Mr Jon Paul Ellis v Tnqitc Pty Limited T/A Cairns Voice & Data

[2010] FWA 2479

[2010] FWA 2479

FAIR WORK AUSTRALIA

DECISION

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

Mr Jon Paul Ellis
v
TNQITC Pty Limited T/A Cairns Voice & Data
(U2009/14617)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 APRIL 2010

Extension of time application – exceptional circumstances – delay outside the Applicant’s control that led to late filing of the application – issues not within the power of the Applicant to influence.

[1] On 10 December 2009 Mr Ellis (“the Applicant”) made an application under s.394 of the of the Fair Work Act 2009 (“the FW Act”) alleging that he had been dismissed from his employment harshly, unjustly or unreasonably. The Respondent was TNQITC Pty Limited trading as Cairns Voice & Data.

[2] This is an application in respect of whether or not the application that is before me can be allowed, when it is not compliant with the requirements of s.394(2)(a) of the FW Act. The task that is before me is to determine whether or not, for the purposes of s.394(2)(b) of the FW Act I should allow the application nonetheless.

[3] Section 394(2) of the FW Act reads:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a 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] The application that is before me is some five days beyond the 14 day time limit stipulated in s.394(2)(a) of the FW Act. The evidence that has been led to me in this matter and which is uncontested, and perhaps because of its nature incontestable, is that the Applicant in effect posted his application in Cairns late on the day of 30 November 2010. He did so four days inside the statutory time period.

[5] In the circumstances that occurred, the application was not received and date stamped by Fair Work Australia (“FWA”) in Brisbane until 10 December 2010; some 10 calendar days later.

[6] The Applicant in this matter, for the purpose of explaining the reasons for the delay, gave evidence that he sealed and posted the letter immediately after his meeting with the Cairns Community Legal Centre on Monday 30 November 2009. During that meeting the Cairns Community Legal Centre advised him that the 14 day time period was not to be taken as 14 working days but was to be taken, correctly, as 14 calendar days.

[7] Upon being so advised, the Applicant gave evidence that he promptly posted his application forms later in that same day (30 November 2010). He then claims that it is by no fault of his own that the application did not reach FWA and was date stamped as having been received 10 calendar days after it was posted.

[8] In this explanation resides the claim, presumably, of the exceptional circumstance which should give me cause to allow the application despite it not complying with s.394(2)(a) of the FW Act. The Applicant’s reasons are reducible to his late application being the result of factors out of the Applicant's control.

[9] The Applicant acted within the statutory time period and did so reasonably, however because of the standard of service provided by Australia Post during that period, his correspondence to FWA did not traverse the distance between Cairns and Brisbane within the four calendar days that he reasonably anticipated it would.

[10] I accept the Applicant’s evidence on its face. There was no challenge to it, and the Applicant gave his evidence under oath and showed no equivocation in relation to the dates which he has given me, and the chronology which he has provided. I have no reason not to believe the Applicant’s account of the circumstances of the lodgement of his application.

[11] His narrative of events was continuous and was internally consistent. That is, for example, it appears reasonable that he was advised of the statutory time period applying to his application and acted promptly to post his application to FWA in Brisbane.

[12] Though it is a matter of some judgment on my part, is it reasonable for the Applicant in my view to have acted in the timeframe that he did and on the basis of a presupposition that ordinary mail would travel from Cairns to Brisbane within a four day window of time (and not the 10 calendar days it appears to have taken).

[13] If the Applicant had acted not to send the correspondence until later in the week, I would not exercise my discretion in his favour. If the Applicant had acted to post his application, for example, on the Wednesday or the Thursday of the first week of December 2009 after having been advised by the Cairns Community Legal Centre on 30 November that the time period in which he needed to make the application was 14 calendar days, a different situation would have arisen. The Applicant, in such circumstances, would have acted so as to ensure that, whilst he was advised of the time period within which he needed to initiate his claim, he had consciously acted so as to ensure that that statutory time period could not have been met.

[14] As it was, the Applicant acted promptly on Monday 30 November 2009, having been advised that same day of the statutory time period applying to his application, and he anticipated, reasonably in my view, that four working days would be sufficient for the correspondence to reach its destination in Brisbane. But for the apparent delay in the postal service between Cairns and Brisbane at this time, the Applicant’s application would have been lodged within the statutory time period.

[15] Such circumstances, where the Applicant acts at a reasonable juncture within the statutory time period but the application is not received by FWA for reasons that the Applicant could not himself influence, must constitute a species of exceptional circumstance contemplated by the FW Act.

[16] That is, the delay caused, it is assumed, by Australia Post, was a circumstance that was not within the power or the control of the Applicant to influence.

[17] The FW Act requires me to consider whether or not steps were taken by the Applicant to contest the dismissal, or in fact whether there was any action taken by the Applicant to dispute the dismissal itself. When I asked a question in related terms to the Applicant during his evidence-in-chief, he provided no indication of having mentioned his intention to make an unfair dismissal application at the time he was notified of his termination.

[18] His evidence, subsequently, under questioning from Mr Veitch, of the Respondent, was that he did make reference to that matter at the time of his dismissal. But his following evidence was that even though he did assert such an intention at the time, he simply did not act upon it because, consistent with his previous evidence, he was of the view that because of the alleged redundancy circumstances he did not have a case to present. It was not until he believed he identified subsequent evidence that to indicate otherwise was the case and that his alleged redundancy might not have been genuine, did he investigate making a claim under s.394 of the FW Act.

[19] I must therefore conclude that there was no other action (other than the initial verbal statement of intent) taken by the Applicant to dispute the dismissal other than effectively to make the application under the FW Act. That is, other than making his application under the FW Act, the Applicant took no further steps to challenge or contest the decision to terminate his employment.

[20] In my view, no prejudice arises to the Respondent in relation to the allowing of the application beyond time. The prejudice that will flow to the Respondent is only the transaction costs that would arise as a consequence to the application going forward in any event. No particular or peculiar or unique prejudice arises of any substance that I can see on the evidence that has been presented to me, if I were to allow the application because it is beyond time by some five days.

[21] In relation to the merits of the application, I've clearly not been exposed to the merits of the application in any detail. The best I can conclude is that the merits of the application are a neutral consideration in respect of their bearing upon the discretion which I need to exercise in these matters.

[22] Finally, there is no evidence before me as to the fairness between this particular person, the Applicant, and any other persons in a similar situation. These appear to be unique circumstances, and no circumstances of comparative value or weight are before me for the purpose of consideration.

[23] This matter therefore hinges critically upon my judgment that the evidence given by the Applicant, specifically that he dated and sent his letter on 30 November 2010, is accurate and truthful.

[24] The best I can conclude is that the Applicant is being honest and truthful and consistent with the affirmation that he gave in these proceedings. I must accept his evidence therefore on its face. I must also accept therefore that it follows that the reasons for the delay in lodging the application resulted from circumstances beyond the Applicant’s power to affect, and therefore constitutes exceptional circumstances for the FW Act’s purposes.

[25] As a consequence I will allow his application, albeit one that is not within the stipulated time period. 1

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J Ellis for himself

Mr T Veitch for the Respondent

Hearing details:

2010
Cairns

March 23

 1   As a post script, I indicate that following a further hearing in relation to whether the Applicant’s employment was terminated for reasons of a genuine redundancy, at which all the evidence was adduced, the parties were able to resolve their differences on agreed terms.

Printed by authority of the Commonwealth Government Printer

<Price code {C}, PR995476>