Justin Kurt Hite v Bridgeman Agencies Pty Ltd

[2023] FWC 215

[2023] FWC 215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Kurt Hite
v

Bridgeman Agencies Pty Ltd

(U2023/287)

COMMISSIONER PLATT ADELAIDE, 24 JANUARY 2023

Application for an unfair dismissal remedy – whether application was made out of time – application made in time – no extension necessary – application to proceed.

Introduction

1. The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

1. This decision concerns whether an unfair dismissal application (the Application) lodged by Mr Justin Hite (the Applicant) against Bridgeman Agencies Pty Ltd (Bridgeman or the Respondent) was lodged within the statutory timeframe set out in s.394(2) of the Act.  

Background

1. Mr Hite has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Bridgeman, which his form F2 Unfair Dismissal Application advised took effect on 19 December 2022.

1. Mr Hite and Bridgeman are both based in Queensland, and Mr Hite performed his work for Bridgeman from Queensland.

1. Mr Hite lodged his application at 11.33pm (QLD time) on 9 January 2023, which is the date 21 days after his dismissal took effect. The Commission’s registry is based in Victoria. Accordingly, when an initial assessment was conducted by Commission staff, it was noted that as the Commission’s system recorded the application as being lodged at 12.33am (VIC time) on 10 January 2023, the application was made one day out of time.

1. The matter was allocated to my Chambers on 20 January 2023 to determine the extension of time issue.

1. On 20 January 2023, my Chambers sent both parties an email expressing my preliminary view that given that both parties were based in Queensland and the work was performed in Queensland, the correct time zone to determine the time and date of lodgement of the Application was that of Queensland. Accordingly, it was communicated to the parties that my preliminary view was that the application was lodged at 11.33pm on 9 January 2023 and was therefore made within time.

1. On 24 January 2023, the Respondent confirmed by email that it accepted my preliminary view and would not raise a jurisdictional objection to the Application on the basis that it was lodged out of time.

Conclusion

1. To the extent that it is necessary, I find that Mr Hite’s application was lodged at 11.33pm on 9 January 2023 and was therefore made within the statutory timeframe set out at s.394(2) of the Act. The Application does not require an extension of time to proceed.

1. Given the matter has not been subject to a staff conciliation conference, it will be re-allocated accordingly so that this can occur.

COMMISSIONER

[1] Section 394(2)(a) of the Act.  Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

[2] Section 394(3) of the Act

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