Huajin Wang v Advanced Recruitment Pty Ltd

[2011] FWA 1313

[2011] FWA 1313

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Huajin Wang
v
Advanced Recruitment Pty Ltd
(U2011/4378)

DEPUTY PRESIDENT MCCARTHY PERTH, 1 MARCH 2011

[1] On 19 January 2011 Mr Huijan Wang (the applicant) lodged an application pursuant to s.643 of the Workplace Relations Act 1996 (Cth) (WR Act) claiming that his employment with Advanced Recruitment Pty Ltd (the respondent) had been terminated harshly, unjustly or unreasonably.

[2] The Form lodged states that the termination took effect on 1 June 2009.

[3] By operation of Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Fair Work Australia (FWA) may deal with the application.

[4] The WR Act requires applications for relief in respect of termination of employment to be made within 21 days after the termination took effect or within such period as FWA allows. The application was made more than 18 months after the termination of the applicant’s employment. The reason stated in the application lodged for the delay was that:

“In August, I came back to Advanced Recruitment even though the employment was terminated in June. At that time, I was holding the visa of 457 and it was hard to find another job. Under this circumstance, I couldn’t lodge the application if I wanted to work for Advanced again.”

[5] On 18 February 2011 I wrote to the applicant providing an opportunity to provide further information relating to whether an extension of time should be granted. The letter was also translated into Mandarin as the application stated that the applicant’s first language was Mandarin and that an interpreter would be needed. I requested that the response be provided by close of business on 25 February 2011. No response was received.

[6] There is no evidence that the applicant took action to contest the termination of employment after the termination and prior to making the application. There is no evidence that the respondent would be prejudiced by the granting of an extension of time and I am not able to form any views about the merits of the application. I do not consider that there are issues relating to fairness between the applicant and others in a like position.

[7] I do not consider that an extension of time for the making of the application for relief in respect of the termination of the applicant’s employment by the respondent should be granted and the applicant’s reason for the delay in making the application is not an acceptable explanation for the delay in making the application.

[8] The application for an extension of time for the making of the application for relief in respect of the termination of employment is therefore dismissed.

DEPUTY PRESIDENT

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