John Neale Nelson v Scholle Industries [1995] IRCA 588

John Neale Nelson v Scholle Industries [1995] IRCA 588

The applicant received written notice of termination when the termination declaration was put in his hands and signed by him, and also when he received the signed Employment Separation Certificate. The application was therefore out of time. The delay was substantial, no satisfactory explanation was given for the delay before the first indication of challenge, the respondent and other employees would or could suffer prejudice, and the substantive claim had only some prospect of success. The discretion to extend time should therefore be exercised against the applicant.

Jurisdiction
Australia
Judgment Date
17 October 1995
Procedural Posture
Industrial Law Alleged Unlawful Termination Application for Remedy and Extension of Time / Review Under S.377 of the Industrial Relations Act 1988 of a Judicial Registrar's Decision Made on 12 September 1995 Dismissing an Application for an Extension of Time
Outcome
Application for extension of time dismissed; application for a remedy under Part VIA Division 3 of the Industrial Relations Act 1988 dismissed.
Legal Topics
['unlawful Termination' 'extension of Time' 'written Notice of Termination' 'limitation Period Under S.170 Ea(3)' 'review of Judicial Registrar Decision']
['industrial Law' 'employment Law'] ['unlawful Termination' 'extension of Time' 'written Notice of Termination' 'limitation Period Under S.170 Ea(3)' 'review of Judicial Registrar Decision']

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Procedural Posture

Industrial Law Alleged Unlawful Termination Application for Remedy and Extension of Time / Review Under S.377 of the Industrial Relations Act 1988 of a Judicial Registrar's Decision Made on 12 September 1995 Dismissing an Application for an Extension of Time

Legal Issues

  1. 1 ['Whether the applicant received written notice of termination so that the 14 day period in s.170EA(3)(a) commenced to run' 'What constitutes written notice of termination for the purposes of s.170EA(3)(a)' 'Whether the Court should extend time under s.170EA(3)(b) for an application for a remedy for alleged unlawful termination']

Ratio Decidendi

The applicant received written notice of termination when the termination declaration was put in his hands and signed by him, and also when he received the signed Employment Separation Certificate. The application was therefore out of time. The delay was substantial, no satisfactory explanation was given for the delay before the first indication of challenge, the respondent and other employees would or could suffer prejudice, and the substantive claim had only some prospect of success. The discretion to extend time should therefore be exercised against the applicant.

Court Disposition

Application for extension of time dismissed; application for a remedy under Part VIA Division 3 of the Industrial Relations Act 1988 dismissed.

Orders

  • ['The application for an extension of time be dismissed.' 'The application for a remedy under Part VIA Division 3 of the Industrial Relations Act 1988 be dismissed.']