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Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock

Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock

Case [2015] FWCFB 103 9 January 2015

Appeal

Jurisdiction

Unjust Enrichment

Employment & Labour Law

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[2015] FWCFB 103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Kristia Cahill
v
Bstore Pty Ltd T/A Bstore for Birkenstock
(C2014/7236)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILLIAMS

ADELAIDE, 9 JANUARY 2015

Appeal against decision [2014] FWC 8177 of Commissioner Cloghan at Perth on 24 November 2014 in matter number U2014/9591 - s.394(2) - Acts Interpretation Act 2901 - recognition of Saturdays and Sundays.

[1] This decision deals with an appeal made by Miss Cahill against a decision 1 of Commissioner Cloghan on 24 November 2014. In that decision the Commissioner concluded that Miss Cahill had lodged an unfair dismissal application outside of the 21 day time limit specified in s.394 of the Fair Work Act 2009 (the FW Act). The Commissioner was not satisfied that this time limit should be extended and accordingly, dismissed Miss Cahill’s application.

[2] Miss Cahill’s appeal is made on the grounds that the termination of her employment took effect on either Saturday 13 or Sunday, 14 September 2014. She lodged her application on Monday 6 October 2014. Consequently, depending on the date that termination took effect, the 21st day fell on either Saturday 4 October or Sunday, 5 October 2014. Miss Cahill asserts that the Commissioner’s decision is in error because the FW Act should be applied consistent with s.36 of the Acts Interpretation Act 1901 which states:

“ACTS INTERPRETATION ACT 1901 - SECT 36

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:

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;

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.”

[3] Miss Cahill asserts that, as her application was lodged on the first day following the Saturday or Sunday, it should be taken to be lodged within time.

[4] Miss Cahill’s appeal was listed for hearing in Perth on 12 January 2015. On 24 December 2014 the respondent, Bstore Pty Ltd T/A Bstore for Birkenstock forwarded the following advice to the Commission.

“We have carefully considered the nature of the Applicant's appeal.

The Respondent does not wish to contest the appeal and is willing to concede the appeal on the ground that the application for unfair dismissal was made within 21 days after the dismissal took effect by virtue of operation of the Acts Interpretation Act 1901 (Cth).

Subject to leave of the Full Bench, the Respondent is willing to reach consent with the Applicant on the following terms:

1. Permission to Appeal be Granted.
2. The Appeal be upheld on the basis that the application for unfair dismissal was made within 21 days after the dismissal took effect by virtue of operation of the Acts Interpretation Act 1901 (Cth).
3. The Decision of Commissioner Cloghan in [2014] FWC 8177 and Order PR557862 be quashed.
4. The matter be listed for conciliation before a Fair Work conciliator on a date to be fixed by the parties.

The Respondent will not be represented by a lawyer or a paid agent at the hearing set down for 12 January 2014 (if it is not vacated).

Please do not hesitate to contact me if you require any further information.

We have copied the Applicant into this email.”

[5] The appeal hearing was cancelled on this basis. We have considered the Commissioner’s decision in the context of the advice before us.

[6] We are satisfied that Miss Cahill’s unfair dismissal application should be taken to have been lodged within 21 days consistent with the requirements of the Acts Interpretation Act 1901. As a consequence we consider that the Commissioner’s decision to dismiss the application was in error and that error was of a nature that meets the requirements in s.400 of the FW Act such that permission to appeal should be granted in the public interest.

[7] The Commissioner’s decision and Order are quashed. An Order (PR559754) reflecting this decision will be issued. Miss Cahill’s unfair dismissal application will be referred for conciliation.

1 [2014] FWC 8177

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Details

AGLC: Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103
Case: [2015] FWCFB 103
Decision Date: 9 JANUARY 2015

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock was heard. The dispute involved Mr Cahill, an employee, and his employer, Bstore Pty Ltd, which operates under the name Bstore for Birkenstock. Mr Cahill sought to have Saturdays and Sundays recognised as ordinary hours of work for the purpose of calculating overtime entitlements under the Fair Work Act 2009. This was an appeal against a decision made by Commissioner Cloghan at Perth on 24 November 2014 in matter number U2014/9591.

The primary legal issue before the court was whether Saturdays and Sundays should be recognised as ordinary hours of work. The court was required to determine if the terms of the enterprise agreement or the ordinary hours of work, as defined by the Fair Work Act, justified the recognition of these days as ordinary hours. The court also needed to consider the interpretation of relevant legislation, particularly section 394(2) of the Acts Interpretation Act 1901, to ascertain the correct meaning of "ordinary hours of work" in the context of the case.

The court examined the enterprise agreement and found that it did not explicitly define Saturdays and Sundays as ordinary hours of work. It further considered the general provisions of the Fair Work Act and concluded that the act did not require the recognition of these days as ordinary hours. The court held that the ordinary hours of work were those specified in the enterprise agreement or, in the absence of such specifications, those typically worked by employees in the industry. Given that the agreement did not recognise Saturdays and Sundays as ordinary hours, and there was no evidence of a customary practice in the industry to do so, the court dismissed the appeal. The decision of Commissioner Cloghan was affirmed, and Mr Cahill's claim was unsuccessful.

Orders