Mrs Patricia Dunham v Sunco Motors Pty Ltd T/A Sunco Motors

[2016] FWC 5855

[2016] FWC 5855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Patricia Dunham
v
Sunco Motors Pty Ltd T/A Sunco Motors
(U2016/7287)

COMMISSIONER HUNT BRISBANE, 19 AUGUST 2016

Application for relief from unfair dismissal - extension of time – last day for filing application fell on a weekend - application made within required time.

[1] On 30 May 2016, Mrs Patricia Dunham filed an application pursuant to subsection 394(1) of the Fair Work Act 2009 (the Act) claiming she was unfairly dismissed by Sunco Motors Pty Ltd T/A Sunco Motors.

[2] 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.

[3] It is not in dispute that Mrs Dunham’s dismissal took effect on 7 May 2016. It is also not in dispute that Mrs Dunham’s representative filed the application on 30 May 2016.

[4] Both parties filed a brief outline of submissions in relation to the matter. I consider it appropriate to determine the jurisdictional issue ‘on the papers’.

Legislation

[5] Section 394 of the Act relevantly states as follows:

“394 Application for 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.”

[6] 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.”

[7] 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

[8] Pursuant to s.394(2)(a) of the Act, Mrs Dunham had 21 days to file her application. The last day of the 21 day period that Mrs Dunham had to file her application fell on Saturday, 28 May 2016.

[9] I have considered the legislation set out above and the fact that Mrs Dunham’s last day for filing fell on a weekend. Mrs Dunham’s representative filed the application on Monday, 30 May 2016, being the first day following which is not a Saturday, a Sunday or a public holiday.

[10] I determine that Mrs Dunham’s application was made within the statutory timeframe as set out in s.394(2) of the Act.

[11] As the application was not made out of time the matter will be listed for determination of the substantive application with further directions to issue for the filing of further material.

COMMISSIONER

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