Gregory McDonald v Super Butcher Australia Pty Ltd

[2012] FWA 9973

[2012] FWA 9973

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gregory McDonald
v
Super Butcher Australia Pty Ltd
(U2012/12645)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 NOVEMBER 2012

Summary: whether application competent - extension of time - current application was a second application - application lost - application taken as being made within time - alternative position - exceptional circumstance.

[1] This matter concerns an apparent jurisdictional obstacle to an application by Mr Gregory George McDonald who has made an application under s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy in relation to his dismissal by Super Butcher Australia Pty Ltd (“the Respondent”). The dismissal was given effect on 23 July 2012.

[2] The jurisdictional issue concerned whether or not the application lodged by the Applicant was within the requisite 14 day statutory time period. The file as allocated to me was marked as requiring a determination in respect of this matter as it contained an application which was date stamped some two weeks or so after the date on which it should have been made. The relevant details are set out below.

Legislative provisions

[3] Section 394 of the Act relevantly provides as follows:

394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 14 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] On its face, the application before me was lodged and date stamped by the Fair Work Australia (“FWA”) Service Team on 21 August 2012. This is twenty-nine days from the date the dismissal took effect and some fifteen days beyond the date on which the application should have been lodged to be compliant with s.394(2)(a) of the Act.

[5] The application as lodged, however, was not the Applicant’s initial application, it was the second application.

[6] The facts in this matter, to which there is no contest, were that the Applicant lodged his initial application on 2 August 2012 (and enclosed a cheque for payment of the applicable application fee).

[7] The Applicant claims his application was misplaced by the FWA Service Team, necessitating the making of a second application (on 21 August 2012).

[8] The Applicant brought in aid of his claim a copy of the Australia Post Registered Post Delivery Confirmation - Advice Receipt (“the delivery receipt”).

[9] That delivery receipt was signed by an identified FWA Service Team member. The delivery receipt is date stamped “2 August 2012,” as is easily observed upon inspection. The Applicant also claims the Service Team received his cheque for a payment for the application fee (along with his application on 2 August 2012) but that cheque was destroyed by the FWA Service Team for reason it could not be associated with the misplaced application.

[10] The Applicant claims he was advised to make a further application. He did so, and this became the second application referred to above and lodged on 21 August 2012, and date stamped as such.

[11] There is no challenge to the Applicant’s claims which are coherent and supported by the delivery receipt signed on 2 August 2012.

[12] For this reason, no issue arises as to the competence of the application for purposes of s.394(2)(a) of the Act: the initial application was made on 2 August 2012. The fact that the application having been made pursuant to the Act was then misplaced by those administering the received application does not detract from the fact the application was made, and had been made, consistent with the requirements of s.394(2)(a) of the Act.

[13] The second application does not affect the status of the initial application, irrespective of the initial application being misplaced by the FWA Service Team.

[14] By way of conclusion, there is no requirement for me to exercise the discretion as set out at s.394(2)(b) and s.394(3) of the Act. The Applicant’s initial application was lodged within time. The substantive application will now proceed to arbitration.

[15] In the alternative, and out of an abundance of caution, if I am wrong and cannot rely on the existence of the initial application as made on 2 August 2012, I allow the second application despite it being made some 15 days beyond the date stipulated at s.394(2)(a) of the Act. This is because the explanation for the delay, which resides in the loss of the initial application by a third party - the FWA Service Team - constitutes an exceptional circumstance for the purposes of s.394(3) of the Act. None of the other considerations concerning s.394(3)(b)-(f) of the Act have any material bearing on the ultimate determination: there is no prejudice to the Respondent and other statutory concerns are of neutral effect (e.g. s.394(3)(c) and (e) or else irrelevant (e.g. s.394(3)(b) and (f) of the Act) regarding the ultimate determination to be reached.

[16] I add that this matter was discharged by way of an informal conference in lieu of a listed day for hearing (which was adjourned as a consequence). The employer consented to the approach and the terms of my decision, which I put to him once the relevant body of evidence was at hand.

SENIOR DEPUTY PRESIDENT

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