Mr Antoine Abi-Esber v Sinclair Knight Merz Pty Ltd T/A SKM Consulting Pty Ltd
[2010] FWA 350
•20 JANUARY 2010
[2010] FWA 350 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
v
Sinclair Knight Merz Pty Ltd T/A SKM Consulting Pty Ltd
(U2009/5026)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 20 JANUARY 2010 |
Termination of employment – extension of time.
[1] Mr Abi-Esber’s application under s.643 of the Workplace Relations Act 1996 was lodged one year after termination of his employment with SKM Consulting Pty Ltd on 10 November 2008.
[2] He applied for extension of the lodgement date on the basis that “I was advised by my accountant (Parramatta Accountants – Michelle Webb – 9891 3822) that I have 12 months from the date of termination. On this basis I said to myself that I better first concentrate on starting my own company or find a job and decided to lodge to the end of that period.” The employer objected to variation of the statutory 21 day period and to conciliation before determination of the application to extend time.
[3] The matter was dealt with “on the papers”. Only Mr Abi-Esber provided material in writing in response to the Commission’s letter of 26 November 2009. That material consisted of a one page submission, accompanied by extensive medical and related assessments for the period 2005 to 2007, a statement from his accountant saying that he advised Mr Abi-Esber in October or November 2008 that he should seek legal advice on whether he had an unfair dismissal claim, and a single handwritten statement dated 22/12/09 from the William Street Granville Medical Centre that Mr Abi-Esber “suffered from anxiety” and that he saw many psychologists.
[4] Applying the principles in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, I am not positively satisfied that I should exercise the available discretion to vary the statutory 21 day period.
[5] I am not persuaded that Mr Abi-Esber has provided an acceptable explanation of a delay of almost one year. The statement from Mr Abi-Esber’s accountant does not support Mr Abi-Esber’s reason for extension given on the application form. The medical material provided deals almost exclusively with the period 2005 to 2007 and the single statement from the Granville Medical Centre does not convince me that Mr Abi-Esber was unable over almost one year to comply with the statutory time limit.
[6] Nor do the other factors in Brodie-Hanns convince me that this is a case for the exercise of discretion in Mr Abi-Esber’s favour.
[7] I decline to vary the statutory 21 day period for lodging an application under s.643 of the Workplace Relations Act 1996.
[8] The application is dismissed.
SENIOR DEPUTY PRESIDENT
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