Chloe Drew v Mint Kitchens Pty Ltd
[2022] FWC 3232
•15 DECEMBER 2022
| [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 such, it is the applicant’s position that the application was received within the 21-day time limit, because:
1.The Melbourne Registry is an office or other place that may receive the applicant’s unfair dismissal application – it in fact received it;
2.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. 24 September 2022 was a Saturday and 25 September was a Sunday; and
3.26 September 2022 was the next day not a Saturday, a Sunday or a Holiday.
Given the above, may the Registry please confirm whether the applicant is still required to make submissions as to an out of time application. …”
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. The Respondent further 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.
Given the Commission must be satisfied that an application has been made within time (or grant an extension of time if filed late) for an application to proceed, the matter was listed for hearing to determine this threshold issue.
Relevant Legislation
Section 40A of the Act provides:
40A Application of the Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.
(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.
Section 36 of the Acts Interpretation Act 1901 (AI Act), as at 25 June 2009, provides:
36 Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.
Submissions
Ms Drew’s lawyers contended that the sole question for the Commission is whether the Melbourne registry is “the place in which the thing is to be or may be done”, and if so, was it a public holiday in the place.
The submissions made by Ms Drew’s lawyers included that:
‘13. The FW Act is silent on where or at what geographical or physical place an unfair dismissal application is to be “made”, only that it is to be made to the FWC.
14. The FW Act does not differentiate between the various registries of the FWC for the purposes of Part 3-2 of the FW Act. The FWC is to be regarded as a single federal entity as a creation under federal statute.
15. It follows on the proper construction of s36(2) of the AI Act that the Melbourne Registry was the place the Application may be filed, or in other words ‘done’, because:
a. The Melbourne Registry is not some separate arm of the FWC but rather is the FWC itself. If that is wrong, then no applications could pass through the Melbourne Registry and the FW Act would make a distinction between separate registries; and
b. The Melbourne Registry did in fact receive the applicant’s claim therein proving that “it may be done” at the place. If that is wrong, then no registry may accept applications on behalf of other registries.
16. If it is accepted that Melbourne Registry is the place that may accept the Application, and because it was a holiday on 23 September 2022, then s36(2) of the AI Act is satisfied. The fact that the Canberra Registry may also have accepted the Application is not then relevant.
17. Deputy President Dean in Alistair Boyd v MarketTrack Global Pty Ltd rightly disposed of the question as to whether lawyers might need shop around the country for a registry that is open outside of the state the application was filed in, where the Deputy President stated, at [17]:
“[the date in dispute] was plainly a public holiday in the place where the Applicant sought to lodge the Application and did in fact lodge the Application. Therefore, section 36(2) of the AI Act, as in force on 25 June 2009, operated through section 40A(1) of the FW Act to extend the time for making the Application under section 394(2)(a) of the FW Act to [the date in dispute]” .
18. Whilst that decision involved an out of time objection against an applicant who had their solicitors located in New South Wales and who had failed to file in the New South Wales Registry due to a state public holiday, it ought to be followed in the present matter because:
a. The rationale is the same - it was a public holiday in the place in which lodging the Application was done (and may be done). If some other rationale is accepted as to why the Applicant is out of time in this present matter, it would contradict the rationale relied on in Alistair Boyd;
b. Like in Alistair Boyd, the offices of the Applicant’s solicitors were closed on 23 September 2022 as was the registry where the Applicant sought to lodge the Application;
c. if the Applicant was required to file in the Canberra Registry, it imports some requirement under the FW Act that applicants file in the place they were employed or, rather the place of the Respondent’s business. The Applicant is unaware of any such requirement under the FW Act; and
d. otherwise, the Commission would be required to determine the “most correct” place that the filing of an application is to be done. If s36(2) of the AI Act intended itself to be read that way, then the act would not have deliberately inserted the words “or may be done” past the words “is to be done”; and
19. The Applicant respectfully submits that the application was made in-time and, accordingly, the FWC has jurisdiction to hear the matter.’ (citations omitted)
In reply, the Respondent contended that the question posed by Ms Drew’s lawyers was the wrong question because the words “may be done” relate to “the thing to be done” and not the “place”.
In relation the correct interpretation of the relevant provisions in the AI Act, the Respondent argued that:
‘9. However, it is the Respondent’s position that the Applicant has misconstrued the usage of the word “may” in s 36(2) in the AI Act. More specifically, it is the Respondents position that the word “may” should be understood as being attached the thing that “is to be done or may be done” under the relevant statute. In this regard, some statues mandate that things are to be done by a certain time (e.g. payment of taxes) while other statues allow discretion and require decisions to be made by a certain time (e,g. whether or not lodge an unfair dismissal claim). Put another way, the words “may be done” is referring to “the thing” that “may be done” in respect of situations where the statute provides discretion as to whether or not to do “the thing”.
10. With the above in mind, the Applicant has incorrectly sought to attach the words “may be done” to the word “place” in section 36(2) of the AI Act, and thereby incorrectly asserting that section 36(2) should be interpreted as meaning a place where the thing may be done.
11. That the Applicant’s interpretation is incorrect is supported by two further arguments.
12. The first argument is that the word “place” in section 36(2) of the AI Act is preceded by the word “the”, the definitive article. Section 36(2) does not say “any” place. In other words, section 36(2) conveys that there is a place where the mandatory “thing” is to be done or discretionary “thing’ may be done. Indeed, this is consistent with the submissions of Mr Boyd’s lawyers in Alistair Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489, that were accepted as correct by the Deputy President in her decision in that case.
13. The second further supporting argument can be found in how section 36(2) has been amended to currently states the following:
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.
14. As can be seen from the above current section 36(2) if the AI Act, the words “may be done” are clearly attached to “the thing” that may be done. The words “may be done” have no attachment to “place”.’
The Respondent also submitted that:
‘20. The Applicant’s submissions assert that because the Applicant’s lawyers are based in Victoria, where it was a public holiday, that this absolves the Applicant for having to comply with statutory time limits in the jurisdiction where the actual parties are located.
21. Following this line of reasoning through to its end creates a clearly illogical conclusion that where a public holiday exists in one jurisdiction, it is open to extend the date for filing across all jurisdictions by virtue of the fact that the Applicant may file in a jurisdiction in which that public holiday is observed. For example, if an unfair dismissal application was due to be filed by an applicant by particular date and it was not, then the applicant could extend the time for filing by an extra day by seeing if it was a public holiday in any other state or territory and contacting lawyers in any such state where it was a public holiday and instructing them to file the application.
22. Relevantly, the Applicant’s line of reasoning was rejected by the Full Court of the Supreme Court of South Australia in Elan Copra Trading Pty Limited v JK International Pty Limited. In that instance, White JA found, at [36]:
“There is no reason to construe section 36(2) as permitting an extra day or days in one place where that impediment does not exist merely because in another place the impediment would or may have existed. Such a construction may produce results which are quite uncertain depending upon the extent of the places at which the act could be carried out.”
23. Nonetheless, the Applicant points to Boyd to seemingly support their argument. In that matter, Deputy President Dean rightly held that the observance of a public holiday in the state in which all the parties were located was sufficient to permit extending the date on which the applicant was required to file their claim, notwithstanding the fact that the due date was not a public holiday in other jurisdictions and the claim could have been filed electronically elsewhere.
24.However, it is important to note that the Deputy President included a caveat to this reasoning and stated in reaching this conclusion, at [21] (emphasis added):
“In this case, Monday 7 October 2019 was a public holiday in NSW. The NSW registry of the Commission was closed, as was the office of Mr Boyd's lawyers. The Respondent's premises, where Mr Boyd was based, was located in Crows Nest, NSW. In this case there is no connection with any other state or territory other than NSW, and accordingly there was no requirement for Mr Boyd's lawyers to check whether a Commission registry in another state or territory was open in order to lodge an application within time.”
25. As the Deputy President rightly observed, where “there is no connection with any other state or territory … accordingly there was no requirement … to check whether a Commission registry in another state or territory was open in order to lodge an application within time.” It follows, then, that the inverse must also be true. That is, where the parties have a connection with another state or territory, there is a requirement to check whether the Commission registry in that state or territory is open in order to lodge an application within time.
26. This is the case in the matter currently before the Commission. The Respondent’s registered address and place of business is located in Canberra, ACT (see Form F3). The Respondent’s lawyers are located in Canberra, ACT. The Applicant’s premises, where the Applicant worked from home during her trial period, is located in Harden, NSW. The Applicant’s lawyers are located in Carlton South, Victoria.
27.Those involved are now spread across three separate jurisdictions, where only the Applicant’s lawyers are based in a jurisdiction which observed the public holiday on 23 September 2022. All other parties to the proceeding were based in jurisdictions where the Commission registries were open and trading under normal business conditions.
28. Further, the Applicant’s submissions say the fact that the Canberra registry may also have accepted the Application is not relevant citing Onebev Pty Limited v Encore Beverages Pty Ltd;5 however, the example provided in that case should not be seen as a comparison, as it is intended to discount the option of filing a claim in a jurisdiction which is otherwise unconnected to the facts of the matter. A similar line of reasoning in McDonald v Foamland6 was rightly rejected by the Deputy President in Boyd.
29.Accordingly, the Applicant’s lawyer should have turned their mind to the fact that the Registry in the jurisdictions in which the facts of claim occurred would be open and able to receive the Applicant’s application. If they had done so, they would have realised that no such reason for extending the due date existed in the relevant jurisdictions.
30.For all the above reasons, it is the Respondent’s position that the Applicant has failed to make out their argument that the Melbourne registry was the appropriate registry to file the application to the exclusion of all others and especially in circumstances where the facts of the matter occurred in another jurisdiction entirely. Consequently, the Applicant should not be permitted to rely on the public holiday to extend the deadline to file their application.’ (citations omitted)
Consideration
For the following reasons, I consider that the submissions put by Ms Drew’s lawyers are correct, and so I find that the application was made within time, and no extension of time is necessary:
a.I accept, as the Respondent argued, that the Melbourne registry is not a separate arm of the Commission, and the Melbourne registry did in fact accept Ms Drew’s application for filing.
b.Given 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, and so s36(2) of the AI Act is satisfied.
c.I also note that the Commission’s website specifically directs applications to be made to the Melbourne registry, supporting the view that the Melbourne registry is a “place in which the thing is to be or may be done.”
d.I disagree with the approach taken by the Respondent to rely on the current section 36(2) of the AI Act. Clearly, s.40A of the Act states that amendments made to the AI Act after 25 June 2009 do not apply.
e.Finally, this matter differs 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.
Conclusion
For the above reasons, I am satisfied and find that Ms Drew’s application was made within time and therefore the Respondent’s jurisdictional objection is dismissed.
Given my finding above, the matter will now be referred for conciliation.
An order to that effect is issued with this Decision.
DEPUTY PRESIDENT
Appearances:
R Gregory for Chloe Drew.
W Ward for Mint Kitchens Pty Ltd.
Hearing details:
2022.
By telephone:
December 8.
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