TERMINATION OF EMPLOYMENT – unlawful termination – extension of time – s.773 Fair Work Act 2009 – application to deal with unlawful termination dispute lodged 904 days outside time – applicant dismissed in November 2013 – made application to Queensland Industrial Relations Commission (QIRC) in November 2013, alleging dismissal unfair as harsh, unjust or unreasonable and for invalid reason due to temporary absence due to illness – QIRC application dismissed and subject to number of unsuccessful appeals by applicant – applicant lodged unlawful termination application in June 2016 alleging termination because of temporary absence from work due to illness – at time of dismissal s.774 of FW Act required application be filed within 60 days – applicant submitted reason for delay was that respondent and legal advisors advised her to make QIRC application and she did not know of option to make unlawful termination application until advised by Fair Work Ombudsman in June 2016 – under s.774, Commission must be satisfied of exceptional circumstances, such that discretion to extend time is triggered – Commission was not satisfied there were exceptional circumstances justifying exercise of discretion to extend time – applicant did not receive misleading or incorrect advice about options to pursue dispute – applicant not accepting outcome in QIRC and seeking to re-run case only apparent reason for application – no reasons for delay that constituted exceptional circumstances – while applicant disputed dismissal, not a factor weighing in favour of exercising discretion – respondent expended considerable time, cost and effort in defending QIRC application in circumstances where the same dispute as applicant sought to advance in Commission was dealt with to finality – witnesses for respondent no longer employed by respondent – period of time elapsed would prejudice respondent beyond usual prejudice – merits at best neutral and did not outweigh other factors – not appropriate to exercise discretion to grant extension of time – application dismissed. Wanninayake v Department of Natural Resources and Mines t/a Department of Natural Resources and Mines (Simtars)
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