is neutral.

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

[12] There was no submission that the granting of an extension of time would prejudice the employer. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[13] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Aslan’s claim has no prospects of success, this weighs in favour of granting an extension of time.

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

[14] No submissions were made on this criterion.

Conclusion

[15] Mr Aslan’s only explanation for the delay was the failure of Australia Post to deliver the letter by the next business day. It is not unusual or uncommon for letters sent by ordinary post not to be delivered until the next business day. Australia Post does not guarantee next day delivery for ordinary post.

[16] I do not consider that Mr Aslan has established that there are exceptional circumstances warranting the granting of an extension of time. His application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

A. Aslan on his own behalf.

E. Hartley for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

19 February.

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