Martin Bissett v Zezt Pty Ltd

[2013] FWC 3876

[2013] FWC 3876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Martin Bissett
v
Zezt Pty Ltd
(U2013/765)

COMMISSIONER DEEGAN HOBART, 18 JUNE 2013

Application for relief from unfair dismissal - jurisdictional objection - whether application made within 21 days - day of lodgement falls on a public holiday - s.36 Acts Interpretation Act 1901 - application to be filed on 22nd day - application within time.

[1] An application was made under s.394 of the Fair Work Act 2009 (the Act) by Mr Martin Bissett (the applicant) on 12 March 2013 seeking an unfair dismissal remedy. The applicant had been dismissed from his employment with Zezt Pty Ltd (the respondent) on 18 February 2013.

[2] On 29 April 2013, the respondent lodged a Form F3 in response to the application and raised a jurisdictional objection on the grounds that the application was not lodged within 21 days after the dismissal took effect and that the applicant was a casual employee who was not employed on a regular and systematic basis and had no reasonable expectation of continuing employment. However, the latter ground for objection was subsequently withdrawn by the respondent.

[3] The matter was referred directly for formal proceedings as the respondent did not wish to participate in conciliation. On 2 May 2013, Directions were issued and the matter was listed for jurisdiction hearing, which took place on 17 June 2013.

The Relevant Legislation

[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;

Submissions for the respondent

[5] It was submitted on behalf of the respondent that in accordance with s.394(2)(a) of the Act, the application was required to be lodged by 11 March 2013, 21 days after the dismissal took effect on 18 February 2013.

[6] Further the respondent argued that, as the public holiday did not apply in all States and Territories, it was not a holiday for the purposes of s.36 of the Acts Interpretation Act 1901. In addition it was now possible for the application to be lodged electronically so it was not essential for an office of the Fair Work Commission to be open for lodgement to occur.

Submissions for the applicant

[7] The applicant disputed that the application was required to be lodged on 11 March 2013 and submitted that the applicant had until 12 March 2013. This was put on the basis that the 21 day time limit expired on 11 March 2013 which was a public holiday in Tasmania, the State where the applicant resided.

[8] In support of this argument the applicant’s representative relied on s.36 of the Acts Interpretation Act 1901 which provides as follows:

(2)  If:

(a)  an Act requires or allows a thing to be done; and

(b)  the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example:    If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

(3)  In this section:

"holiday" , in relation to the time for doing a thing, means:

(a)  a day that is a public holiday in the place in which the thing is to be or may be done; and

(b)  if the thing is to be or may be done at a particular office or other place--a day on which the place or office is closed for the whole day.

[9] It was put that this provision of the Acts Interpretation Act 1901 was not overridden by the existence of the ability to lodge applications electronically.

Consideration

[10] The question of the impact on the 21 day statutory period prescribed for lodgement of a public holiday falling on the last day for filing was the subject of a decision of Richards SDP on 12 June 2013 in Hemi v BMD Constructions Pty Ltd. 1

[11] In that case, relying on s.36(2) of the Acts Interpretation Act 1901, Richards SDP found that where the last day for filing of a s.394 application fell on a public holiday the requirements of s.394(2)(a) would be satisfied if the application was filed the following day. With respect I agree with the Senior Deputy President’s conclusion and find that, in this case, there is no requirement for additional time to be permitted for lodgement as the application was filed within time.

Conclusion

[12] The jurisdictional objection is dismissed. The application was lodged within the time period allowed under the Act.

[13] The application will be referred for conciliation.

COMMISSIONER

Appearances:

Ms A. Mills, for the Applicant.

Mr S. Shelly, for the Respondent.

Hearing details:

2013.

Hobart:

June 17.

 1   [2013] FWC 3593

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