Glenda Pummeroy v Grafton Electrical Pty Ltd

[2013] FWC 784

[2013] FWC 784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Glenda Pummeroy
v
Grafton Electrical Pty Ltd
(U2012/10220)

COMMISSIONER MCKENNA SYDNEY, 6 FEBRUARY 2013

Application for unfair dismissal remedy - whether application was out of time.

[1] Glenda Pummeroy (“the applicant”) has lodged an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), for an unfair dismissal remedy concerning her termination of employment by Grafton Electrical Pty Ltd (“the respondent”).

[2] The applicant was employed with the respondent from 16 August 2010 until her employment was terminated on 25 October 2012. The applicant lodged her application for an unfair dismissal remedy on 8 November 2012. On 19 November 2012, the respondent filed an Employer’s Response, which included an objection to the application on the basis it was lodged out of time.

[3] The parties participated in a telephone conciliation before a Fair Work Australia (as the tribunal was then named) conciliator on 26 November 2012, but the matter did not settle. Over the course of 10-12 December 2012, Ian Walters of the respondent communicated with officers of Fair Work Australia by email in relation to the timing of the filing of the application. Shortly stated, the view expressed by Fair Work Australia to Mr Walters was that the application had been lodged within time. On 18 December 2012, Mr Walters confirmed the respondent wished to press its objection that the application had been lodged out of time and sought a hearing in relation to that matter.

[4] After the matter was allocated to me, I listed a mention by telephone on 8 January 2013. During the mention, the respondent reiterated its objection. With the consent of the parties, I determined to decide the issue on the papers; and gave directions for the filing and service of materials - directing that the respondent file and serve materials related to its objection first. The respondent filed its materials on 9 January 2013. The applicant’s representative, Mr A Kelemen of Employee Assist, that same day forwarded correspondence advising the applicant did not intend to make any submissions in response to the material filed by the respondent on the basis that the objection was “manifestly incompetent”.

Submissions

[5] The respondent submits that the application “according to the [A]ct is late and non-complying”. Specifically, the respondent submits the application was filed outside the statutory 14 day limit and was therefore non-compliant. The respondent’s submissions included a series of email communications between Mr Walters and officers of Fair Work Australia. In summary, the respondent submitted that, as to the reckoning of time, 25 October 2012 was the first day and 8 November 2012 was the fifteenth day. The respondent submitted that the calculation of time included the day of termination, being 25 October 2012. The respondent listed all the days in between, and assigned them a number value, e.g., 25 October 2012 was day 1; 31 October 2012 was day 7; and 8 November 2012 was day 15.

[6] As noted earlier, the applicant’s representative indicated that the applicant did not intend to make any submissions on the issue.

Consideration

[7] The relevant provisions of the Act, before the recent amendments, were as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[8] The calculation of time periods was considered by Lucev FM in Moon v JLG Industries (Australia) [2011] FMCA 343 in relation to s.371(2) of the Act and the reckoning of time of “within 14 days after” an event - in that case, issuing a certificate under s.369 of the Act. His Honour noted at [28] to [30] that the use of the word “after” in the phrase “within 14 days after” would expressly exclude the day of the event. This approach of excluding the day of termination of employment in the calculation of time limits in relation to unfair dismissal applications has been adopted in various Fair Work Australia decisions, including: Lifshack v Dominant (Australia) Pty Ltd T/A Dominant Chemicals[2012] FWA 5165 at [22]; Davies-Claughton v Crystal's Lunch Vans [2011] FWA 2377 at [12]; Legaz v Northern Beaches Community Services Pty Ltd [2011] FWA 5656 at [33]; Simpson v Patrick Stevedoring Holdings Pty Ltd T/A Patrick Auto Bulk and General [2010] FWA 5056 at [7]; and Burgoyne v Festival City Wine & Spirits Pty Ltd T/A Festival City Wines & Foods[2010] FWA 7908 at [18].

[9] Turning to this application, it is common ground the applicant was dismissed on 25 October 2012. Under the Act as it was then, the applicant had to file an application within 14 days after the dismissal took effect on 25 October 2012. The first day of that period was 26 October 2012; the fourteenth day was 8 November 2012. The application is therefore within time and, as such, there is no need to determine whether an extension of time should be granted.

[10] The file will now be remitted to the Unfair Dismissals Team.

COMMISSIONER

Appearances:

A. Kelemen of Employee Assist, for the applicant.

I. Walters for the respondent.

Hearing details:

2013.

Sydney (telephone link).

8 January 2013.

On the papers.

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