Dennis Borg v Australia Post

[2014] FWC 1219

[2014] FWC 1219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennis Borg
v
Australia Post
(U2013/17251)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 5 December 2013, Mr Dennis Borg made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009.

[2] Mr Borg’s employment with Australia Post ended on 21 May 2009. The applicant was therefore not made within 21 days of the date of the dismissal. 1

[3] Mr Borg first lodged an unfair dismissal application in 2011. His application for an extension of time was heard by Commissioner Harrison on 16 September 2011 and he did not grant Mr Borg an extension of time. Commissioner Harrison decided as follows:

“I have concluded that it would in fact be unfair to Australia Post to extend time given that over two years has passed, which is a significant period in which Australia Post would be severely prejudiced in defending its position. I note and I have considered the submissions made by Mr Borg in the fact that he submitted that he referred to correspondence between himself and the union at the time, and also to his mental state at the time of the termination. However, on both points, no evidence has been presented to support those two submissions. Furthermore, I am not satisfied that the substantive merits of the application would be such that the matter ought to be considered in terms of a substantive hearing.” 2

[4] On 25 February 2013, Mr Borg filed another unfair dismissal application. That matter was heard by Senior Deputy President Drake on 22 April 2013 who dismissed the application.

Conclusion

[5] Commissioner Harrison refused Mr Borg an extension of time to lodge his application. That decision was not appealed. In those circumstances a fresh application is not the mechanism to seek to have Commissioner Harrison decision reversed.

[6] If I am wrong and I am required to consider whether Mr Borg should be given an extension of time, I would decline to exercise my discretion to grant such an application. I have had regard to the matters put by Mr Borg in his application however nothing in that material persuaded me to extend time by nearly five years. The matters raised by Mr Borg are the same matters he raised with Commissioner Harrison and Senior Deputy President Drake and nothing put before me by Mr Borg in his most recent application would lead me to a different conclusion to that reached by Commissioner Harrison and Senior Deputy President Drake.

[7] Therefore Mr Borg’s application is dismissed.

DEPUTY PRESIDENT

 1 Note at the date of the dismissal ss.643(14) and (15) of the Workplace Relations Act 1996 provided a 21 day time limit for lodging applications.

 2   Transcript of Hearing - 16 September 2011 at PN 43.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR547917>