FWA 1431
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
DEPUTY PRESIDENT MCCARTHY
PERTH, 2 DECEMBER 2009
Application lodged beyond time allowed –further period allowed.
 The application in this matter was filed on 9 October 2009. According to the application Matthew Palmer’s (“the applicant”) employment was terminated on 14 September 2009. The application having been lodged more than 14 days after the termination took effect, the applicant sought an extension of time to lodge the application (pursuant to s.394 (3) of Fair Work Act 2009 (“the FW Act”).
 The applicant requested an extension of time primarily on the grounds that he had wrongly lodged an application in the Western Australian Industrial Relations Commission (“the WAIRC”).
 On 30 October 2009 RCR Engineering Pty Ltd (“the respondent) lodged a response to the application and objected to the application as it had been lodged outside of 14 days, the time allowed under the FW Act for applications to be lodged. A conference was held before a conciliator on 2 November 2009. A report from that conference notes that the application was lodged beyond the time allowed and the employer objected to an extension of time.
 On 9 November 2009 I wrote to the applicant and requested that he provide me with an explanation as to what exceptional circumstances there are such that I should allow an application. The applicant responded on 10 November 2009, essentially repeating the reasons he had provided with the application.
 The applicant asserts that
 I then wrote to the respondent on 16 November 2009 and provided an opportunity to provide any further information and attached a copy of the applicant’s response to a similar request. The respondent informed me that they did not wish to provide any further material.
 An application claiming unfair dismissal must be lodged within 14 days of the termination of employment or such extra time as Fair Work Australia (“FWA”) allows. For a further period to be allowed FWA must be satisfied that there are exceptional circumstances after taking into account a number of factors.
 Here it is clear that the applicant took action to contest his termination of employment almost immediately but in the wrong jurisdiction. That primarily is the reason for the delay. That application, had it been lodged in FWA, would have been well within the time allowed by the FW Act.
 The respondent responded to the application lodged in the WAIRC within the time provided for response there but it was some 20 days after the application had been lodged. The respondent disputed the WAIRC’s jurisdiction to deal with the application which first alerted the applicant to his error. The effect of this was that the respondent lodged the jurisdictional objection in the WAIRC beyond the time allowed for the applicant to lodge an application in FWA. Had it been lodged more expeditiously the applicant most likely would have lodged an application with FWA within the time allowed. Indeed when the applicant became aware that his application was lodged in the wrong jurisdiction he lodged an application with FWA within three days.
 I have considered the prejudice that may be suffered by the respondent as I have considered the merits of the application. I have also considered the fairness to this applicant compared to others in a like position.
 I have had particular regard to the fact that the respondent by not lodging a notice in the WAIRC until well after the time for lodging applications in the FWA had expired. I am not inferring that the delay by the respondent was deliberate however it did have the effect of denying the applicant to lodge his application here within the time allowed.
 It appears to me that the circumstances here are exceptional. Therefore I will allow a further period for the application to be made, that period extending to the time that the application was lodged.
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