TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant claimed not dismissed within the meaning of s.386 of the FW Act because employment was not terminated at the employer’s initiative – applicant worked as Hand Signaller – found to have breached work safety policies during a shift – put on a ‘Return to Work Plan’ where confined to lower grade duties for two months – applicant also intended to pursue payment of Long Service Leave (LSL) – respondent claimed that applicant was not dismissed and remained in the pool of casual available employees – there was no work to offer applicant on the lower grade assigned to, for two months – not confident in the quality of work due to previous non-compliance – applicant provided with regular and systematic employment for almost eight years and had reasonable expectation of continuing employment – Gilda CohenShapira v The Scots College considered – must be demonstrated that termination was evident in respondent’s conduct – Commission satisfied applicant was dismissed at initiative of employer, however it was never communicated to applicant – dismissal does not take effect unless it is communicated to the employee being dismissed – application lodged 98 days out of time – applicant’s reason for delay in filing unfair dismissal application was choosing to pursue LSL application instead – delay not due to exceptional circumstances – applicant’s representative and applicant were aware of ability to lodge unfair dismissal however plainly chose not to do so in favour of another dispute – Commission not satisfied of exceptional circumstances warranting the applicant being allowed a further period for application to be made – extension of time refused. Whybrow v Swetha International P/L
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