Fair Work Act 2009 s.394 - Application for unfair dismissal remedy
Mr Ronald Hemi v BMD Constructions Pty Ltd (U2013/8052)
SENIOR DEPUTY PRESIDENT RICHARDS
BRISBANE, 12 JUNE 2013
Application for relief from unfair dismissal - whether application made within 21 days - where day of lodgement falls on a public holiday - Acts Interpretation Act - application due on 22nd day.
[1] Mr Ronald Hemi (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 2 April 2013, seeking an unfair dismissal remedy. The Applicant had been dismissed from his employment at BMD Constructions (“the Respondent”) on 11 March 2013.
[2] The dismissal took effect that same day, according to the Applicant.
[3] On 2 April 2013, the application for an unfair dismissal remedy under section 394 of the Act was made. The application is 1 day out of time in respect of the requirement of s.394(2)(a) of the Act. The Respondent had pressed for the determination of this “jurisdictional” point prior to the application being conciliated.
[4] Section 394 (2)(a) of the Act provides as follows:
(2) The application must be made:
(a) within 21 days after the dismissal took effect
[5] In light of this it is necessary for the Applicant to seek a favourable exercise of discretion under section 394(2)(b) of the Act. The exercise of discretion in this regard by the Fair Work Commission is a conditioned discretion, by virtue of the operation of s.394(3) of the Act. These provisions are as follows:
(2) The application must be made:
[...] ; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.
[6] A telephone hearing in relation to this matter was conducted on 6 June 2013.
[7] Both the Applicant and the Respondent agreed that the application was made one day after the 21 days stipulated at s.394(2)(a) of the Act. But whether the application was in fact made one day after the applicable time frame is a matter for determination.
[8] The Applicant for his part contended that his application was late because he had not managed to make the application on a public holiday. The Applicant's reason for the delay was as follows:
I am lodging this Application 1 day late being the Easter long weekend. It creeped up on me and…
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.
Continue reading Hemi v BMD Constructions Pty Ltd
Sign in free to access the full text
Details
AGLC
Hemi v BMD Constructions Pty Ltd [2013] FWC 3593
Case
[2013] FWC 3593
Decision Date
CaseChat Overview and Summary
The Federal Circuit Court was tasked with assessing an application for relief from unfair dismissal brought by Hemi against BMD Constructions Pty Ltd. Hemi sought to challenge the dismissal on the basis that it was unfair. A pivotal issue before the court was whether Hemi's application was lodged within the requisite 21-day statutory period, particularly considering that the day of lodgement coincided with a public holiday. According to the Acts Interpretation Act, when a period of time specified by law falls on a non-court day, the period is extended to the next court day. This meant that the 21st day of Hemi's application fell on a day that was both a public holiday and a non-court day, thus extending the application period to the next business day.
The court had to determine whether Hemi's application, lodged on the 22nd day, could still be considered timely. It examined whether the application was within the extended period allowed by the Acts Interpretation Act. The court held that because the day of lodgement was a non-court day due to it being a public holiday, the application was effectively made within the prescribed period. The court applied the statutory provisions and concluded that the application was lodged within the 21-day timeframe, albeit on the 22nd day due to the extension permitted by law. The court found in favour of Hemi, allowing the application to proceed.
The final orders of the court were that Hemi's application for relief from unfair dismissal was deemed to be within the statutory timeframe and was therefore valid. The court's decision hinged on the application of the Acts Interpretation Act, which extended the period to the next business day, thereby upholding Hemi's right to seek relief.