David v Maxitrans Australia [2016] FWC 4301 (5 July 2016) [2016] FWC 4301 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Geoffrey David v Maxitrans Australia Pty Ltd (U2016/7349) COMMISSIONER RYAN MELBOURNE, 5 JULY 2016 Application for relief from unfair dismissal - extension of time. [1] Mr David (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Maxitrans Australia Pty Ltd (the Respondent) was harsh, unjust or unreasonable. [2] On 27 January 2016 the Respondent gave notice to the Applicant in writing and verbally that his employment was terminated with effect from 2 March 2016 for the reason that he was not capable of carrying out the inherent requirements of his job. The Applicant had been off work on WorkCover for over 13 months from 20 December 2014 to 27 January 2016. [3] The Applicant had until midnight on 23 March 2016 to lodge an unfair dismissal application. His application was lodged by mail and received by the Fair Work Commission on 31 May 2016. This application is therefore 69 days outside the 21 day time limit provided for in the Act. [4] The Respondent opposes the grant of an extension of time. [5] Both the Applicant and the Respondent’s Group Human Resources Manager, Mr Ian Else, consented to having the determination of an extension of time occur on the papers. Legislation [6] Section 394(3) permits the Fair Work Commission to extend the 21 day time period in in the Act subject to the Commission being satisfied that there are exceptional circumstances taking into account each of the relevant matters enumerated in s.394(3). “394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether the person first became aware of the dismissal after it had taken effect; and (c) any action taken by the person to dispute the dismissal; and (d) prejudice to the employer (including prejudice caused by the delay); and (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.” Section 394(3)(a) - The reason for the delay [7] The Applicant’s submissions advanced in support of being granted an extension of time were that he was of the belief that he had 21 days from the date of receiving a separation certificate from the Respondent to file his application. [8] The Applicant asserts that as he had not received a separation certificate from the Respondent some weeks following the dismissal taking effect and that he raised this with his solicitor who advised him to speak to the Respondent about it. [9] It was not disputed by the Respondent that the Applicant did attend at the workplace on or around 12 May 2016 and make enquiries of the new HR manager about his separation certificate. The Respondent submits that a separation certificate was issued to the Applicant on 2 March 2016 but that, following the Applicant’s visit on 11 May 2016, a duplicate was printed and mailed to him on 12 May 2016. [10] The Applicant asserts that he had been receiving advice from a solicitor. There is no evidence that the solicitor advised the Applicant that the 21 days commences following the receipt of a separation certificate. [11] The Applicant was made aware that his employment was terminated with effect from 2 March 2016 approximately 5 weeks prior to the dismissal taking effect. This fact weighs against the Applicant being granted an extension of time. [12] Ignorance of the law in this area is simply no excuse, nor does it warrant a finding that there are exceptional circumstances. There's nothing in this matter which would meet the tests in Cheyne Leanne Nulty v Blue Star Group , 1 as to the meaning of exceptional circumstances. [13] In all of the circumstances of this matter I'm not satisfied that there are exceptional circumstances which would warrant an extension of time. The application in this matter is clearly well out of time. No extension of time will be granted. The application is therefore dismissed. COMMISSIONER 1 [2011] FWAFB 975 ; (2011) 203 IR 1. Printed by authority of the Commonwealth Government Printer <Price code C, PR582227>