Alyce Shepherd v Ltd Industries Pty Ltd T/A C&B Hardware

[2014] FWC 6215

[2014] FWC 6215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alyce Shepherd
v
LTD Industries Pty Ltd T/A C&B Hardware
(U2014/8709)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 9 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdiction.

[1] On 11 August 2014 Ms Alyce Shepherd (the Applicant) lodged an application pursuant to s. 394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal.

[2] The Applicant lives in Cobar, New South Wales and was employed by LTD Industries Pty Ltd trading as C&B Hardware (the Respondent) in its hardware store in Cobar.

[3] The F2 form states that her employment commenced in February 2013 and her dismissal took effect on 20 July 2014. It also states that the application was made out of time. She provides an explanation that she was unable to get advice in Cobar about how and when to lodge the application. The “Youth Legal Service” had recently advised her that the application had to be filed within 21 calendar days of the dismissal taking effect.

[4] Wilsons Solicitors of Dubbo then filed an amended F2, on behalf of the Applicant on 27 August 2014.

[5] Because the application was, on the face of it, lodged beyond the 21 days specified by s.394(2)(a) of the Act, the matter was allocated to me for jurisdictional hearing.

[6] The hearing took place, by telephone, on 4 September 2014.

[7] The Applicant was represented by Mr Nick Wilson, solicitor, and the Respondent by Mr Allan Clarke, the Store Manager. No F3 has been filed as yet.

[8] The amended F2 contains a typographical error. The date of lodgement is erroneously stated as 21 August 2014. The application was lodged on 11 August 2014. The application now seeks reinstatement as well as compensation. Apart from the typographical error, the 27 August application is now pressed by the Applicant.

[9] Mr Wilson submitted that, in accordance with s.36 of the Acts Interpretation Act 1901, the application actually is not out of time. Section 36(2) provides that the time for lodging can be extended to the next working day if lodgement is due on a Sunday.

[10] In this case lodgement was due on Sunday 10 August 2014.

Conclusion

[11] I find that the application has not been lodged contrary to s.394(2).

[12] Given the explanation and circumstances of the Applicant I would have granted an extension pursuant to s.394(3) if that had been necessary.

[13] Pursuant to s.586, I amend the revised F2 application to correct the original date of lodgement 11 August 2014.

[14] The file will now be referred for conciliation of the parties.

DEPUTY PRESIDENT

Appearances:

N Wilson, solicitor, for the applicant.

A Clarke, on behalf of the respondent.

Hearing details:

2014

Sydney:

2 September (hearing, by telephone).

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