Ian Leonard v Jag Traffic Pty Ltd

[2015] FWC 1438

[2015] FWC 1438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Leonard
v
Jag Traffic Pty Ltd
(U2015/2023)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Ian Leonard 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 Leonard’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 Leonard. Jag sought permission to appear 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 Leonard said that he posted his application to the Perth Registry on the day after he signed the form on 30 or 31 December 2014. The reason for the delay was Australia Post’s failure to deliver the letter on time. Mr Leonard gave the application to another employee dismissed at the same time.

[6] Mr Leonard said that his dismissal caused him immediate financial difficulties because he was in the process of moving house and he needed to pay rent. As a consequence he did not have money for food and other necessities. He also said that his priority was finding another job. Mr Leonard said that being sacked ten days before Christmas for something he hadn’t done was exceptional.

[7] It was put to Mr Leonard that in fact the application was not posted until 2 January 2015.

[8] The real reason for the delay was that the person Mr Leonard entrusted to post the letter did not do so in a timely fashion. No explanation for this was provided by Mr Leonard.

[9] While I accept that the loss of his job so soon before Christmas had a significant effect on Mr Leonard, had he posted his application when he signed it, it would have arrived on time. Mr Leonard’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 Leonard 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] Mr Leonard denied the conduct that lead to his dismissal at the meeting with his employer.

[12] This criterion is neutral.

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

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

(e) the merits of the application;

[14] 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 Leonard’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.

No submissions were made on this criterion.

Conclusion

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

[16] It is also not unusual for the loss of a job to cause significant financial difficulties for employees. I understand why Mr Leonard gave priority to finding a new job. However he was able to complete the form by 30 December 2014. Had Mr Leonard lodged his application when he completed the form, it would have arrived on time. I do not consider that Mr Leonard has established that there are exceptional circumstances warranting the granting of an extension of time. His application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

I. Leonard on his own behalf.

E. Hartley for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link:

19 February.

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