TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application for relief from unfair dismissal lodged 103 days outside 21 day period – applicant made first application for unfair dismissal on 12 April 2016 – following conciliation parties reached agreement to settle matter and applicant filed Notice of Discontinuance – applicant submitted respondent did not pay amount specified in the agreement – proceeded to take action in Magistrates’ Court – further submitted he was unable to pursue payment following respondent’s refusal to accept delivery of necessary papers – asserted it is possible for Commission to set aside Notice of Discontinuance where respondent failed to honour its side of the settlement – Australian Postal Corporation v Gorman referred to – submitted that because respondent unilaterally determined the agreement by stating it discovered conduct prior to dismissal that provided ground to dismiss him, he should be able to re-commence his application – respondent asserted applicant was attempting to deal with the enforcement of the agreement through second application – suggested application in the wrong jurisdiction and Commission may be barred from dealing with it as it had already dealt with the matter – Narayan applied – held Commission cannot set aside the Notice of Discontinuance filed in respect of the first application – question was whether second application can be made in the same terms and in respect of the same matter – settlement agreement suggested matter had been dealt with – enforcement a matter for courts and not Commission to determine – Zoiti-Licastro applied – satisfied that the agreement reached was a complete answer to the claim – whether extension of time should be granted for making of second application – held that despite reasonable explanation for delay in making second application, Commission was not satisfied there were exceptional circumstances – further application not a substitute for enforcing agreement in appropriate court – application dismissed. Murray v FlameStop Corporate Services P/L t/a FlameStop
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