Fabian Robinson v The Trustees for CrossKeys Unit Trust T/A CrossKeys Recruitment

[2013] FWC 920

[2013] FWC 920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fabian Robinson
v
The Trustees for CrossKeys Unit Trust T/A CrossKeys Recruitment
(U2012/15125)

COMMISSIONER BISSETT MELBOURNE, 12 FEBRUARY 2013

Application for unfair dismissal - extension of time - application lodged within time.

[1] Mr Fabian Robinson (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he has been unfairly dismissed from his employment with CrossKeys Unit Trust T/A CossKeys Recruitment (the Respondent).

[2] The Applicant says in his application that his dismissal took effect on 9 November 2012. 1 The application was lodged with Fair Work Australia (now the Fair Work Commission) on 19 November 2012. In responding to the application the Respondent says that the Applicant was notified of the dismissal on 31 October 2012 and that it took effect upon delivery of the termination letter on or about 1 November 2012.2

[3] On the basis of the Respondent’s response form, the application has been made outside the 14 day period provided for making an application under s.394 of the Act. For the Commission to have jurisdiction to deal with the application an extension of time for making the application is required.

[4] On 10 January 2013 directions were issued for the filing of submissions and related material and hearing of the jurisdictional objection. These directions were subsequently amended on 25 January 2012 to provide the Applicant with more time to lodge his material.

[5] In response to the submissions of the Applicant, the Respondent advised that it conceded that the Applicant’s application was made within the statutory period provided for in the Act and that the Respondent was willing for the Commission to determine the matters ‘on the papers’ and without recourse to a hearing. 3 The Applicant subsequently advised he was also content for the Commission to determine the extension of time on the basis of the written material submitted.

What was the date of dismissal?

[6] The Applicant has provided a copy of his letter of termination of employment. That letter is dated 2 November 2012. 4 The Applicant was provided with two weeks’ pay in lieu of notice. Further, the Applicant says that the letter was sent to him by express post and that he received the express post envelope on 5 November 2012. In support of this the Applicant has provided a copy of the express post envelop, including its bar code number, and an email from an Australia Post Customer Service Consultant detailing the tracking details for that envelop which indicate that the envelop ‘arrived at [the Australia Post] facility’ and was ‘delivered’ on 5 November 2012.

[7] The Respondent does not dispute any of this material.

[8] The 2 November 2012 was a Friday. The Respondent does not dispute it sent the notice of termination of employment by post. It is well known that an express post envelop does not result in same day delivery of mail. I therefore accept that the Applicant could not have received the letter of termination of his employment until at least the following Monday, 5 November 2012. I therefore find that the Applicant became aware of the termination of his employment on 5 November 2012.

[9] A dismissal does not take effect until such time as it is communicated to the employee whose employment is being terminated. 5 In this matter I accept that it was not communicated to the Applicant that his employment had been terminated until 5 November 2012.

[10] I therefore find that the date of termination of employment of the Applicant is 5 November 2012.

Is the application made outside the statutory time period?

[11] The application for relief from unfair dismissal was made on 16 November 2012. The date of termination of employment is 5 November 2012.

[12] The application is therefore made within the 14 day time period required by the legislation at that time.

[13] An extension of time for making the application is not required.

[14] The jurisdictional objection of the Respondent is therefore dismissed.

[15] The file shall be returned for the issuing of directions to deal with the substantive application.

COMMISSIONER

Written submissions:

Applicant: 30 January 2013.

Respondent: 1 February 2013.

 1   See Form F2 - Application for Unfair Dismissal Remedy

 2   See Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy.

 3   Respondent’s email dated 1 February 2013.

 4   Applicant’s submission dated 30 January 2013.

 5   Burns v Aboriginal Legal Service of Western Australia (Inc.), Print T3496, [24], 21 November 2000 (Williams SDP, Acton SDP, Gregor C)

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