TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – applicant lodged unfair dismissal claim – application lodged one day out of time – whether exceptional circumstances to warrant extension of time – applicant had workplace injury and was absent on leave without pay for a period of seven months – respondent claimed that applicant failed to comply with notification obligations under enterprise agreement about absence – respondent received medical certificate further extending absence – respondent terminated applicant’s employment on basis applicant had no intention to engage in a return to work process in any capacity and was not reasonable or practicable to allow applicant to continue taking leave without pay – applicant’s unfair dismissal application posted on 28 December 2016 and received by Commission on 4 January 2017 – Commission considered whether credible reason for the whole period that the application was delayed beyond 21 day period – 21 day period started on the day following the dismissal – if final day of 21 day period is national public holiday or weekend then the timeframe extended until next business day – public holidays and weekends during the 21 day period will not extend the period of lodgement – applicant submitted that delay was due to lawyer advising it was not the time to pursue claim – under impression that application posted on 28 December would arrive in time – Commission found exceptional circumstances as applicant had been advised not to proceed with application, had poor literacy skills and needed assistance from his partner to fill out form and post application – whether limited evidence discloses a likely unfair dismissal – considered Kyvelos – Commission not required to make finding of fact as to evidence brought forward on the merits of application – Commission held insufficient material to draw conclusions about the prospect of success – Commission granted extension of time. Ninyette v BGC Contracting P/L
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