AIRC 333
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.643 - Appl’n for relief re (Unlawful and HUU) termination of employment
Rail Corporation, NSW
SENIOR DEPUTY PRESIDENT CARTWRIGHT
SYDNEY, 26 APRIL 2007
Extension of Time.
 On 1 February 2007 Mr Plaksa lodged an application under s.643 of the Workplace Relations Act 1996 (“the Act”), on the grounds that termination of his employment with Rail Corporation, NSW (“RailCorp”) was harsh, unjust or unreasonable and allegedly in breach of s.659 of the Act.
 The matter was not settled in conciliation and Drake SDP issued a certificate pursuant to s.650 of the Act. On the same day Mr Plaksa lodged a notice of election to proceed to arbitration on the ground that termination of his employment was harsh, unjust or unreasonable. Accordingly, I listed the matter to be heard on 23 April 2007.
 On 11 April 2007, RailCorp filed a notice of motion to dismiss the application for want of jurisdiction, on the ground that it was lodged in excess of 21 days after the termination of employment took effect. On 13 April 2007 the Registry received a Notice of Ceasing to Act from Mr Plaksa’s legal representative.
 I heard the jurisdiction matter on 23 April 2007. Ms Sharp appeared, by leave, for RailCorp. Mr Plaksa was unrepresented.
 S.643(14) provides as follows:
“(14) An application under subsection (1) or (3) 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.”
 In this case, “the day on which the termination took effect” is a threshold matter to be determined on the facts. Mr Plaksa submits that the relevant date is 11 January 2007 and accordingly his application was lodged within time. RailCorp argues that the relevant date was 3 January 2007 or, at the latest, 9 January 2007 and accordingly the application was lodged outside the statutory 21 days.
 The facts do not appear to be in contention.
• Mr Plaksa was employed as a train driver.
• On 1 August 2006, he was stood down, on full pay, pending an assessment of his fitness to continue performing rail safety work.
• On 13 September 2006, Dr Kipling Walker, Consulting Psychiatrist, sent RailCorp a report which concluded that Mr Plaksa “was not fit to continue work as a train driver”.
• By letter of 16 October 2006, RailCorp notified Mr Plaksa that it was considering terminating his employment on medical advice and gave him 14 days to put forward in writing reasons why it should not do so.
• Mr Plaksa responded by letter dated 31 October 2006.
• By letter of 3 January 2007 RailCorp notified Mr Plaksa that “Following thorough and careful consideration of your response RailCorp has decided to terminate your employment, based on the medical advice received. Your date of exit from RailCorp has been determined and is noted in the schedule to this letter. You will receive four (4) weeks payment in lieu of notice.” No schedule was attached to the letter.
• Mr Williamson, Manager, Human Resources Services for RailCorp, gave evidence that on 9 January 2007 he had a telephone conversation with Mr Plaksa in words to the following effect:
“Mr Plaksa: The letter does not say the date my employment finished
Me: I thought the date was 3 January 2007, the date of the letter, and that you were paid four weeks in lieu of notice …I will have the exit date confirmed to you in writing, but it’s the date of the letter.” 1
Mr Plaksa did not dispute the fact or content of this telephone discussion. It is consistent with a contemporaneous file note by Mr Williamson.
• By letter of 10 January 2007 RailCorp confirmed “your conversation of yesterday with Wayne Williamson, that your date of exit is 3 January 2007.” Mr Plaksa says he received this letter on 11 January 2007.
 A Full Bench of the Commission, considering the same expression “the day on which the termination took effect”, expressed the view that “… termination does not take effect unless and until it is communicated to the employee whose employment is being terminated.” 2 More recently, a Full Bench in Makenja v Baptist Community Services observed, “Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case.” 3 The employee may be informed orally.4
 I am satisfied that occurred on 9 January 2007. It is apparent both from Mr Williamson’s oral evidence and from his affidavit that Mr Plaksa was already aware by 9 January of the contents of RailCorp’s letter of 3 January. The missing piece was the effective date. Mr Williamson confirmed in the telephone discussion that the exit date was the “date of the letter.” Since the discussion proceeded on the basis that RailCorp had already sent a letter notifying Mr Plaksa his employment was terminated, it follows that the time when he was informed of the effective date of that termination was 9 January 2007.
 Accordingly, the application is outside the 21 day period provided in s.643.
 I turn to the exercise of discretion as to whether the Commission allows a further period beyond the 21 days for the application to be lodged. Both parties made submissions on the application of the principles in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
 In explaining the delay in lodging the application on 1 February 2007, Mr Plaksa relied on legal advice that his application was to be lodged no later than 1 February 2007. He referred to two letters from his former legal representative, one dated 18 January 2007 and attached to his application on file and the other, handed up at the hearing, being written legal advice dated 31 January 2007. Both are drawn on the basis of Mr Plaksa’s instructions that he did not receive RailCorp’s letter of 3 January until 10 January 2007. The second records Mr Plaksa’s instructions “that you subsequently received RailCorp’s letter dated 10 January 2007 confirming that your date of ‘exit’ from RailCorp was 3 January 2007”. Neither refer to Mr Williamson informing Mr Plaksa on 9 January 2007 that the termination was effective on the day of the 3 January letter or to the fact that Mr Plaksa was aware during that discussion of the contents of Railcorp’s letter of 3 January.
 RailCorp argues that legal advice drawn on incomplete or faulty instructions does not provide an acceptable explanation of delay. I agree. This is not a case of representative error. In apparently failing to provide full instructions on his communications with RailCorp, Mr Plaksa exposed himself to the risk that the legal advice was not reliable.
 I am not persuaded that Mr Plaksa’s actions to contest the termination, other than applying under the Act, weigh in favour of an extension in this case. He provided a single written response on 31 October 2006, as requested, and sought legal advice after the termination, in circumstances where he was aware at least from mid October 2006 that RailCorp was considering terminating his employment. RailCorp submits it was not on notice that Mr Plaksa contested the termination.
 Issues of prejudice are not persuasive in this case, one way or the other. The absence of prejudice is generally insufficient basis to vary the time for lodgement.
 As to the merits of the application, on the material before me I do not rate Mr Plaksa’s chances highly. Given the medical report that he was not fit to continue work as a train driver, in the context of previous related diagnoses, establishing some procedural deficiencies in RailCorp’s decision making is unlikely to be sufficient. I doubt that Mr Plaksa’s application can succeed in the absence of contrary medical assessment. However, it may be that Mr Plaksa can provide that. Accordingly, I am not able to conclude that the application is without merit. I make it clear that I have not considered the content of the legal advice which Mr Plaksa handed up in support of his explanation of the delay.
 RailCorp submitted that consideration of fairness as between Mr Plaksa and other persons in a like position should weigh in its favour in this case. While I am inclined to agree, that aspect of fairness does not weigh heavily in this case.
 Considering all the material before me and the objects of the Act and of Division 4 of Part 12, I am not positively satisfied that the Commission should vary the statutory 21 day period for lodging the application. Accordingly, I decline to do so.
 The application is dismissed.
A Sharp, solicitor, for RailCorp NSW
T Plaska for himself
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1 Exhibit R-1, para 9
2 Burns v Aboriginal Legal Service, T3496, 21 November 2000.
3 PR975837, Para 18, 19 January 2007
4 Barolo v Central Hotel, Melbourne, Q9605, 10 December 1998