Mr Adam Kibblewhite v Canberra Aluminium Centre Pty Ltd T/A Alucom

[2014] FWC 4350

[2014] FWC 4350 [Note: An appeal pursuant to s.604 (C2014/5250) was lodged against this decision - refer to Full Bench decision dated 25 September 2014 [[2014] FWCFB 6732] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Adam Kibblewhite
v
Canberra Aluminium Centre Pty Ltd T/A Alucom
(U2014/6891)

COMMISSIONER DEEGAN CANBERRA, 4 JULY 2014

Application for relief from unfair dismissal.

[1] On 23 April 2014 Mr Adam Kibblewhite (the applicant) lodged an application under s.394 of the Fair Work Act 2009, claiming that the dismissal from his employment with Canberra Aluminium Centre Pty Ltd T/A Alucom (the employer) was unfair. On 12 June 2014 I delivered a decision in transcript dismissing the applicant’s application. These are the written reasons for that decision.

Background

[2] The applicant was dismissed on 31 March 2014. He sent an application form previously used by the Australian Industrial Relations Commission (AIRC), by post to the Canberra Registry. The form was titled ‘Application for Relief in Relation to Termination of Employment’ and was received by the Registry on 23 April 2014. Attempts were made to contact the applicant by telephone. This was unsuccessful. Correspondence from the Registry was sent to the applicant’s postal address requesting that the applicant re-lodge his application utilising a Form F2. The completed F2 was received in the Canberra Registry on 31 April 2014.

[3] The matter was listed for an extension of time hearing to determine whether further time should be allowed for lodgement of the application. Directions were issued requiring the applicant and employer to lodge an outline of submissions and any witness statements relevant to the extension of time issue.

[4] At the hearing, which took place on 12 June 2014, the applicant stated that the application was late because he mistakenly believed that ‘lodging was the actual posting of it, not when you guys received it’ 1 and that he had posted the application 17 days after his dismissal. When asked why he thought that posting the document would amount to lodging it the applicant replied ‘I didn’t research and that was my mistaken belief.’2 The applicant also stated that he did not take the decision to make an application until he formed a belief that his former employer had given him a bad reference. With respect to the AIRC form, the applicant indicated that it was the only one he could find on the website, and that when he googled it, ‘that’s what came up.’ The applicant could not remember whether he had googled ‘Fair Work’ or ‘Industrial Relations.’

[5] Ms Layton, who appeared for the employer, did not wish to ask the applicant any questions about the reasons for his delay in lodging.

Consideration

[6] The legislation relevantly provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as FWC allows under subsection (3).

(3) FWC may allow a further period for the application to be made by a person under subsection (1) if FWC 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.

[7] Although the application was not made on the correct form, the relevant information was provided, and it was clear that the applicant was seeking to make a claim for unfair dismissal. I am prepared exercise my discretion and waive the irregularity in the form in which the application was made, pursuant to s.586(b), meaning that the date of lodgement was 23 April 2014.

[8] It is for the applicant to satisfy the Commission that exceptional circumstances exist that warrant the Commission allowing further time for lodgement of an application for an unfair dismissal remedy. The main reason given by the applicant for the delay in lodging the application was that he was under a mistaken belief that the act of posting the application equated to lodging it. Mistaken belief about the requirements for lodgement or ignorance of the relevant statutory timeframes is not something that is unusual or out of the ordinary.

[9] The applicant was asked why he had not taken the trouble to deliver the document to the Commission given the time period had almost expired. He gave no reason for choosing to send, rather than deliver, the document other than his belief that posting equated to lodgement.

[10] While I accept the delay in lodgement was not significant, it was incumbent on the applicant, who was aware of the timeframe for making the application, to ensure that the application was lodged within that period of time. The application was sent, by ordinary post, the day before Good Friday. The 21 day time limit expired Easter Monday. By virtue of s.36(2) of the Acts Interpretations Act 1901, lodgement of the application would have been within time had the application been received by the Commission on Tuesday 22 April 2014. It was not.

[11] There have been a number of decisions of this tribunal dealing with applications made by post failing to arrive within the relevant time period. Exceptional circumstances have been found in cases where the mail has not been delivered within the usual or expected time frame and the delay is not, therefore, attributable to any action or inaction on the part of the applicant. 3 This is not the case in the current matter. In posting the application on 17 April, the applicant allowed only one business day for the application to be delivered prior to the expiration of the statutory time limit. The tribunal has found that a delay occasioned by an applicant posting the application too late to arrive within the time frame permitted is not an exceptional circumstance such that further time should be permitted for lodgement4. The application was sent by ordinary mail and not by next day delivery. It was, therefore, to be expected that the Commission would not receive the application in the timeframe required as there was a weekend and two public holidays in the days that followed. I do not accept that the applicant has put forward an acceptable reason for the delay in lodgement, given that he was well aware that he was required to lodge within 21 days.

[12] The applicant was dismissed with effect from 31 March 2014. While he indicated during the hearing that he informed his employer that he would lodge an unfair dismissal application, there was no other evidence before me that indicated that he had taken any other steps to dispute his dismissal.

[13] There would be little prejudice to the employer were further time allowed for lodgement, but this is not sufficient, of itself, to allow a further period within which to lodge.

[14] On the limited evidence as to the circumstances of the termination, I am unable to conclude that the application is completely without merit and this therefore is a neutral consideration. I make no finding as to merits.

[15] The matter of fairness as between the applicant and other persons in a similar position is of little relevance in the circumstances of this case.

[16] Taking into account all of the criteria outlined at s.394(3) of the Act, in particular the applicant’s failure to choose a lodgement method that would ensure the application was received in time, I am not satisfied that exceptional circumstances existed such that I should allow a further period for lodgement of the application.

[17] The application is dismissed.

Appearances:

The applicant in person.

Ms K Layton for the employer.

Hearing details:

2014.

Canberra:

June 12.

 1   Transcript PN7

 2   Transcript PN64

 3   Raoul Caire v Imscan Technologies[2013] FWC 3154; Jon Paul Ellis v TNQITC Pty Ltd[2010] FWA 2479; DanielRuthven v Alcom Fabrications[2014] FWC 2867

 4   Barbara Wiggins v Fielders[2012] FWA 10025

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