Diego Uribe Posada v Morris Corporation (Aust) Pty Ltd

[2015] FWC 3061

[2015] FWC 3061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diego Uribe Posada
v
Morris Corporation (Aust) Pty Ltd
(U2015/3657)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Diego Uribe Posada alleged that the termination of his employment by Morris Corporation (Aust) Pty Ltd on 10 February 2015 was unfair.

[2] His unfair dismissal application lodged on 4 March 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Uribe Posada lodged documents with the Commission on 26 February 2015. Included with those documents was a letter addressed to the Commission which set out why he considered he had been dismissed unfairly. He asked that his unfair dismissal be resolved in a fair manner. Mr Uribe Posada paid the filing fee. The Commission sent Mr Uribe Posada an email on the same day acknowledging receipt of the documents. He was told that the documents would be manually checked and he would be advised of any anomaly by email.

[6] As I advised the parties at the hearing, the records of the Commission disclose that Mr Uribe Posada’s application was not logged and it was allocated to the Perth Registry completed folder. As a consequence Mr Uribe Posada was not alerted in the normal way that he had not lodged a form F2. On 4 March 2015, Mr Uribe Posada contacted the Commission to make sure his application form was attached and that alerted the Commission staff to the matter. He was then told that no form F2 was filed and he was sent an application form which he filed the same day.

[7] Mr Uribe Posada submitted that he had followed all the instructions on the Commission’s website and he thought that all his documents had been uploaded.

[8] Morris Corporation submitted that this did not weigh in favour of a finding of exceptional circumstances. It submitted that Mr Uribe Posada’s failure to attach all the relevant documents was not exceptional.

[9] I do not agree. It is unusual for the Commission not to immediately alert an applicant that the documents lodged do not comply with the Commission’s Rules. Had the Commission done what it told Mr Uribe Posada it would do in its email on 26 February 2015, Mr Uribe Posada would have been alerted in time to enable him to lodge his application within time.

[10] I consider that the reasons for the delay in this case strongly weigh in favour of extending time.

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

[11] Mr Uribe Posada knew of the dismissal when it took effect. No submissions were made on this criterion and I consider it to be neutral.

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

[12] No submissions were made on this criterion and I consider it to be neutral.

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

[13] Morris Corporation submitted it would be prejudiced because other employees will find out about this case and may be more inclined to lodge out of time. I do not accept this submission. Mr Uribe Posada’s situation is unusual and I do not consider that other applicants who failed to lodge for other reasons could rely on this case to support a finding of exceptional circumstances. The lack of prejudice to Morris Corporation weighs in favour of granting an extension of time.

(e) the merits of the application;

[14] Morris Corporation dismissed Mr Uribe Posada for safety breaches. It submitted that Mr Uribe Posada had previously been warned about safety matters. Mr Uribe Posada denied breaching the safety procedures and said he was working as he had been instructed to work.

[15] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[16] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[17] I find that Mr Uribe Posada lodged his application late due to the failure of the Commission to notify Mr Uribe Posada that his application was incomplete in time for him to lodge a completed application in time. This is unusual. Given this and the lack of any criterion weighing against a finding of exceptional circumstances I find that there are exceptional circumstances. I also consider that I should exercise my discretion to extend time. It would be unfair to Mr Uribe Posada to not permit him to have his claim that he was unfairly dismissed determined in circumstances where on his own uncontested evidence he followed all steps required of him to lodge his application in time.

DEPUTY PRESIDENT

Appearances:

D. Posada on his own behalf.

C. Duke-Smith for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

1 May.

 1   [2011] FWAFB 975

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