Lara Blomberg v Omni Pathways Pty Ltd the Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting

[2023] FWC 1564

[2023] FWC 1564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lara Blomberg
v

Omni Pathways Pty Ltd The Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting

(C2023/2355)

COMMISSIONER HUNT BRISBANE, 28 JUNE 2023

Application to deal with contraventions involving dismissal – respondent made jurisdictional objection claiming application has been made outside of the 21-day time limit – last date of time limit a public holiday – application made within time.

1. On 26 April 2023, Ms Lara Blomberg made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Blomberg stated that she had been dismissed from her employment with Omni Pathways Pty Ltd The Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting (the Respondent) on 5 April 2023.

1. In its Form F8A Employer Response, the Respondent stated that the dismissal took effect on 5 April 2023, and objected to the application on the basis that the application had been made outside of the 21-day time limit in which to bring applications.

1. Section 366 of the Act states:

“366     Time for application

(1)   [Standard time limit]

An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or
(b)  within such further period as the FWC allows under subsection (2).

(2)   [Extended time limit]

The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)the reason for the delay; and

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

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

(d)the merits of the application; and

(e)fairness as between the person and other persons in a like position.”

1. The application was allocated to me determine whether the application was made within the statutory time frame and if it was not, whether an extension of time should be granted.

1. Both parties filed an outline of submissions and evidence in relation to the matter. The Respondent’s material did not go to the jurisdictional issue; rather it went to the merit of the application which is not a consideration before the Commission.

1. I consider it appropriate to determine the jurisdictional issue ‘on the papers’ as there are no contested facts with respect to the jurisdictional issue to be determined.

1. Mr Peter Smith gave evidence on behalf of the Respondent that he terminated Ms Blomberg’s employment on 4 April 2023 whilst seated in his car. He and Ms Blomberg, and other employees were on a work road trip in South Toowoomba, away from Ms Blomberg’s usual residence in Surfer’s Paradise.

1. On the morning of 5 April 2023, Mr Smith and other employees ate breakfast with Ms Blomberg and another employee who had been dismissed on 4 April 2023. Ms Blomberg did not have enough money for a bus to return her to her residence, and accordingly Mr Daniel Pellegrino, Director, forwarded her enough money to cover her bus fare.

1. Ms Blomberg submitted that the employment relationship came to an end on 5 April 2023, but for the purposes of the jurisdictional objection, was prepared to agree that the dismissal occurred on 4 April 2023.

Acts Interpretation Act 1901

1. Section 40A of the Act relevantly states as follows:

“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.”

1. Section 36 of the Acts Interpretation Act 1901, as in force on 25 June 2009, provided as follows:

“(1)Where in an Act any prescribed period of time, including 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 a day or 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 any thing falls on a Saturday, on a Sunday or on 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 in that place.”

Consideration

1. Pursuant to s.366(1)(a) of the Act, Ms Blomberg had 21 days to file her application. The first day of the 21-day period shall be 5 April 2023 if it is accepted that the dismissal occurred on 4 April 2023. I so find that the dismissal occurred on 4 April 2023.

1. The last day of the 21-day period that Ms Blomberg had to file her application fell on Tuesday, 25 April 2023, that being ANZAC Day, a public holiday.

1. I have considered the legislation set out above and the fact that Ms Blomberg’s last day for filing fell on a public holiday. I am satisfied the application was filed on 26 April 2023, being the first day following which is not a Saturday, a Sunday or a public holiday.

1. I determine that Ms Blomberg’s application was made within the statutory timeframe as set out in s.366(1)(a) of the Act.

1. As the application was not made out of time the matter will be referred to a staff conciliator in an attempt for the parties to resolve the matters between them.

COMMISSIONER

Appearances:

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