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Workplace Relations Act 1996

s.643 - Termination of employment

[1] Section 643(14) of the Workplace Relations Act 1996 (the Act) provides that an application under section 643 must be lodged within 21 days after the day on which termination took effect. It also says:

"OR within such period as the Commission allows on an application made during or after those 21 days."

[2] Here Mr Khosrow Ehteshami (the Applicant) did not lodge the application within 21 days of his termination by Nace Civil Engineering Pty Limited (the Respondent). His termination occurred on 15 May 2008. His application was lodged on 18 June 2009.

[3] On 14 July 2009, I invited the Applicant to provide reasons in writing as to why the lodgement time should be extended. I also invited the Respondent to provide its response.

[4] I do not propose to hold a hearing and have decided to deal with the matter on the basis of what is before me.

[5] The onus in establishing that such time should be extended lies on the applicant. It is the applicant's matter and it is the applicant that has failed to act in the manner prescribed in the Act.

[6] Within the relevant part of the Act a note appears referring to principles enunciated in Brodie Hanns v MTV Publishing [1995 67 IR 298.]

[7] I take due regard to those principles. Those principles are as follows:

"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion."

[8] I now turn to those principles and apply them to the present circumstances.

[9] The material provided by the Applicant in response to my invitation did not address this consideration. It went largely to the circumstance of his alleged unfair treatment by the Respondent. However, in his application lodged on 18 June 2009, he gives some explanation for the delay in filing. He refers to some informal discussion with (I presume) Senior Deputy President Cartwright or his associate but I am unclear what is meant. It may be that he chose not to proceed to arbitration (the conciliation before the Senior Deputy President having failed) in the hope that he might find another job. However, twelve months on he still had not found a job and therefore lodged this fresh application. It is clear that he failed to elect to go to arbitration. Senior Deputy President Cartwright issued a certificate in which he recommended that the application be discontinued. The Senior Deputy President properly exercised his obligation to provide his assessment. It was then up to the Applicant to decided whether to proceed or not. He decided not to do so at that time. Now, many months later he is pursuing this application. I find that the substantial delay in lodgement and the apparent reasons for this fresh application not an acceptable explanation for the delay.

Action taken by employee to contest the termination

[10] It seems that following the termination of his employment, the Applicant made application pursuant to section 643 of the Act, alleging that his termination was harsh, unjust or unreasonable and unlawful and breached section 661 of the Act. That matter (U2008/4431) was the subject of conciliation before Senior Deputy President Cartwright. To the extent that he lodged that application, it is clear that he has taken action other than the current application before me.

[11] There is no material before me indicating any prejudice to the Respondent if time for lodgement is extended.

[12] On the material before me, I find that the application can not be said to be without merit.

Fairness as between the applicant and other persons in a like position

[13] This does not seem to be a relevant consideration in this case.

[14] Having duly considered all the matters put to me by both parties in light of the principles enunciated in the Brodie-Hanns decision I am not prepared to exercise my discretion so as to allow the filing of this application out of time.

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