Wesley Jones v Capital Veneering Pty Ltd

[2014] FWC 1464

[2014] FWC 1464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wesley Jones
v
Capital Veneering Pty Ltd
(U2013/16368)

COMMISSIONER DEEGAN CANBERRA, 28 FEBRUARY 2014

Application for remedy for unfair dismissal, application lodged outside the statutory time limit for lodgement, no exceptional circumstances, application dismissed.

[1] On 29 November 2013 an application for a remedy in respect of an alleged unfair dismissal was received in the post office box of the Canberra office of the Fair Work Commission (the Commission). The application was made pursuant to s.394 of the Fair Work Act (the Act) by Mr Wesley Jones (the applicant) in respect of the termination of his employment by Capital Veneering Pty Ltd (the respondent). The application was incomplete as it was not signed or dated and was not accompanied by the required filing fee.

[2] Section 394 of the Act is as follows

394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

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

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

[3] According to the information in the application the applicant was dismissed from his employment with effect from 4 November 2013. As the application was not received until 29 November 2013 it did not comply with the requirement set out in s.394(2) of the Act. As a consequence, the matter was listed for a hearing to determine whether there were exceptional circumstances such that further time should be allowed for the making of the application.

[4] At the hearing the applicant appeared in person. According to his evidence he had initially made an application for unfair dismissal which he had posted to the Fair Work Ombudsman (FWO) on 14 November 2013, as he believed that the FWO was the appropriate organisation. He claimed that he received no contact from the FWO until he was telephoned late on 21 November and advised that he should lodge his application with the Commission. It was the applicant’s evidence that he completed an application and posted it on 24 November 2013. He did not sign or date the application as he did not realise the signature block was to be signed by him. As the 21 day statutory period allowed for lodgement was about to expire he wrote on the top of the application ‘posted 24 November 2013’.

[5] It was the applicant’s evidence that there was merit in his application as his employment had been terminated though he had received no warnings about any deficiencies in his work or attendance. He stated that he had not contacted his employer after the dismissal, nor taken any other action to contest his dismissal other than making the unfair dismissal application.

[6] Mr Madden, appearing for the employer, did not claim any prejudice caused by the delay in filing, but noted that he had been employing staff for 15 years and had employed, and mentored, in excess of 100 employees. According to Mr Madden, this was the first unfair dismissal claim that had been made against him.

[7] The applicant’s support person, Ms McGufficke, noted the absence of prejudice to the respondent and indicated that the applicant had suffered some stress caused by the dismissal.

[8] At the conclusion of the evidence and submissions I indicated that I was not satisfied that there were exceptional circumstances in this matter such that further time should be allowed for lodgement. The applicant was aware, as at 24 November, that he had only one day remaining before the end of the statutory time period for lodgement of his application. The applicant chose to mail his application. The application was sent by regular mail, not Express Post. There was no guarantee that the application would be received the next day. The applicant did not put forward any reason for choosing to mail the application rather than lodge the document in person the following day so as to ensure that it was received within the time period. The applicant lives in a suburb of Canberra with access by public transport to the Canberra office of the Commission.

[9] In dismissing the application I noted the applicant’s failure to pursue the matter with his employer. I also indicted that, while there was no prejudice caused to the employer by the delay, this was not sufficient reason to accept the application. I noted that I was unable to find, at this stage of the proceedings, that the application was totally without merit. So far as fairness between the applicant and other persons in a similar position was concerned I did not consider this to be a relevant consideration.

[10] There have been decisions of the Commission, and its predecessor, concerning applications posted within the statutory time period that failed to arrive at the destination until the time period had expired. In two of these 1 decisions, where the only factor has been a failure to post the application in sufficient time to ensure its receipt before the expiration of the statutory time limit, findings were made that exceptional circumstances did not exist. Exceptional circumstances have been found in circumstances where the application was posted within sufficient time to reach the destination (10 days) but failed to arrive due to no fault of the applicant.2 Similarly where factors, other than tardiness on the part of the applicant, have been found to have caused the delay, a finding that exceptional circumstances exist has been made.3

[11] In this case, there were no factors beyond the control of the applicant which contributed to the delay in the filing of the application.

[12] For the above reasons I was not satisfied exceptional circumstances existed such that further time should be allowed for the filing of the application. The application was dismissed.

Appearances:

Applicant in person

Mr Madden for the respondent

Hearing details:

2014.

Canberra:

26 February.

 1   Cuthbert v PRD Nationwide Werribee Real Estate [2014] FWC 675 and Wiggins v Fielders Australia Pty Ltd[2012] FWA 10025

 2  Ellis v TNQITC Pty Limited T/A Cairns Voice & Data[2010] FWA 2479

 3  Kelly v William Stewart Bentley[2011] FWA 2062

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