TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – extension of time – applicant commenced employment with the respondent as a bus driver on 27 March 2008 – dismissed for misconduct in November 2016 – termination letter dated 17 November 2016 stated applicant’s employment would be terminated taking effect from close of business 18 November 2016 – letter sent by Registered Post, with Australia Post leaving a collection card at the applicant’s home after it unsuccessfully sought to deliver the letter on 21 November 2016 – applicant collected letter from the post office on 25 November 2016 – applicant’s solicitor believed successfully lodged unfair dismissal application on 13 December 2016, relying on the advice relating to payment of the application fee by credit card set out in the Form F2 expecting to be contacted by an officer of the commission regarding payment – in absence of contact from commission, the applicant’s solicitor contacted the Commission on 2 February 2017 and was advised that there was no record of the application – applicant representative resubmitted application on 2 February 2017 – respondent submitted that the date the dismissal took effect was 21 November 2017 and the application should therefore have been filed with the Commission no later than 9 December 2009 – applicant submitted that dismissal took effect on 25 November when he collected termination letter from post office – respondent submitted dismissal took effect on 21 November 2017 when Australia Post unsuccessfully sought to deliver the termination letter to the applicant’s home – applicant relied on various cases to illustrate that dismissal does not take effect until it is communicated to the employee whose employment is being terminated – termination not effective until letter received – Commission found that the applicant’s dismissal took effect on 25 November 2017 – Commission then needed to consider whether a competent application was lodged on 13 December 2016 – no evidence to support that this was the case – Commission needed to consider whether there are exceptional circumstances – applicant submitted that reason for the delay was that applicant had caused application to be electronically filed with Commission on 13 December 2016; relied on the statement contained in the Form F2 that a Commission officer would contact him to pay the filing fee but this did not occur; it was not suggested in the filing fee at the time of lodgement would potentially cause a risk of application being filed out of time and any problems with the filing of his application were not caused by him – respondent submitted that it was not aware of such circumstances but technical difficulties do not amount to an exceptional circumstance – confusion regarding application fee payment arrangements stems from the different approaches to that issue reflected on the Commission’s website regarding the Online Lodgement Service and the Form F2 – Commission determined circumstances of this case are analogous to Anaskovic – Commission considered Nulty and found that here are exceptional circumstances – extension of time granted. Thomas v ACT Government – Transport Canberra and City Services t/a ACTION
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