Anthony Bonaccorso and General Forest Tree Surgeons Pty Limited [2003] NSWIRComm 70

Anthony Bonaccorso and General Forest Tree Surgeons Pty Limited [2003] NSWIRComm 70

The applicant did not establish a sufficient reason for filing the unfair dismissal application 67 days outside the statutory period. Mere ignorance of the 21 day time limit was insufficient, the delay was significant, there was no evidence of excessive hardship to the applicant and he had obtained immediate alternative employment, the respondent was entitled to finality and had incurred costs, there was no evidence that the employer's conduct prevented timely filing, and the applicant's substantive constructive dismissal claim appeared to face real jurisdictional difficulties. The Commission therefore refused to exercise its discretion under s 85(3).

Jurisdiction
Australia
Judgment Date
25 March 2003
Procedural Posture
Application by Anthony Bonaccorso Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996, With Interlocutory Application to Accept the Claim Out of Time Under S 85(3) / Interlocutory Decision After Jurisdictional Hearing on the Out of Time Issue
Outcome
Application dismissed
Legal Topics
['unfair Dismissal' 'constructive Dismissal' 'extension of Time' 'limitation Periods' 'sufficient Reason for Delay' 'unrepresented Litigant']
['industrial Relations' 'employment Law'] ['unfair Dismissal' 'constructive Dismissal' 'extension of Time' 'limitation Periods' 'sufficient Reason for Delay' 'unrepresented Litigant']

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Procedural Posture

Application by Anthony Bonaccorso Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996, With Interlocutory Application to Accept the Claim Out of Time Under S 85(3) / Interlocutory Decision After Jurisdictional Hearing on the Out of Time Issue

Legal Issues

  1. 1 ['Whether the applicant had shown a sufficient reason under s 85(3) of the Industrial Relations Act 1996 for the Commission to accept an unfair dismissal application filed outside the 21 day time limit' 'Whether the reason for and length of the delay supported an extension of time' 'Whether hardship to the applicant or employer supported accepting or rejecting the application' 'Whether any conduct of the employer prevented or hindered the applicant from filing within time' "Whether the applicant's prospects of success in the substantive unfair dismissal claim supported exercising the discretion"]

Ratio Decidendi

The applicant did not establish a sufficient reason for filing the unfair dismissal application 67 days outside the statutory period. Mere ignorance of the 21 day time limit was insufficient, the delay was significant, there was no evidence of excessive hardship to the applicant and he had obtained immediate alternative employment, the respondent was entitled to finality and had incurred costs, there was no evidence that the employer's conduct prevented timely filing, and the applicant's substantive constructive dismissal claim appeared to face real jurisdictional difficulties. The Commission therefore refused to exercise its discretion under s 85(3).

Court Disposition

Application dismissed

Orders

  • ['The application must be dismissed.']