Chloe Drew v Mint Kitchens Pty Ltd - [2022] FWC 3232

[2022] FWC 3232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chloe Drew
v

Mint Kitchens Pty Ltd

(U2022/9527)

DEPUTY PRESIDENT DEAN

CANBERRA, 15 DECEMBER 2022

Application for an unfair dismissal remedy – whether application filed out of time.

Ms Drew has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy concerning the termination of her employment by Mint Kitchens Pty Ltd (the Respondent).

The Respondent raised a jurisdictional objection to Ms Drew’s application on the ground that it was lodged outside the statutory time limit and that there were no exceptional circumstances justifying the granting of an extension of time. This decision deals with this jurisdictional objection.

There is also a dispute about whether Ms Drew resigned or was dismissed which will be dealt with at a later date.

For the reasons set out below, I find the application has been made within time and no extension of time is necessary.

Background

The Respondent’s business is based in the ACT. Ms Drew resides in NSW.

Ms Drew’ employment with the Respondent ended on 2 September 2022. The 21 day period prescribed by the Act for her to make her unfair dismissal application expired on 23 September 2022. That day, Friday 23 September, was a public holiday in Victoria. The previous day was also a public holiday in Australia.

Ms Drew engaged lawyers based in Victoria, and her application was filed by her lawyers in the Commission’s Melbourne registry on Monday 26 September 2022.

The Commission subsequently wrote to Ms Drew’s lawyers indicating the application was received outside the 21 day period. Ms Drew’s lawyers responded in the following terms:

“Dear Registry,
I refer to your below email and advise of the following:
· On or around 21 September 2022, I called the Fair Work Commission to determine how the ACT registry received unfair dismissal applications. I was told the ACT Registry uses the Melbourne Registry (with Melbourne being the main registry). This is confirmed on the Fair Work website which directs all applications to the Melbourne Registry and refers to Melbourne time when speaking of the 21-day limit;
· 22 September 2022 was a national public holiday, and 23 September 2022 was a Victorian public holiday;
· On 26 September 2022, I filed Ms Drew’s application at the Melbourne Registry; and
· Subsection 36(2) of the Acts Interpretations Act 1901 (Cth)(“the AIA”) confirms that if an Act requires a thing to be done and the last day for doing that thing falls on a holiday, then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday’; and
· “Holiday”, in relation to the time for doing a thing, means at subsection 3(b) of the AIA “if the thing is to be or may be done at a particular office or other place – a day which the place or office is closed for the whole day”.
As…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3232
Decision Date: 15 DECEMBER 2022

CaseChat Overview and Summary

Chloe Drew has brought an application against Mint Kitchens Pty Ltd pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy concerning the termination of her employment by the Respondent. The Respondent raised a jurisdictional objection to Ms Drew's application on the ground that it was lodged outside the statutory time limit and that there were no exceptional circumstances justifying the granting of an extension of time. This decision deals with this jurisdictional objection. There is also a dispute about whether Ms Drew resigned or was dismissed which will be dealt with at a later date.

The central issue for the Court was whether Ms Drew's application for unfair dismissal remedy was filed within the 21 day time limit prescribed by the Act. The Respondent argued the application was out of time because the Canberra registry was open on 23 September, being the place where Ms Drew was employed. Ms Drew argued the application was made within time because the Melbourne registry was closed for the whole day on 22 September 2022 and 23 September 2022 on account of it being a holiday on each day. The Respondent argued Ms Drew was not entitled to rely on a public holiday in Victoria, a place to which she had no connection, to claim her 21 day time limit ended on 26 September.

The Court found that the submissions put by Ms Drew's lawyers were correct, and so it found that the application was made within time, and no extension of time was necessary. The Court found that the Melbourne registry is one of the places that may accept unfair dismissal applications and it was a holiday on 23 September 2022 in Victoria, and in circumstances where the Applicant had engaged Melbourne based lawyers, it was reasonable for the application to be filed there. The Court also disagreed with the approach taken by the Respondent to rely on the current section 36(2) of the AI Act and found that the matter differed to the factual circumstances in Boyd where there was no connection to any place other than NSW, and which is where the application in that matter was in fact lodged.

For the above reasons, the Court found that Ms Drew’s application was made within time and therefore the Respondent’s jurisdictional objection was dismissed. An order to that effect is issued with this Decision.

Orders