Asciak v Gai Brennan [2009] NSWIRComm 1033

Asciak v Gai Brennan [2009] NSWIRComm 1033

Although the delay was considerable, the applicant established sufficient reason for it: she was dissuaded by advice from the OIR that an unfair dismissal claim would halt its investigation of related entitlements, she genuinely but mistakenly believed the dismissal was invalid and her employment remained on foot,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 July 2009
Procedural Posture
Unfair Dismissal Application Pursuant to Section 84 of the Industrial Relations Act 1996 [nsw] / Decision on Request Under Section 85(3) to Accept Application Lodged Out of Time
Outcome
The application was accepted notwithstanding that it was made beyond the statutory time limit.
Legal Topics
['unfair Dismissal' 'extension of Time' 'out of Time Application' 'termination of Employment']
['industrial Relations' 'employment Law'] ['unfair Dismissal' 'extension of Time' 'out of Time Application' 'termination of Employment']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Unfair Dismissal Application Pursuant to Section 84 of the Industrial Relations Act 1996 [nsw] / Decision on Request Under Section 85(3) to Accept Application Lodged Out of Time

Legal Issues

  1. 1 ['Whether the Commission should accept an unfair dismissal application lodged beyond the statutory time limit under section 85(3) of the Industrial Relations Act 1996 [NSW].' 'Whether the applicant had sufficient reason for the delay in lodging the unfair dismissal application.' "Whether hardship, prejudice, the employer's conduct, and the potential outcome of the claim supported an extension of time."]

Ratio Decidendi

Although the delay was considerable, the applicant established sufficient reason for it: she was dissuaded by advice from the OIR that an unfair dismissal claim would halt its investigation of related entitlements, she genuinely but mistakenly believed the dismissal was invalid and her employment remained on foot, and she and her husband miscalculated the time for lodging a claim by reference to disputed leave entitlements. There was no evidence of extensive or unusual hardship to the employer, denial of an extension could cause injustice to the applicant, and the claim had substantial prospects of success. The interests of justice therefore favoured exercising the discretion under...

Court Disposition

The application was accepted notwithstanding that it was made beyond the statutory time limit.

Orders

  • ['The Commission accepts the application that has been made out of time.' 'Further proceedings in this matter will be scheduled upon written request of the applicant within twenty one days from the date of this Decision.']