Mr Frank De Jonge v Bluestone Mines Tasmania Joint Venture Pty Ltd

[2016] FWC 4952

[2016] FWC 4952

FAIR WORK COMMISSION

DECISION

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

Mr Frank De Jonge
v
Bluestone Mines Tasmania Joint Venture Pty Ltd
(U2016/7730)

COMMISSIONER ROE MELBOURNE, 22 JULY 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr De Jonge was employed by Bluestone Mines Tasmania Joint Venture Pty Ltd (Bluestone Mines) from October 2012 until his dismissal for alleged misconduct effective from 26 May 2016. The application for unfair dismissal was posted by ordinary mail by Mr De Jonge’s legal representative on 2 June 2016 and it was received by the Fair Work Commission on 17 June 2016. The Application was made one day after the 21 days allowed under the legislation.

[2] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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.

[3] It is not contested that:

● Mr De Jonge vigorously contested the proposed dismissal in the lead up to it occurring. His legal representative was involved in this process. He gave notice that the dismissal would be contested if it occurred.
● There was no other action to dispute the dismissal after it occurred other than to lodge the application.
● Mr De Jonge was aware of the dismissal at the time it took effect.
● Mr De Jonge instructed his representative to prepare an unfair dismissal application on 26 May 2016, the day of the dismissal.
● Mr De Jonge’s legal representative provided him with a draft application on 1 June 2016.
● Mr De Jonge instructed the legal representative to lodge the application on 2 June 2016.
● The legal representative lodged the application by ordinary post on 2 June 2016.
● The Fair Work Commission provided Mr De Jonge with a copy of the envelope the application arrived at the Fair Work Commission in. That envelope is post marked 2 June 2016. The envelope is correctly addressed to the Fair Work Commission at GPO Box 1323M in Hobart.
● On the back of the envelope is a stamp “Tasmanian Greens Ltd, GPO Box 1132 Hobart Tas 7001.” The legal representative gave evidence that the stamp was not on the back of the envelope when it was posted.
● Neither Mr De Jonge nor the legal representative took any action to check with the Fair Work Commission whether or not the application had been received in the period between the posting of the application and its receipt by the Fair Work Commission on 17 June 2016.

The reasons for delay

[4] The letter was posted in regional Tasmania and addressed to a GPO Box in Hobart Tasmania. The Australia Post Corporation (Performance Standards) Regulations 1998, as amended 4 January 2016, provide that Australia Post must deliver at least 94% of all letters lodged and appropriately addressed within 4 business days after the day of posting (Clause 6). Australia Post advise consumers that the estimated delivery time from regional Tasmania to an address in Hobart is 2 to 6 days. In this case the letter took 15 days to be delivered.

[5] I am satisfied that the letter was wrongly delivered to the Tasmanian Greens and this was the likely cause of the delay. I am satisfied that the delay was the responsibility of Australia Post and not of the Applicant or his representative. I am satisfied that the reason for the delay, that is the failure of Australia Post to deliver in reasonable time is a reason which strongly favours a finding of exceptional circumstances. Mr De Jonge took reasonable steps to ensure that the application was made within time. The application was posted 14 days prior to the expiry of the 21 day period.

[6] Less than 6% of regular mail will be delivered outside of the performance standards. A failure to deliver outside of performance standards is an unusual or uncommon circumstance. It is out of the ordinary course and it is not something which is normally encountered. In this case the failure was at the extreme end.

[7] I reject the argument that Mr De Jonge and/or his representative should have lodged the application by express post or fax or on line. It would be a serious contraction of access to justice to exclude the capacity for people to lodge applications by ordinary mail. Many applicants do not have familiarity or access to these alternative means for delivery. In this case a large number of documents were included with the application. The fact that the Performance Standard regulations have recently been reduced by significantly increasing (from two to four in the circumstances of this case) the number of days available for delivery has the effect of reducing access to justice. However, Mr De Jonge lodged his application in plenty of time even after allowing for those increased times.

[8] I also reject the argument that Mr De Jonge should have checked whether or not his application had been received by the Fair Work Commission. There is nothing unreasonable about an applicant assuming that an application will be received when it is lodged using the approved methods within reasonable time. If I am wrong about this matter, in the circumstances of this case the application was lodged by a legal representative and any failure to follow up would be a representative error.

The other factors

[9] It is not suggested that Mr De Jonge was aware of the dismissal after it had taken effect. This is therefore a neutral factor in this case.

[10] Mr De Jonge vigorously contested the proposed dismissal in the lead up to it occurring. His legal representative was involved in this process. He gave notice that the dismissal would be contested if it occurred. He took no action after the dismissal other than to lodge the application. However, given that the application was dispatched so soon after the dismissal this cannot be seen as a factor standing against the finding of exceptional circumstances. It is a neutral factor in the circumstances of this case.

[11] The application was only one day late. There is no prejudice to the employer. This is a neutral factor.

[12] The employer has provided substantial evidence in support of their contention that they had a valid reason for the dismissal and that there was a fair process. Mr De Jonge argues that the dismissal was harsh and that it was procedurally unfair. I have not heard all of the evidence. I am not able to reach a conclusion about the merits other than to conclude that the case is not hopeless. This is a neutral factor.

[13] This case depends upon its own particular facts particularly those associated with the failure of Australia Post to meet reasonable standards. I do not consider that my decision would be disharmonious with other decisions about related matters. I do not consider there is any issue of fairness as between the person and other persons in a similar position.

Conclusion

[14] The reasons for period of delay of one day strongly support a finding of exceptional circumstances. Considering all of the factors in Section 394 leads me to conclude that there are exceptional circumstances which justify an extension of time in this case. I consider it appropriate to grant the extension of time and allow the application to proceed.

COMMISSIONER

Appearances:

Mr J Zeeman appeared for the Applicant.

Mr S White appeared for the Respondent.

Hearing details:

2016

Melbourne by telephone

July 21

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