Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - whether application made within 21 days - where day of lodgement falls on a public holiday - Acts Interpretation Act - application due on 22nd day.

[1] Mr Ronald Hemi ("the Applicant") made an application under s.394 of the Fair Work Act 2009 ("the Act") on 2 April 2013, seeking an unfair dismissal remedy. The Applicant had been dismissed from his employment at BMD Constructions ("the Respondent") on 11 March 2013.

[2] The dismissal took effect that same day, according to the Applicant.

[3] On 2 April 2013, the application for an unfair dismissal remedy under section 394 of the Act was made. The application is 1 day out of time in respect of the requirement of s.394(2)(a) of the Act. The Respondent had pressed for the determination of this "jurisdictional" point prior to the application being conciliated.

[4] Section 394 (2)(a) of the Act provides as follows:

[5] In light of this it is necessary for the Applicant to seek a favourable exercise of discretion under section 394(2)(b) of the Act. The exercise of discretion in this regard by the Fair Work Commission is a conditioned discretion, by virtue of the operation of s.394(3) of the Act. These provisions are as follows:

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

[6] A telephone hearing in relation to this matter was conducted on 6 June 2013.

[7] Both the Applicant and the Respondent agreed that the application was made one day after the 21 days stipulated at s.394(2)(a) of the Act. But whether the application was in fact made one day after the applicable time frame is a matter for determination.

[8] The Applicant for his part contended that his application was late because he had not managed to make the application on a public holiday. The Applicant's reason for the delay was as follows:

I am lodging this Application 1 day late being the Easter long weekend. It creeped up on me and lost track of time please help me. So Sorry for being late. (sic)

[9] The Applicant was dismissed on Monday 11 March 2013.

[10] Upon my examination of the 2013 calendar, the last day on which the Applicant could have made his application such that it was compliant with s.394(2)(a) of the Act was Monday, 1 April 2013. This is 21 days after the dismissal took effect (with Tuesday 12 March being counted as the first day).

[11] Monday, 1 April 2013 was Easter Monday, a gazetted public holiday.

[12] Did the application fail to comply with s.394(2) of the Act?

ACTS INTERPRETATION ACT 1901 - SECT 36(1)

(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

is expressed to begin at, on or with a specified day

Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.

Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.

Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.

Example 4: If a person's right to make submissions ends on the last day of a financial year, the person may make submissions on that day.

Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.

Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.

Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7-day period starting on 1 May and ending on 7 May.

(a) an Act requires or allows a thing to be done; and

(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

"holiday" , in relation to the time for doing a thing, means:

(a) a day that is a public holiday in the place in which the thing is to be or may be done; and

(b) if the thing is to be or may be done at a particular office or other place--a day on which the place or office is closed for the whole day.

[13] In the current case, the Act requires at s. 394(2)(a) , that the application must be made within 21 days after the dismissal took effect. That is, the application must be made within 21 days after the date on which the dismissal took effect. This is a situation which accords with item 6 in the above schedule and is demonstrated by way of example 6 above.

[14] It is apparent that 21 days from March 11, 2013 (with the first day being counted as 12 March 2013) means that the statutory period of time ends on 1 April 2013. As I have mentioned above, the first day of April 2013 was a public holiday for reasons of being Easter Monday.

[15] That is, the 21 day period ended on a public holiday.

[16] Section 36(1) of the Acts Interpretation Act as set out above indicates that if a thing is to be done on a public holiday the thing may be done on the next day.

[17] In the current circumstances, the application before me was not required to be made until 2 April 2013.

[18] The application was made on 2 April 2013.

[19] The application before me was made within 21 days of the dismissal taking effect, by virtue of the operation of the Acts Interpretation Act in relation to the requirements of s.394(2)(a) of the Act. In the current case, this means the application was not made until the 22nd day after the dismissal had taken effect. But accounting for the public holiday upon which the application was due, that day did not count for the purposes of the 21 day requirement. In such circumstances, the Applicant in effect had 22 calendar days within which to make the application.

[20] There is no requirement for me to exercise my discretion to allow for the application in another period of time. This is because the application is consistent with the Act's requirements (under s.394(2)(a) of the Act).

[21] The application is now referred for conciliation, as it was originally destined until this matter was agitated.

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