Jenel Dirix v PFD Food Services Pty Ltd

[2015] FWC 1322

[2015] FWC 1322

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jenel Dirix
v
PFD Food Services Pty Ltd
(U2015/2006)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 MARCH 2015

Application for relief from unfair dismissal - application lodged within time.

[1] Ms Dirix has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with PFD Food Services Pty ltd (PFD). At a telephone conference convened on 24 February 2015, I advised that I had concluded that the application was lodged within the time limit specified in that section. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Ms Dirix’s application was received by post and hence lodged on 5 January 2015. In that application Ms Dirix advised that the termination of her employment took effect on 11 December 2014. Ms Dirix advised that the application was lodged within the statutory 21 day time limit.

[3] On 15 January 2015 my Associate corresponded with both Ms Dirix and PFD and advised that the extension of time issue would be considered through a telephone conference on 24 February 2015. Substantial information about the extension of time issue was provided to the parties. Ms Dirix was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 February 2015.

[4] Additional information was received from Ms Dirix in the following terms:

“I have attached 3 photos showing that my paperwork was posted on 30/12/2014. On the 31/12/2014, the item was awaiting collection at the Adelaide GPO in the post box of the Fair Work Commission. Unfortunately the item was not collected until 5/1/2015, however, I had until the 2/1/2015 to lodge my paperwork. It was not in my control when the item was collected. It was sitting in the post box for 5 days before it was collected.
Regards
Jenel Dirix”

[5] Attached to that brief submission was an Australia Post Registered Post Lodgement receipt dated 30 December 2014 and a history report for that mail item showing that it was delivered on 5 January 2015. That history report showed that the mail item was recorded as "awaiting delivery at Adelaide Delivery and GPO Boxes" on 31 December 2014.

[6] The Employer’s Response to the application advised that PFD disputed that the application was lodged within time and opposed any extension of that time. That response also detailed the PFD concerns over Ms Dirix's employment performance and the various warnings given to her relative to her performance.

[7] Ms Dirix participated in the telephone conference. Mr Asmar from PFD also participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; 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.”

[9] The application was lodged 4 days beyond a simple count of 21 days. However s.36 of the Acts Interpretation Act 1901 requires that where a statutory time limit of this nature expires on a public holiday or a weekend day, or a day when the FWC is not open for business, that time limit is taken to expire on the next normal business day.

[10] In Ms Dirix's case the 21 days expired on 1 January 2015. That was a public holiday. The following day, 2 January 2015 was a day on which the Fair Work Commission was not open for business. The following two days were weekend days so that Monday 5 January 2015 should be taken to be the 21st day. According, I have concluded that the application was lodged within the requisite 21 day time limit. Ms Dirix's application will be referred for conciliation accordingly.

Appearances (by telephone):

J Dirix on her own behalf.

M Asmar for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

February 24.

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