RailCorp fails to derail driver’s dismissal appeal

The Locomotive Division has had a win at the Industrial Relations Commission (IRC) against RailCorp which was attempting to shut down an unfair dismissal case using a legal technicality.

Last July a RailCorp driver, Mr Brown, through no fault of his own, sent the paperwork for his dismissal appeal to the old address of the Transport Appeal Boards (TAB). The error was discovered and the forms lodged again at the correct address.

In a bid to quash Mr Brown’s appeal, RailCorp lodged an objection arguing that because the paperwork was late TAB could not hear the case.

The Commissioner considered RailCorp’s objection and found the appeal was effectively lodged in time and that TAB could consider Mr Brown’s appeal.

RailCorp then appealed to the full bench of the IRC which handed down the decision in March that TAB has the discretion to take into consideration the circumstances of “out of time” appeals and to decide whether to hear the case.

The decision also said that the 21-day period for lodging an appeal was not intended to “erect an immovable barrier to appeals lodged outside that period” and that “minor acts of non-compliance that do not prejudice the employer in any significant way may be accommodated.”

Mr Brown’s case is unusual because it is rare that out of time applications are lodged. The issue arose as a direct result of the TAB moving premises and the paperwork given to Mr Brown having the incorrect address on it.

However, beyond this particular case, the judgement is an important legal precedent and a big win for RTBU members and members of other unions that use the TAB because it recognises the power of TAB to consider applications lodged outside the 21-day period.

It does not mean that all out of time appeals will be heard but there is room for flexibility at the discretion of TAB.

As a result Mr Brown’s appeal may still be heard and has been sent to TAB to consider an Extension of Time to Appeal.