Mr Michael Dutton v Dutton Group Pty Ltd T/A Southern Vales Accounting
[2013] FWC 9622
•13 DECEMBER 2013
[2013] FWC 9622 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Dutton
v
Dutton Group Pty Ltd T/A Southern Vales Accounting
(U2013/13745)
COMMISSIONER HAMPTON | ADELAIDE, 13 DECEMBER 2013 |
Application for relief from alleged unfair dismissal - whether extension of time required for the lodgement of the application - critical facts not in dispute - significant dispute about merit of the application but not presently relevant - immediate issue determined on papers - application made within time and valid - application to be further listed.
1. Background
[1] Mr Michael Dutton has made an application to the Commission under s.394 of the Fair Work Act 2009 in relation to what he contends was an unfair dismissal by Dutton Group Pty Ltd T/A Southern Vales Accounting (the Dutton Group).
[2] Mr Tony Dutton is the apparent principal of the Dutton Group and has made representations to the Commission in relation to this matter on its behalf.
[3] The application was originally listed for a voluntary conciliation process with a conciliator of the Commission in November 2013. However, prior to the scheduled conciliation conference, Tony Dutton raised concerns that the application may have been lodged outside of the time period allowed by the Act. In that light, he sought that a Commission Member determine that issue and indicated that the conciliation should take place only if found to be within time. 1
[4] I note that staff of the Commission in the unfair dismissal team had earlier provided Tony Dutton with an extract from the Act containing the lodgement requirements and the capacity for an extension of time to be made in certain circumstances. 2
[5] The application was assigned to me to determine the preliminary issue; namely whether the application was lodged out of time and required an extension of time, and if so, whether this should be granted.
[6] The precise basis upon which it was contended that an extension of time was required was not apparent from the application itself, or the position initially advanced by the Dutton Group. In due course, Tony Dutton confirmed that position.
[7] I note that considerable latitude was provided to the Dutton Group in confirming its position given Tony Dutton’s apparent personal circumstances.
[8] Both Michael Dutton and the Dutton Group have now confirmed their position in relation to the immediate issue 3 and it is appropriate that this issue be determined. I have done so on the basis of the written submissions provided by the parties given the fact that sufficient critical factual issues regarding the timing of the events are not in dispute. That is, the facts that are in dispute do not need to be determined at this point given the nature of the immediate issue and the operation of the Act in that regard. I also note the parties were advised that the Commission intended to deal with the immediate issue on this basis.
[9] Both parties have strong and divergent views about the merit of the application and the dismissal. Indeed, Tony Dutton sought that the Commission permit him to challenge the veracity of Michael Dutton’s material and the basis of the entire application. However, these divergent views are not presently relevant but will need to be considered and determined in any subsequent proceedings.
2. The timing of the dismissal and the application
[10] It is common ground that Michael Dutton was dismissed by the Dutton Group on the morning of Friday 30 August 2013. There is a dispute as to whether this took place at 9.30 am, or 10.00 am when a text from Tony Dutton about the dismissal was apparently received by Michael, or later that day when he apparently returned to the workplace and the termination was confirmed. This aspect does not need to be determined at this point for reasons that will also become clear.
[11] I presume for present purposes that the dismissal was intended to be effective immediately.
[12] The unfair dismissal application was lodged with the Commission by Michael Dutton on Friday 20 September 2013 at 10.53 am. This is common ground between the parties.
3. Is an extension of time required in these circumstances?
[13] Section 394 of the Act relevantly provides as follows:
“394 Application for an unfair dismissal remedy
….
(2) The application must be made:
(a) within 21-days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[14] Section 396 of the Act also provides that the Commission must determine (amongst other matters) whether the unfair dismissal application was made within the period required by s.394(2), which includes the potential extension to the 21-day period, before dealing with the merits of the application.
[15] The Dutton Group contends that s.394(2)(a) requires that the application is lodged within 21 days (made up of consecutive 24 hour periods) of the dismissal. That is, these days are to be measured from the time of the dismissal. In this case, the application should have been lodged by 9.30am on the day in question and was therefore 1.5 hours out of time based upon the employer’s view of the timing of the dismissal and the operation of the Act.
[16] Michael Dutton contends that the application was lodged on the last day of the 21-day time period allowed by the Act.
[17] The central issue is therefore when the 21-day time period commences and concludes in this case. It is clear that the 21-day period operates by reference to the day that the dismissal took effect. In this matter I have assumed for present purposes that the dismissal operated with immediate effect. If this was not the case, no issue about the timing of the lodgement of the application would arise in this matter.
[18] Importantly, the consideration of time periods under the Act is subject to the operation of s.36 of the Acts Interpretation Act 1901, which provides as follows:
“36 Calculating time
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time | ||
| Column 1 | Column 2 |
1 | is expressed to occur between 2 days | includes both days. |
2 | is expressed to begin at, on or with a specified day | includes that day. |
3 | is expressed to continue until a specified day | includes that day. |
4 | is expressed to end at, on or with a specified day | includes that day. |
5 | is expressed to begin from a specified day | does not include that day. |
6 | is expressed to begin after a specified day | does not include that day. |
7 | is expressed to end before a specified day | does not include that day. |
Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.
Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7-day period starting on 1 May and ending on 7 May.
(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.”
[19] This means that the 21-day period for the purposes of s.394 of the Act does not commence until the day after the dismissal takes effect. This is expressly confirmed by example 6 in s.36 set out above.
[20] In this matter, this means that the lodgement of the unfair dismissal application on Friday 20 September 2013 was within the 21-day period. That is, the application was lodged on the last day allowed by s. 394(2)(a) of the Act. It is also for this reason that the exact time at which the dismissal occurred on 30 August 2013 does not need to be determined at this stage.
[21] Accordingly, the application is already validly before the Commission and an extension of time as contemplated by s.394(2)(b) is not required.
[22] As a result, I have made no findings about the veracity or merit of either party’s position with respect to the application or the dismissal itself.
4. Further proceedings
[23] I am mindful that there has already been a significant delay in the progress of this matter and the parties appear to have very strongly held and divergent views. However, both parties are unrepresented and would benefit from the information and guidance that might arise from the normal conciliation process. I also note that the original position of the Dutton Group was that the preliminary issue should be determined and the application referred for conciliation if found to be valid.
[24] In these circumstances, I will refer the matter for conciliation with a Commission conciliator.
Written submissions:
2013
December 5, 9 and 10.
1 Email of 8 November 2013.
2 30 October 2013.
3 Both parties were given an opportunity to file materials to be taken into account by the Commission and each did so.
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