TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant resigned from his employment with respondent on 2 December 2015 – on 2 November 2016 applicant made an application for unfair dismissal – respondent objected to application on the grounds that it was filed outside the statutory time limit – objection upheld and application was dismissed – applicant appealed – Commission considered if exceptional circumstances existed and reason for delay – application should have been made by 23 December 2015 for it to be within time – application not made for a further 11 months and 7 days – main reasons for delay relied upon by the applicant were the actions of his lawyers, psychological illness and matters associated with a workers’ compensation claim – Commission examined the advice of applicant’s lawyer – advice about potential general protections non-dismissal applications and potential unfair dismissal applications – found no basis to conclude lawyer deliberately withheld information from applicant about any application that could be made – Commission examined medical opinions provided about applicant – found nothing in the evidence of applicant’s treating doctors that suggests he was not capable of pursuing an application for unfair dismissal during the period of December 2015 to November 2016 – found the applicant’s workers’ compensation claim did not explain his failure to make an application for unfair dismissal – Commission did not accept that legal advice provided an acceptable reason for the delay – applicant did not instruct any lawyer to make an application – no error made by any lawyer – not satisfied that the applicant was misdirected by any lawyer – not satisfied that the applicant was not able to research, understand or complete an application before 2 November 2016 as a result of his medical condition – not satisfied that the time the applicant spent on preparing a workers’ compensation claim was a substantive reason for the delay in making unfair dismissal application – not satisfied the applicant’s personal matters including the birth of his first child and his mother’s deteriorating health explained the delay – found matters raised by applicant do not collectively explain the totality of the period of delay – not satisfied that exceptional circumstances existed – extension of time refused – application dismissed. Costelloe v Origin Energy Ltd t/a Origin Energy
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