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[2013] FWC 3593
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ronald Hemi
v
BMD Constructions Pty Ltd
(U2013/8052)
SENIOR DEPUTY PRESIDENT
RICHARDS BRISBANE, 12 JUNE 2013
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:
(2) The application must be made:
(a) within 21 days after the dismissal took effect
[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:
(2) The application must be made:
[...] ; or
(b) within such further period as the FWC allows under subsection (3).
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3593
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(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:
(a) the reason for the delay; and
(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
(e) the merits of the application; 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)
Calculating time
(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:
[2013] FWC 3593
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Calculating periods of time
Item
Column 1
If the period of time:
Column 2
then the period of time:
1 is expressed to occur between
2 days
includes both days.
2 is expressed to begin at, on or
with a specified day
includes that day.
3 is expressed to continue until a
specified day
includes that day.
4 is expressed to end at, on or
with a specified day
includes that day.
5 is expressed to begin from a
specified day
does not include that day.
6 is expressed to begin after a
specified day
does not include that day.
7 is expressed to end before a
specified day
does not include that 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.
(2) If:
(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;
[2013] FWC 3593
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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.
(3) In this section:
"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.
Conclusion
[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).
[2013] FWC 3593
[21] The application is now referred for conciliation, as it was originally destined until this
matter was agitated.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr R. Hemi, Applicant.
Mr G. Power, for the Respondent.
Mr S Thomas, for the Respondent.
Hearing details:
Brisbane
2013
6 June
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