Note: An appeal pursuant to s.120 (C2008/2458) was lodged against this decision - refer to Full Bench decision dated 20 August 2008 [[2008] AIRCFB 599] for result of appeal.

[2008] AIRC 363

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Workplace Relations Act 1996

s.643 - Appl’n for relief re (Unlawful and HUU) termination of employment

Garry Keith Druett


Rail Corporation New South Wales (RailCorp)




Termination of employment – extension of time.


[1] Mr Druett lodged an application with the Commission on 16 January 2008 in respect of termination of his employment with the State Rail Authority of NSW, now trading as Railcorp, on 2 April 1979. The application is over 28 years outside the 21 day period required by the Act and relies on grounds which commenced operation in the predecessor Act on 30 March 1994.

[2] In Re Kazimir Kowalski  1 a Full Bench of the Commission ruled that “the termination of employment provisions of the Act have no application to terminations of employment prior to 30 March 1994.” It went on to say:

[3] Mr Druett’s material did not advance an arguable case that there is jurisdiction under the Act to entertain the application, even if the time for lodgement is varied.

[4] That is a relevant consideration in declining to vary the time under s.643(14) for Mr Druett to lodge his application.

[5] On the material provided, I am not satisfied there is an acceptable explanation of the delay in lodging the application, especially given unsuccessful proceedings in 2002 in the Industrial Relations Commission of New South Wales.

[6] I accept that Railcorp will be prejudiced by the delay, having now no records of Mr Druett’s employment or the reasons for its termination, other than a one page employment history card.

[7] Nor am I persuaded that Mr Druett’s actions to contest the termination, so far as they are disclosed in the material provided, weigh in favour of extension.

[8] Further, there is no merit to the application. Extending the time for lodgement of an application for which there is no jurisdiction is a pointless exercise. Moreover, to do so would be unfair to previous unsuccessful applicants in like positions.

[9] The application is dismissed.

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 1   Kowalski v Mitsubishi Motors Australia Limited, PR914818, 1 March 2002, per Watson and Cartwright SDP, and Whelan C.