Meri Apostolovska v Bakers Boutique Patisserie

[2020] FWC 2648

[2020] FWC 2648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Meri Apostolovska
v
Bakers Boutique Patisserie
(U2020/633)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 21 MAY 2020

Application for an unfair dismissal remedy – ss.40A and 394(2)(a) Fair Work Act 2009 – whether application filed out of time – s.36(2) Acts Interpretation Act 1901 – recognition of Saturdays, Sundays and holidays.

[1] Ms Meri Apostolovska made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) on 20 January 2020.

[2] The matter proceeded to an extension of time hearing on the basis that Ms Apostolovska’s application was filed 23 days from the time the dismissal took effect on 28 December 2019.

[3] However, for the reasons that follow, I find that Ms Apostolovska’s application was made within the 21-day timeframe prescribed by s.394(2)(a) of the FW Act.

Background

[4] Ms Apostolovska commenced employment with Respondent on 29 August 2016 on a part-time basis. 1

[5] On 27 December 2019, Ms Apostolovska sent a text message to a person she knew as Ms Christine Backery, the wife of the business owner Mr Joe Conforto. The text message advised that she had not been paid. A further text message was sent from Ms Apostolovska to Ms Backery regarding the same matter on 28 December 2019. In response, Ms Apostolovska was advised to call Mr Conforto. 2

[6] In a series of text messages between Ms Apostolovska and Mr Conforto during the period 28 December 2019 and 3 January 2020, the following exchange took place:

“[Saturday 28 December 2019]

Mr Conforto: Then it’s your last day then

Ms Apostolovska: Hi joe I’m only asking for my pay like everyone else gets paid

Mr Conforto: You threatened Christine with your job again 3 rd time

Ms Apostolovska: I’m not threatening I have bills and rent to be paid I’m working but not getting paid for

Mr Conforto: No work for you , people who threatened there job to another employee, don’t appreciate there job

[Friday, 3 January 2020]

Ms Apostolovska: Hi Joe haven’t received any payments thanks

Mr Conforto: You not required to work on Sunday thanks” 3

[sic]   

[7] In her application form Ms Apostolovska said that, “I just asked for my pay as it was late thats all. His reply was: ‘then it’s your last day then’!” Ms Apostolovska understood from this exchange that she had been dismissed effective 28 December 2019. 4

[8] Ms Apostolovska’s application for an unfair dismissal remedy was received by the Commission on Monday 20 January 2020.

Consideration

Effective date of dismissal

[9] On 28 December 2019, Mr Conforto advised Ms Apostolovska that it was her last working day. This was followed by a second text message from Mr Conforto to Ms Apostolovska the same day stating, “no work for you.”

[10] The Respondent has not challenged Ms Apostolovska’s contention that these text messages amounted to a dismissal. Noting the content of the messages, and a further message from Mr Conforto on 3 January 2020 in which he advised Ms Apostolovska that she was “not required to work on Sunday,” I find that Ms Apostolovska was dismissed from her employment with the Respondent on 28 December 2019. I am satisfied, on the material, that the dismissal took immediate effect.

[11] Accordingly, the 21-day period for Ms Apostolovska to lodge an application for an unfair dismissal remedy ended at midnight on Saturday 18 January 2020.

Statutory framework

[12] The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to the FW Act. 5

[13] Section 36 of the Acts Interpretation Act 1901 relevantly provides:   

“36 Reckoning of time

(1) …

(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is 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 or bank holiday in that place.” 6

[14] It follows from s.36(2) of the Acts Interpretation Act 1901 that if the final day of the 21-day period falls on a weekend or public holiday (where the Commission is closed), the timeframe will be extended to the next business day.

[15] Accordingly, because the final day for Ms Apostolovska to lodge her unfair dismissal application ended on a Saturday, the timeframe for lodgement extended to Monday 20 January 2020, being the next business day. This is the date that Ms Apostolovska’s application was received by the Commission.

[16] Having regard to s.36(2) of the Acts Interpretation Act 1901 as in force on 25 June 2009,I find that Ms Apostolovska’s application was made within the timeframe for lodgement prescribed by s.394(2)(a) of the FW Act.

Conclusion

[17] Given my finding at [16], there is no requirement for the Commission to grant a further period for the making of the application.

[18] Accordingly, Ms Apostolovska’s application for an unfair dismissal remedy will be reallocated to the Commission’s Unfair Dismissal Case Management Team to be dealt with in the usual manner.

DEPUTY PRESIDENT

Appearances:

M Apostolovska and Z Apostolovska for the Applicant.

J Conforto for Bakers Boutique Patisserie

Hearing details:

2020.
Melbourne (telephone hearing):
May 11

Printed by authority of the Commonwealth Government Printer

<PR719521>

 1   Form F2 Unfair dismissal application lodged 20 January 2020 (Form F2) at 1.1; Meri Apostolovska statement of evidence filed on 22 April 2020 (Apostolovska statement) at p.4

 2   Meri Apostolovska document list filed on 22 April 2020, text messages

 3   Ibid

 4   Form F2 at 1.4 and 3.1; Meri Apostolovska outline of argument: extension of time filed on 22 April 2020 at 2 and 3

 5 s.40A FW Act

 6   Act No. 134 of 2008