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See Fair Work Act s.366
An application for a dismissal dispute must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect.[1]
The Commission may allow a further period for lodgment in exceptional circumstances.
The 21 days for lodgment does not include the date that the dismissal took effect.[2] This means that day one commences the day following the dismissal.
If the final day of the 21 day period falls on a weekend or on a national public holiday (when the Commission is closed) the timeframe will be extended until the next business day.[3] Public holidays or weekends that fall during the 21 days will not extend the period of lodgment.
The Commission is closed on the following national public holidays (or substitute public holiday):
On state or local public holidays (such as the Queen’s Birthday) the local Commission offices will be closed however the other Commission offices nationally will be open and able to accept applications electronically.
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[4]
A dismissal can be communicated orally.[5]
Where payment in lieu of notice is made the dismissal usually takes effect immediately.[6]
If an employee is given four weeks’ notice that they will be dismissed, and they work through the four week period – then the date that the dismissal takes effect will generally be at the end of that four week notice period.
HOWEVER, if an employee receives four weeks’ pay in lieu of working and is NOT required to work through the four week period – then the date that the dismissal takes effect will generally be the last day worked.
Whether an employment relationship exists is a question of fact (unless a law deems an employment relationship to exist when it otherwise would not).[8]
A question of fact is when the Commission must decide what the facts of the case are based on the evidence. Often a question of fact arises where there are two or more versions of events presented.
This means the Commission must determine which one, if either, of the circumstances is more likely to have occurred on the balance of probabilities.
[1] Fair Work Act s.366(1)(a).
[2] Acts Interpretation Act 1901 (Cth) s.36(1) (item 6 - where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A).
[3] Acts Interpretation Act 1901 (Cth) s.36(2). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A). See also Hemi v BMD Constructions Pty Ltd [2013] FWC 3593 (unreported, Richards SDP, 12 June 2013); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103 (unreported, O’Callaghan SDP, Gooley DP, Williams C, 9 January 2015); Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877 (unreported, Harrison SDP, Lawrence DP, Cambridge C, 20 March 2015).
[4] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) [24].
[5] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) [8]; citing Barolo v Centra Hotel Melbourne, Print Q9605 (unreported, AIRC, Whelan C, 10 December 1998).
[6] Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 355.
[7] Butterworths Australian Legal Dictionary, 1997, 577.
[8] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427.