TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appellant appealed decision refusing an extension of time to lodge application for unfair dismissal remedy and to dismiss application – filed application with Commission (first application) not on correct prescribed form – became aware wrong application was filed at telephone conciliation conference – discontinued first application and lodged new unfair dismissal remedy application using correct form (second application) 55 days outside 21-day period – appellant submitted Commission failed its duty of care towards him by not confirming correctness of first application – submitted combination of factors could be construed as a situation which is out of the ordinary course, unusual, special or uncommon – submitted administrative error should not prevent Commission from hearing the merits of an unfair dismissal matter particularly in case of unrepresented parties with limited knowledge of relevant processes and terminology – respondent submitted the correct test and matters were identified and regarded to – submitted appeal could not succeed as decision was neither unreasonable nor manifestly unjust – further submitted there was no power to correct, amend or waive the irregularity; there was no power under s.586 of FW Act to change the nature of an application from s.365 application to s.394 application; and s.586 was not procedural provision which allowed applicant to amend application to add or substitute a new claim for relief that arose out of same facts as original claim; appellant bore responsibility for initiating wrong application; advice given by Commission staff member could not be relied upon since it was not the function of Commission to provide advice to litigants – Coal & Allied Mining Services and GlaxoSmithKline considered – found was in public interest to grant permission to appeal – three novel issues had potential wider application – Ioannou considered but inapplicable – proper characterisation of appellant’s first application was on the wrong form and potential for irregularity in that application to have been remedied under s.586 rather than being dealt by discontinuance and a second application were critical to consideration of whether there were exceptional circumstances justifying an extension of time to lodge the second application – House v The King considered – Full Bench found the Commission erred to not have accounted for critical matters identified as relevant considerations – concurred was appellant’s error – found error amounted to irregularity in application form – was not unreasonable for appellant to hold belief correct application lodged – appellant acted promptly by discontinuing the first application, filing second application and rectifying error – found reasons for delay highly unusual and beyond appellant’s control – found matters favoured extension of time be granted as exceptional circumstances existed – no prejudice to respondent – matter could have been rectified without need to make late application – permission to appeal granted – appeal upheld – first instance decision quashed – extension of time granted. Appeal by Hambridge against decision of Kovacic DP of 18 April 2017 [[2017] FWC 2148] Re: Spotless Facilities Services P/L
