Jeremy Thompson v Heysen Gums Pty Ltd T/A Rotorvation Helicopters

[2014] FWC 4754

[2014] FWC 4754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Thompson
v
Heysen Gums Pty Ltd T/A Rotorvation Helicopters
(U2014/1454)

COMMISSIONER WILLIAMS PERTH, 16 JULY 2014

Termination of employment - extension of time.

[1] This matter involves an application made by Jeremy John Thompson (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Heysen Gums Pty Ltd T/A Rotorvation Helicopters (the respondent).

[2] The application says the applicant was notified of his dismissal on 27 March 2014 and the dismissal took effect on 6 April 2014.

[3] The application to the Fair Work Commission (the Commission) was made on 28 April 2014.

[4] I wrote to the applicant on 19 May 2014 advising that it appeared his application had been made after the 21 day statutory time limit prescribed in section 394 of the Act. The applicant was invited to provide evidence and submissions in support of an extension of time application. This correspondence was sent by post and email.

[5] As at the date of this decision no response has been received from the applicant and he has not otherwise been in contact with my chambers.

The legislation

[6] Section 394 of the Act requires that an application such as this is made within 21 days of the dismissal taking effect. This has not been complied with in this case.

[7] The Commission has the power to extend the time for making an application only where there are exceptional circumstances.

[8] The little information provide in the application indicates the applicant resigned and on 17 April 2014 was told he had to transfer monies back to the employer and at that point he realised he would not have been paid as he thought he should be.

[9] It seems prior to this date the applicant did not have complaint with his dismissal. I note that Thursday, 17 April 2014 is only eleven days after the dismissal took effect, well inside the 21 days to file an application within time.

[10] There is no acceptable reason for all of the delay in this case.

[11] Given the applicant signed a resignation letter there is little merit in his case given the jurisdictional hurdle this poses.

[12] There is no real prejudice from the delay for the respondent, the applicant has not otherwise challenged his asserted dismissal and there are no others in a similar position.

[13] Considering these factors in section 394(3) of the Act there are not exceptional circumstances in this case. No extension of time to make this application can be allowed.

[14] The application was made out of time and will now be dismissed.

[15] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

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