Mint Kitchens Pty Ltd v Chloe Drew - [2023] FWC 30

[2023] FWC 30

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Mint Kitchens Pty Ltd
v

Chloe Drew

(C2022/8475)

ACTING PRESIDENT HATCHER

SYDNEY, 5 JANUARY 2023

Appeal against decision [2022] FWC 3232 of Deputy President Dean at Canberra on 15 December 2022 in matter number U2022/9527 – stay application – stay order refused.

Mint Kitchens Pty Ltd (appellant) has lodged an appeal, for which permission is required, against a decision[1] and order[2] made by Deputy President Dean on 15 December 2022. The decision concerned whether an unfair dismissal application lodged in the Commission’s Melbourne registry by Ms Chloe Drew on 26 September 2022 was made outside the 21-day time limit prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (FW Act), in circumstances where Ms Drew contended in her application that she had been dismissed on 2 September 2022. The Deputy President determined that the application was filed in time, having regard to the operation of s 36 of the Acts Interpretation Act 1901 (Cth) (AI Act) as it was at 25 June 2009, which applies to the FW Act by virtue of s 40A of the FW Act. The Deputy President reasoned that, although 21 days after the date of the termination of employment was 23 September 2022, this date was a public holiday in Victoria, and the next working day was 26 September 2022. Notwithstanding that the appellant is located in the Australian Capital Territory and Ms Drew lives in New South Wales, the Deputy President considered that the Melbourne registry was a place in which the filing of Ms Drew’s application might be done and it was reasonable for it to be done there taking into account that Ms Drew had engaged Melbourne-based lawyers. On this basis the Deputy President concluded that, by operation of s 36 of the AI Act, Ms Drew had filed her application within the time period prescribed by s 394(2)(a) of the FW Act. The Deputy President’s order was as follows:

A.Further to my decision issued on 15 December 2022 [2022] FWC 3232, I order that the Respondent’s jurisdictional objection on the ground that the application was filed out of time is dismissed.

B. This matter will now be referred for conciliation.

In its notice of appeal, the appellant contends that the Deputy President’s decision was in error, including because:

·the Deputy President erred by determining that the matter had a connection with Victoria and in doing so, that there was no need for Ms Drew’s representatives to check whether the matter had a connection with another state or territory where the parties were actually located and registries were open in order to lodge the application within time; and

·the Deputy President erred in interpreting the AI Act by finding that the phrase “may be done” in s 36(2) of the Acts Interpretation Act relates to “place” and not to the “thing” to be done.

The appellant contends in its notice of appeal that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 30
Decision Date: 5 JANUARY 2023

CaseChat Overview and Summary

In the case of Mint Kitchens Pty Ltd v Chloe Drew, the appellant, Mint Kitchens Pty Ltd, sought an appeal against a decision and order made by Deputy President Dean on 15 December 2022. The decision concerned the timeliness of an unfair dismissal application lodged by Ms Chloe Drew. Ms Drew filed her application on 26 September 2022, and the appellant argued that this was outside the 21-day time limit prescribed by section 394(2)(a) of the Fair Work Act 2009 (Cth). However, the Deputy President found that the application was timely, considering that 21 days after the dismissal, 23 September 2022, was a public holiday in Victoria, making the next working day, 26 September 2022, the appropriate date for filing.

The legal issues before the court were whether the Deputy President correctly applied section 36 of the Acts Interpretation Act 1901 (Cth) to determine the timeliness of Ms Drew's application and whether there was a need to consider alternative registries in other states or territories. The appellant contended that the Deputy President erred in interpreting the relevant provisions and that the balance of convenience favoured a stay of the conciliation pending the appeal's determination. The court had to assess the arguability of the appeal and the balance of convenience in deciding whether to grant a stay.

The court found that the appellant had reasonable prospects of success on the appeal, as it raised an issue of novelty and wider significance. However, the balance of convenience did not favour a stay. The court determined that Ms Drew would be prejudiced by delaying the conciliation, which offered an opportunity to settle the matter and avoid further litigation. The court concluded that the refusal of the stay would allow the parties to focus on resolving the dispute at the earliest opportunity, potentially leading to a settlement and avoiding unnecessary costs and stress. Therefore, the stay application was refused.

The court's final order was that the stay application by Mint Kitchens Pty Ltd was refused, allowing the conciliation conference to proceed as scheduled. The court did not grant a stay of the conciliation order pending the determination of the appeal. This decision ensures that the conciliation process can continue, providing an opportunity for the parties to explore a settlement and potentially avoid further legal proceedings.

Orders