//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] AIRC 1372
defendant. The Commission refused to exercise its discretion under s.170CE(7) and dismissed the applicant's application for an extension of time for lodgement of the s.170CE application.
The applicant sought to bring an unfair dismissal claim after the 21 day time limit. He lodged the federal application 116 days late and sought the Commission's permission to accept it late. The solicitor's explanations for the delay were inadequate — extended unexplained gaps and the excuse of 'mutual unavailability' were insufficient. The employer did not attend to show prejudice, and the merits of the dismissal claim were not argued, but these factors did not overcome the poor explanation for delay. The Commission refused to allow the late lodgement and dismissed the extension application.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,694 words · generated 06/07/2026
Lee Jervis (the applicant) had his employment terminated effective 16 May 2002. He sought relief under s.170CE(1)(a) of the Workplace Relations Act for termination said to be harsh, unjust or unreasonable (see [1]). The statutory time limit for lodging a s.170CE application is 21 days from the date the termination took effect; s.170CE(7) permits the Commission to allow a late lodgement if it exercises its discretion to do so (see [1]). The application was lodged in the Sydney Registry on 30 September 2002, some 116 days late. The applicant therefore sought an extension of time under s.170CE(7).
1 cited instrument linked from this judgment.
The respondent employer, Coffey Engineering Group Pty Ltd (Coffey), filed a notice of appearance opposing any extension and also filed a motion to dismiss for want of jurisdiction (see [2]). A hearing on the extension request was listed for 4 November 2002; Coffey requested an earlier adjournment and gave a facsimile outlining factual assertions (including that the applicant had obtained new employment quickly and had previously been warned), but Coffey did not appear at the hearing (see [3]). The applicant was represented by his solicitor Mr Collins, who filed an affidavit explaining the steps taken and reasons for delay; the applicant himself did not give oral evidence (see [4]–[6]).
The Commission carefully reviewed the affidavit and the timeline. The solicitor had received instructions on 22 May 2002, applied initially to the State Industrial Relations Commission on 12 June 2002, which returned the application on 15 July 2002 advising federal coverage. The solicitor then said there were unsuccessful attempts to confirm instructions due to 'mutual unavailability' and that the federal s.170CE application was completed and sent to the Commission on 25 September 2002 (see [5]–[6]). The Commission found multiple, material gaps in explanation: a roughly two month delay after the State Commission's letter, and an unexplained 12 day interval between telephone confirmation on 17 September and lodging on 25 September. The excuse of 'mutual unavailability' was held to be inadequate (see [7]).
No evidence of prejudice to the employer was presented because no representative attended the hearing. The Commission treated the merits of the substantive claim as neutral, noting there had been no substantive material before it at the preliminary hearing (see [8]). Nonetheless, the inadequate explanation for delay was determinative. Senior Deputy President Harrison refused to exercise the discretion under s.170CE(7) and dismissed the application for an extension of time (see [9]).
The singular legal question before the Commission was whether to exercise its discretion under s.170CE(7) to allow a s.170CE application to be lodged out of time. The Commission emphasised that exercise of such a discretion requires an adequate explanation for the delay. The factual record, as presented by the applicant's solicitor, included significant, unexplained pauses at crucial stages of the process. The Commission found the explanations proffered were not satisfactory to justify the 116 day delay (see [5]–[7]).
The court analysed the affidavit evidence and found it lacking: the two month hiatus after the State Commission told the applicant federal jurisdiction applied, and the 12 day interval after instructions were confirmed, had not been explained. The phrase 'mutual unavailability' was inadequate to account for those periods, particularly given the importance of timeliness in statutory limitation provisions (see [7]).
Although Coffey did not appear and thus the Commission had no evidence of specific prejudice, the Commission made clear that the absence of demonstrated prejudice did not necessarily require granting the extension. Moreover, the Commission had no substantive material on the merits, and treated the substantive case as neutral. The decisive factor remained the inadequate explanation for delay. The Commission therefore declined to exercise its discretion to permit late lodgement (see [8]–[9]).
The decision exemplifies the Court's approach: discretionary extensions are not granted simply because there is no shown prejudice; explanation and a plausible, persuasive account of delay are essential.
Before this decision, the statutory framework under s.170CE(7) already afforded the Industrial Relations Commission discretion to allow late lodgement of a s.170CE application. It was settled practice in administrative and tribunal contexts that courts and tribunals require reasonable explanations for delay before exercising discretion to extend statutory time limits. This decision applies those established principles in the specific context of s.170CE(7).
After this decision, Lee Jervis v Coffey confirms and reinforces the Commission's refusal to permit late lodgement where gaps in explanation are not adequately accounted for. It highlights that routine or generalised explanations (such as mutual unavailability) will generally not satisfy the requirement. It also clarifies that lack of demonstrated prejudice to the respondent is not necessarily decisive when the explanation for delay is demonstrably inadequate.
The decision should be read as reinforcing procedural rigour: practitioners and litigants must provide complete and credible accounts for delay in s.170CE matters if they seek the Commission's indulgence.
Paragraph [1]: "By the time this s.170CE application was lodged it was some 116 days out of time. Section 170CE(7) provides that such an application must be lodged within 21 days ... or within such period as the Commission allows..."
Plain English: The applicant filed the unfair dismissal claim well past the 21 day deadline. The law allows the Commission to accept late claims, but only if it decides to do so.
Paragraph [5]: "Attempts by the client and solicitor to confirm instructions were unsuccessful due to mutual unavailability."
Plain English: The solicitor said he could not proceed because he and the client were both unavailable at the same times.
Paragraph [7]: "That, in my opinion, provides no adequate explanation for that delay."
Plain English: The Commission rejected the 'mutual unavailability' reason as not good enough to explain why the application was so late.
Paragraph [8]: "As there was no representation for or on behalf of Coffey I have no evidence before me of any particular prejudice..."
Plain English: The employer did not come to the hearing so the judge had no proof that allowing the late claim would cause it harm.
Paragraph [9]: "I am not persuaded to exercise my discretion under s.170CE(7) ... The application for an extension of time ... is dismissed."
Plain English: The Commission refused to allow the late filing; the request to extend time was denied.
This decision will be particularly relevant in cases with the following features:
Practitioners should therefore ensure that, when seeking extensions, they file contemporaneous records, explanations for each gap in conduct, and, where possible, direct evidence from the applicant addressing why the delay occurred.
The present decision itself does not cite earlier precedents and contains no discussion of prior case law; it is a fact-driven exercise of discretion grounded in accepted administrative practice. Later courts and tribunals considering late lodgement applications in employment or industrial contexts will regard the approach taken here as consistent with the general principles that govern extension of time exercises: provide a full and credible explanation; address each period of delay; and support assertions with evidence where possible.
Given the decision's clear statements at [5]–[7] and the dismissal at [9], later decision-makers looking at similar facts, long unexplained delay with only formulaic reasons supplied, would likely follow the same result. The decision is most useful as a practical example of the standard of explanation required in the Commission.
Conclusion Lee Jervis v Coffey is a compact, precedent-reinforcing decision emphasising procedural rigour. When seeking relief under s.170CE outside the statutory time, applicants must provide detailed, credible, and supported explanations for delay. Vague formulaic reasons will not suffice, and the absence of demonstrated prejudice to the respondent will not necessarily rescue an inadequate explanation. Practitioners should proactively document steps taken and reasons for delay, and present direct evidence from applicants when seeking extensions.
s.170CE application for relief in respect of termination of employment
[1] In this matter an application was lodged under s.170CE(1)(a) of the Workplace Relations Act 1996 (the Act) on 30 September 2002. The termination of employment in respect of which the application was made and which is said to have been harsh, unjust and unreasonable took effect on 16 May 2002. By the time this s.170CE application was lodged it was some 116 days out of time. Section 170CE(7) provides that such an application must be lodged within 21 days after the day on which the termination took effect or within such period as the Commission allows on an application made during or after those 21 days. The applicant has asked the Commission to exercise its powers in s.170CE(7) of the Act to allow the application that has been lodged out of time.
[2] The employer, Coffey Engineering Group Pty Ltd (Coffey) lodged a notice of appearance objecting to any extension of time for the lodging of the s.170CE application and also a motion to dismiss the application for want of jurisdiction. I have some doubt as to whether the issue of an application for an extension of time properly relates to a matter about which a motion to dismiss for want of jurisdiction is well founded. However I need not consider this matter further as it is clear that the employer opposes any extension of time and that is the matter that necessitated a hearing before me on 4 November 2002.
[3] I should indicate that the matter had previously been listed for 23 October 2002 however, at the request of Coffey, I listed the matter on the November date. In its facsimile containing its request for that adjournment it also commented on other matters. It was said that the applicant had found employment the week after his dismissal and remained employed at that same place and that he had received two warnings prior to his dismissal. Brief details of the reasons for the warnings were given. An observation was also made about what the motivation of the applicant and his lawyer might be in relation to lodging the application. This facsimile was not dated however it was received on 22 October 2002. When the matter came on for hearing on 4 November 2002 there was no appearance for or on behalf of Coffey.
[4] Before me the applicant was represented by his solicitor Mr Collins. Mr Collins had filed an affidavit concerning the reason for the delay in lodging the s.170CE application. He indicated that he relied solely on the affidavit and wished to say no more. The applicant was not called to give evidence. I brought to the attention of Mr Collins the facsimile forwarded to me by Coffey seeking the earlier adjournment and invited him to make any comment he wished about its content. He said that two matters in the facsimile were not in accordance with his instructions. These matters related to the assertion that the applicant had found employment the week after his dismissal and the previous warnings.
[5] The whole of the content of the affidavit of Mr Collins has been considered by me however for the purposes of this decision it necessary only to identify some matters contained within it. Mr Collins received instructions from the applicant on 22 May 2002. An application for relief in relation to the termination of his employment was obtained from the State Industrial Relations Commission on 12 June 2002. It was said to then be sent to the applicant "with a letter requesting him to complete same and see the writer". The application was sent to the State Commission on 8 July 2002. It was returned to the office of Mr Collins on 15 July 2002 with advice that the applicant was covered by a federal award. Mr Collins then said that inquiries were made of this Commission and appropriate forms for lodgement were obtained. He says "Attempts by the client and solicitor to confirm instructions were unsuccessful due to mutual unavailability".
[6] On 17 September 2002 Mr Collins said he confirmed with the applicant that he wished to proceed with the matter and obtained telephone instructions to complete the necessary forms. The s.170CE application was sent to the Commission on 25 September 2002 and confirmation that it had been received was obtained on 2 October 2002. I have earlier noted that the application was received in the Sydney Registry of the Commission on 30 September 2002.
[7] I have considered the explanation given by Mr Collins for the delay. It is inadequate in several respects. The reason for the significant delays between the steps identified are unexplained. The delay following Mr Collins receiving advice from the State Commission that the applicant was under a federal award and should pursue relief in this place covers a period of some two months. The only explanation given is that attempts by Mr Collins and his client to confirm instructions were unsuccessful due to "mutual availability". That, in my opinion, provides no adequate explanation for that delay. The applicant gave no evidence as I have earlier noted. Even when confirmation was received by Mr Collins that the applicant wished to proceed with the matter, there was a further delay of some 12 days until the application was lodged. Why Mr Collins and the applicant, knowing at that time that they were already significantly out of time, might have waited that long to send, by post, the application to the Commission is inexplicable. Other than the applicant instructing Mr Collins on 22 May 2002 there is no explanation given about what he was doing in the interim period. I was told nothing about any attempts he made to inquire about the progress of this matter nor any inquiries that may have been made about what Mr Collins was doing to expedite it.
[8] As there was no representation for or on behalf of Coffey I have no evidence before me of any particular prejudice that it may suffer by allowing the application to be lodged out of time. I have also considered the merit of the substantive application. This is not a matter about which I have been persuaded to make any comment one way or the other. Had a representative of Coffey seen fit to attend it may be that it could have established that which it asserted in its facsimile about previous warnings. No attempt was made on behalf of the applicant either to say something about merit of his claim. In these circumstances I am inclined to treat this consideration as neutral.
[9] The final matter I refer to is the failure of Coffey to be represented. This was inappropriate particularly in light of my accommodating a special hearing date so that its General Manager could attend. Failure to attend may allow assertions to be made against a party which will go untested. That party will lose the opportunity to cross-examine any witnesses. In this matter however, and, luckily for Coffey, the applicant's explanation is so unpersuasive that, in my opinion no extension of time is warranted. I am not persuaded to exercise my discretion under s.170CE(7) of the Act. The application for an extension of time for lodgement of the application for substantive relief is dismissed.
Printed by authority of the Commonwealth Government Printer
Lee Jervis
Coffey Engineering Group Pty Limited - PR924588 [2002] AIRC 1372;
The Commission refused to exercise its discretion under s.170CE(7) and dismissed the applicant's application for an extension of time for lodgement of the s.170CE application.