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

[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).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Alyce Shepherd v Ltd Industries Pty Ltd T/A C&B Hardware, the Federal Circuit and Family Court of Australia was tasked with determining the jurisdiction of the court in granting relief from an unfair dismissal. Ms Shepherd, the applicant, sought relief from an unfair dismissal decision rendered by her employer, Ltd Industries Pty Ltd T/A C&B Hardware. The primary legal issue before the court was whether it had the jurisdiction to entertain the application for relief from an unfair dismissal. The court had to consider the applicable legal framework and the procedural requirements for such applications.

The court meticulously examined the provisions of the Fair Work Act 2009 (Cth) and the relevant case law to determine the jurisdictional parameters. It was essential to ascertain whether the application was lodged within the stipulated timeframe and whether it complied with the necessary procedural prerequisites. The court also evaluated the nature of the relief sought by Ms Shepherd and its compatibility with the court's jurisdiction. Ultimately, the court concluded that it had the requisite jurisdiction to hear the application for relief from unfair dismissal, provided that the procedural requirements were satisfied.

In reaching its decision, the court emphasised the importance of adhering to the statutory timelines and procedural formalities. The court found that Ms Shepherd's application was lodged within the permissible period and that it met the necessary procedural criteria. Consequently, the court determined that it had the authority to consider the merits of the application for relief from unfair dismissal. The final orders of the court would address the specific relief sought by Ms Shepherd and any other relevant matters arising from the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established