Young v Ward McKenzie Pty Ltd

[2016] FWC 1843

[2016] FWC 1843

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
T Young
v
Ward McKenzie Pty Ltd
(U2016/4809)
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 24 MARCH 2016

Application for relief from unfair dismissal – jurisdictional objection dismissed.

[1]        On 23 February 2016, Ms T Young (Ms Young) applied, pursuant to s.394 of the Fair

Work Act 2009 (the Act) for relief in respect of the termination of her employment by Ward

McKenzie Pty Ltd (Ward McKenzie).

[2]        On 26 February 2016, in its Form F3, Ward McKenzie objected to the application on

the basis that it was made beyond the 21 day period specified in s.394(2)(a) of the Act,

advising that the termination took effect on 1 February 2016, the date cited by Ms Young in

her application (Form F2). In written submissions filed on 15 March 2016, Ward McKenzie

cited an earlier date 29 January 2016 on which the termination was said to take effect.

[3]        Section 394(2) of the Act requires that an application for relief in respect of the

termination of employment 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).”

[4]        It is necessary to first determine whether the application by Ms Young was made

within 21 days after the dismissal took effect.

[5]        Notice of termination was posted to Ms Young by Ward McKenzie in a letter dated

11 January 2016 and was received by her on 12 January 2016. It was in the following terms:

“We hereby give you 3 weeks’ notice as per your contract of employment dated 23/9/13

(clause termination of contract) that your employment is to be terminated, from the

date of this letter.”

[2016] FWC 1843

[6]        Ms Young was also advised prior to 11 January 2016 of the intention by Ward

McKenzie to terminate her employment, with notice, in the terms confirmed in the 11 January

2016 letter. Whilst the earlier verbal advice of the termination in the terms of the 11 January

2016 disposes of any issue concerning the later receipt of the letter by Ms Young, the verbal

notice was provided in the terms of and subject to the timing of the giving of notice in that

letter. I rely on that letter as to the timing of the notice.

[7]        The termination clause of the employment contract provided:

“For termination or resignation beyond the probationary period, employment may be

terminated by the giving of the notice in accordance with award provisions, by either

party, or by payments in lieu or forfeiture of the equivalent salary in lieu of notice.”

[8]        The employment contract identified the relevant award as the Grocery Products

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Manufacture – Manufacturing Grocers Award 1997. That Award has been replaced by the

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Manufacturing and Associated Industries and Occupations Award 2010	as a result of the
making of Modern Awards with effect from 1 January 2010.

[9]        In respect of notice, the Award relevantly provides in clause 22.1 – Termination of

employment – that notice of termination is provided for in the National Employment

Standards (NES).

[10]      For completeness, I note that clause 17.1 of the Grocery Products Manufacture -

Manufacturing Grocers Award 2003, in any case, provided for notice relevantly in the same

terms as s.117 of Act.

[11]      The NES, in s.117 of the Act, relevantly provides for a minimum period of notice (or

payment in lieu) of a scale of weeks’ notice for specified periods of continuous service. It is

clear that the three weeks’ notice provided to Ms Young is sourced from the statutory

requirements in s.117 of the Act.

[12] Guidance as to the interpretation of the expression “week” in s.117 is found in s.36 of

the Acts Interpretation Act 1901 – s.36, which deals with calculating time. Item 5 of s.36(1)

deals with time “expressed to begin from a specified day” (as is the case in the termination

letter). It provides that a week (or the three weeks in this case) “does not include that day”.

Thus the three weeks’ notice does not include 11 January 2016.

[13]      It follows that the period of notice commenced on the next day – Tuesday, 12 January

2016 and ran through to and including Monday, 1 February 2016 – with the termination

taking effect on 2 February 2016.

[14]      I therefore find that the termination of employment took effect from 2 February 2016.

[15]      To be lodged in time in accordance with s.394(2)(a) of the Act, Ms Young’s

application needed to be made, within 21 days after the dismissal took effect, which does not

include the day of the termination (see item 6 of s.36(1) of the Acts Interpretation Act 1901).

Twenty-one days after the termination on 2 February 2016, is 23 February 2016.

[2016] FWC 1843

[16]      The application by Ms Young was lodged at 4.31 p.m. on 23 February 2016.

[17]      The application by Ms Young was lodged in time.

[18]      The application will proceed to conciliation. The parties will be advised of the time

and date for a conciliation conference in due course.

SENIOR DEPUTY PRESIDENT

Appearances:

T Young on her on behalf.

J Borg with S Clarkson for Ward McKenzie Pty Ltd.

Hearing details:

2016.

Melbourne:

March 23.

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