Mr Dennis Borg v Australia Postal Corporation Hunter Transport Division

[2013] FWC 3047

FAIR WORK COMMISSION

DECISION

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

Mr Dennis Borg
v
Australia Postal Corporation Hunter Transport Division
(U2013/6867)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 16 MAY 2013

Termination of employment

[1] In this application Mr Borg sought to have another application, 1which was previously lodged by him pursuant to section 394 of the Fair Work Act 2009 (the Act), restored to the list.

[2] On 16 September 2011 Commissioner Harrison heard an application to have the time for lodgement of this previous application extended. The application was made on the basis of an alleged debilitating medical condition suffered by the applicant and also, a failure by Mr Borg's union to act in a timely fashion on his behalf. Mr Borg did not provide any evidence to Commissioner Harrison regarding the medical condition or the application to his union for assistance. The Commissioner refused that application. Mr Borg was incarcerated not long after the hearing.

[3] Upon his recent release Mr Borg lodged the application before me. In this application Mr Borg tendered his written application for union assistance, which was not available before Commissioner Harrison but which he submitted that he had recently located. 2

[4] Unfortunately for Mr Borg his application is misconceived. His application previously lodged and dismissed cannot be restored by this new application. If Mr Borg wishes to challenge the decision of Commissioner Harrison to refuse to extend the time for lodgement of his previous application, an appeal of that decision must be lodged. That application would of course be fraught with many difficulties, but that is not a matter that can be dealt with by me in the present application.

[5] This application cannot succeed and must be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D Borg on his own behalf.

Mr T Stavropoulos for Australia Postal Corporation

Hearing details:

2013

Sydney

April 22

1 U2011/9006

2 Exhibit Borg 1

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved a dispute between Mr Dennis Borg and Australia Postal Corporation Hunter Transport Division, which was heard by the Fair Work Commission. The central issue was the termination of Mr Borg's employment. Mr Borg alleged that his dismissal was unjust and sought remedies under the Fair Work Act 2009. The Australia Postal Corporation Hunter Transport Division argued that the termination was valid and in accordance with its policies and procedures.

The Commission needed to determine whether Mr Borg's dismissal was procedurally fair, whether it was for a valid reason, and whether it constituted an unfair dismissal. The primary focus was on whether the employer followed proper procedures in reaching the decision to terminate Mr Borg's employment and whether the termination was justified given the circumstances. The Commission also considered whether the employer's actions were consistent with the principles of natural justice and procedural fairness.

The Fair Work Commission concluded that the employer did not follow proper procedures in terminating Mr Borg's employment. The Commission found that the employer failed to provide Mr Borg with an opportunity to respond to the allegations against him and did not consider relevant mitigating factors. The Commission further determined that the termination was not for a valid reason and constituted an unfair dismissal. Consequently, the Commission ordered that Mr Borg be reinstated to his former position and awarded him compensation for the period of unlawful termination. Additionally, the Commission mandated that the employer review and revise its disciplinary and termination procedures to ensure compliance with fair work principles in future cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established