Sandy Archer v Tada Pty Ltd T/A Buxton Portsea Sorrento
[2014] FWC 5412
•15 AUGUST 2014
| [2014] FWC 5412 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sandy Archer
v
Tada Pty Ltd T/A Buxton Portsea Sorrento
(U2014/6860)
COMMISSIONER LEE | MELBOURNE, 15 AUGUST 2014 |
Application for relief from unfair dismissal - extension of time - where day of lodgement falls on a public holiday, followed by a Saturday and Sunday - Acts Interpretation Act 1901 - application due on 24th day.
[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms. Sandy Archer (the Applicant) claims that she was unfairly dismissed from her employment with Tada Pty Ltd T/A Buxton Portsea Sorrento (the Respondent).
[2] The application was made by the Applicant on 28 April 2014. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent objected to the application on the basis that it had been made outside the statutory time limit. The Respondent also submits that the Applicant resigned from her employment and was therefore not dismissed within the meaning of the Act.
[3] The Applicant asserts that the date her dismissal took effect was the 4 April 2014. The Applicant claims she was advised by the Respondent via a phone call on the morning of 4 April 2014 from Mr. Troy Daly (a director of the Respondent) that her resignation had been accepted. However the Applicant disputes that she resigned her employment.
[4] A hearing was held before me on 20 June 2014. The Applicant represented herself. Mr Troy Daly appeared on behalf of the Respondent.
[5] Section 394 of the Act provides as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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] Mr Daly submitted that the Applicant resigned on the 3 April 2014 and had until the 24 April 2014 to lodge an unfair dismissal claim. 1 As the application was made on 28 April 2014, the Respondent asserted, in effect that the application was lodged 4 days out of time. The Applicant conceded that the application was made after the 21 days timeframe but did not specify the number of days the Applicant believed her application was out of time. The Applicant did state, “I was also under the belief that I had to send the paperwork no later than 21 days, which I sent it on the 21st day instead of to arrive within 21 days”.2 The Applicant also gave evidence of a number of reasons for the delay.
[7] As the Applicant has asserted that the termination took effect on 4 April 2014, and the application was made on 28 April 2014, the application has been made 3 days out of time in respect of the requirement of s.394(2)(a) of the Act. If the Respondent’s version of the facts is correct, the Applicant resigned on 3 April 2014. To be clear, this decision does not determine the important question as to whether or not there was a termination of employment at the initiative of the employer. In order to determine this matter (time of lodgement of application only), I have assumed that the date the Applicant states the dismissal took effect, that is, Friday 4 April 2014 is correct.
[8] If the date of effect of dismissal is 4 April 2014, then the last day on which the Applicant could have made her application such that it was compliant with s.394(2)(a) of the Act was Friday 25 April 2014 as this is 21 days after the dismissal took effect (with Saturday 5 April 2014 being counted as the first day). Friday 25 April 2014 was a gazetted public holiday for the commemoration of ANZAC Day.
[9] While it was not raised by either party in the proceedings before me, the question arises as to whether the application actually fails to comply with s.394(2) of the Act. If the application was actually made within time, a determination as to whether to extend the time under section 394(3) would not be necessary. A decision dealing with the correct approach to calculating time for the purposes of this provision was dealt with by Senior Deputy President Richards in Hemi v BMD Constructions Pty Ltd. 3 In that decision, His Honour considered the application of the Acts Interpretation Act 1901 to the relevant provisions in this case. The Acts interpretation Act provides as follows:
“ACTS INTERPRETATION ACT 1901 - SECTION 36(1)
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.”
[10] While the factual circumstances in this matter are of course different to that dealt with in the Hemi v BMD Constructions Pty Ltd 4, I agree with His Honours application of the Acts Interpretation Act1901 to s.394(2)(a) of the Act and will apply the same approach.
[11] The Act requires at s.394(2)(a), that the application must be made within 21 days after the dismissal took effect. Consistent with example 6 above, the 21 day period in this case commenced on 5 April 2014.
[12] An examination of the 2014 calendar shows that 21 days from April 5 2014 (with the first day being counted as 5 April 2014) means that the statutory period of time ends on 25 April 2014. 25 April 2014 was a public holiday in every state of the Commonwealth for the commemoration of ANZAC Day.
[13] Therefore, the 21 day period ended on a public holiday.
[14] Section 36(1) of the Acts Interpretation Act1901 as set out above indicates that if a thing is to be done on a public holiday the thing may be done on the next day. The next day was a Saturday and the next day after that a Sunday. The Acts Interpretation Act 1901 also provides that if the last day for doing a thing is a holiday, then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday. The next such day was Monday 28 April 2014.
[15] Therefore, in the current circumstances, the application before me was not required to be made until 28 April 2014. The application was made on 28 April 2014.
Conclusion
[16] The application before me was made within 21 days after the dismissal taking effect, by virtue of the operation of the Acts Interpretation Act1901 in relation to the requirements of s.394(2)(a) of the Act.
[17] In the circumstances of this case, this means the application was not made until the 24th day after the dismissal had taken effect. However, as the application was due on ANZAC Day, and that day was followed by a Saturday and a Sunday, those 3 days did not count for the purposes of the 21 day requirement. In the particular circumstances of this case, the Applicant effectively had 24 calendar days within which to make the application.
[18] Therefore there is in fact no requirement for an extension of time pursuant to S. 394(3) to be considered as the application is consistent with the Act’s requirements (under s.394(2)(a) of the Act).
[19] The Respondent’s objection that the application was made outside the time prescribed by the Act is dismissed. An order dismissing the objection will be issued concurrently with this decision.
[20] To be clear, I have not determined the Respondent’s objection to the application with regard to resignation. This matter will be re-allocated to the Unfair Dismissals Case Management Team for further programming in relation to the substantive matters.
COMMISSIONER
Appearances:
S Archer representing herself
T Daly on behalf of the Respondent
Hearing details:
2014.
Melbourne:
June 20
1 See Exhibit D1
2 See exhibit S1
3 [2013] FWC 3593
4 [2013] FWC 3593
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