Asciak v Gai Brennan [2009] NSWIRComm 1033

Industrial Relations Commission of New South Wales

CITATION: Asciak v Gai Brennan [2009] NSWIRComm 1033

APPLICANT PARTIES: Lorraine Linda Asciak RESPONDENT Gabrielle Irene Brennan

FILE NUMBER(S): 2329 of 2008

CORAM: Cambridge C

CATCHWORDS: Unfair dismissal - termination of employment - application made out of time - extensive delay - valid reasons for delay - discretion to extend time exercised.

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

CASES CITED: Lucic v Nolan and Others, Federal Court of Australia - General Division, Fitzgerald J, 1 Nov 1982, 45 ALR 411. Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139.

HEARING DATES: 10 June 2009

DATE OF JUDGMENT: 7 July 2009

APPLICANT Mr D Bassett, solicitor from LEGAL REPRESENTATIVES: Liston & Clifton

RESPONDENT Mr R Locke, solicitor

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COMMISSIONER CAMBRIDGE

7 July 2009

Matter No IRC 2329 of 2008

Lorraine Linda Asciak and Gai Brennan

Application by Lorraine Linda Asciak re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

Section 85 of the Industrial Relations Act 1996, request for the Commission to accept application lodged out of time.

DECISION ON EXTENSION OF TIME

[2008] NSWIRComm 1033

1 On 16 December 2008, Lorraine Linda Asciak (the applicant), lodged a claim for unfair dismissal. The unfair dismissal claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW] (the Act). 2 The claim named the respondent employer as Gai Brennan. The respondent employer has more accurately been identified as Gabrielle Irene Brennan, trading as Gai Abandon Clothing, (the employer). 3 The claim was the subject of unsuccessful conciliation proceedings conducted in Tamworth on 3 February 2009. During the conciliation proceedings conducted on 3 February the issue of the late lodgement of the claim was identified as a significant impediment to resolution of the claim. 4 The applicant was unrepresented at the conciliation proceedings on 3 February and the issue of the late lodgement of the claim was a matter upon which the applicant indicated an intention to seek advice. Subsequently the applicant has been represented and has sought to have the Commission exercise the discretion provided by section 85(3) of the Act to accept the application made out of time. 5 The issue of the exercise by the Commission to accept the application made out of time was the subject of a Hearing conducted in Tamworth on 10 June 2009.