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The 21 day limitation period for filing an unfair dismissal application ends on a weekend or public holiday.  When should the application be filed?

The 21 day limitation period for filing an unfair dismissal application ends on a weekend or public holiday.  When should the application be filed?

Published on January 30, 2020 by Wing Ho | 何宛穎律師Wing Ho | 何宛穎律師

Employees who believe they have been unfairly dismissed must file an application with the Fair Work Commission (FWC) within 21 days after the dismissal took effect, as per s 394(2) of the Fair Work Act 2009 (Cth) (the FW Act).  What happens if the last day of the 21 day limitation period falls on a weekend or public holiday?

What is the answer?

Surprisingly, this question has given rise to some inconsistent FWC decisions, which are briefly discussed below.  The very recent FWC decision of Alastair Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Boyd) has examined those FWC decisions and has now (hopefully) put an end to the confusion.  Boyd clarifies that if the last day of the statutory 21 day limitation period falls on a Saturday, Sunday or a public holiday in the State where the application is to be filed, then by operation of law, the time for filing the application would be extended to the following business day.

Facts of Boyd

Mr Boyd was an employee of MarketTrack Global Pty Ltd T/A Numerator (the Respondent).  His employment with the Respondent was terminated effective from 16 September 2019.  The Respondent’s premises, where Mr Boyd was based, was in New South Wales (NSW).

The statutory 21 day limitation period would have expired on Monday, 7 October 2019, which was a Labour Day public holiday in NSW.  Mr Boyd’s lawyer, whose office was located in NSW, filed the application on 8 October 2019.

On 11 October 2019, the FWC Registry staff then notified Mr Boyd’s lawyer that the application was filed out of time and indicated that the matter would be scheduled for conciliation, and, if conciliation failed, then the matter would be referred on to a Member of the FWC to determine whether an extension of time should be granted.  Mr Boyd’s lawyer wrote to the FWC on the same day, arguing that the application was filed in time due to the operation of s 40A of the FW Act and s 36 of the Acts Interpretation Act 1901 (Cth) (the AI Act), and therefore no extension of time would be required.

After further correspondence between Mr Boyd’s lawyer and the FWC Registry staff, the matter was referred to Deputy President Dean for determination.  On 25 October 2019, Deputy President Dean indicated her preliminary view that the application was filed within time and that an extension of time was unnecessary.

On 1 November 2019, the Respondent expressed their objection to Deputy President Dean’s preliminary view by filing a Form F3 (Employer’s Response).  They argued that the application was filed outside the statutory time limit for the following reasons:

“a. the final day of the 21 day period fell on Monday 7 October 2019;

b. the Applicant’s application was lodged with the Commission a day later at 4.41pm on 8 October 2019;

c. by virtue of subsections 36(2) and (3) of the Acts Interpretation Act 1901 (Cth), the 21 day time limit can only be extended to the next business day in circumstances where the final day of the 21 day falls on “[public holiday] on which the place or office is closed for the whole day”;

d. Monday, 7 October 2019 was a State public holiday and not a National public holiday. While the Commission’s New South Wales office was closed on that day, other Commission offices nationally were opened and were able to accept applications electronically (as provided in the Commission’s Unfair Dismissal benchbook);

e. The Application was lodged electronically on 8 October 2019, and there is nothing to suggest it could not have been lodged electronically on 7 October 2019; and

f. no evidence has been provided by the Applicant that he had made any attempt to file, or had filed, electronically his application with the Commission on or before 7 October 2019, which was the final day of the 21 day period.”

What is the relevant legislation?

Section 40A of the FW Act had the effect of stipulating that the version of the AI Act as in force on 25 June 2009 applies to the FW Act, and that future amendments of the AI Act do not apply.

As at 25 June 2009, s 36 of the AI Act provided:

36  Reckoning of time

(1)  Where in an Act any period of time, dating 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 day or of 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 anything falls on a Saturday, on a Sunday or on a day which is 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 or bank holiday in that place.

Section 36 of the AI Act was then amended in 2011.  The relevant portion of the provision now reads:

(1) …

(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.

In the Respondent’s submissions, reference was made to an earlier FWC decision, McDonald v Foamland[1] (McDonald) as well as the FWC Benchbook.  In McDonald, the 21 day limitation period ended on 9 June 2014, which was a Queen’s Birthday public holiday in all States except Western Australia.  The FWC there noted that unfair dismissal applications could be filed electronically and therefore held that if another registry of the FWC was open on 9 June 2014, the application should have been filed there.  In doing so, the FWC in McDonald placed reliance upon the 2011 version of s 36 of the AI Act.  Deputy President Dean considered that McDonald was incorrectly decided.

In response, Mr Boyd contended that the Respondent’s submissions were based on a faulty premise, and submitted that s 36(2) of the AI Act deliberately refers to the place at which the thing may be done, not a place or any place.  Therefore, s 36(2) of the AI Act as in force on 25 June 2009, operated through s 40A of the FW Act to extend the time for making the unfair dismissal application to 8 October 2019.  In support of this submission, reference was made to Springfield v Hegele Logistics Australia Pty Limited (Springfield),[2] and Elan Copra Trading Pty Limited[3]Springfield was a FWC decision which relied on the 2009 version of s 36 of the AI Act.  It was also noted in Springfield that the FWC Benchbook was a general guide only, not authority, and therefore could not be binding upon the FWC.

The FWC accepted Mr Boyd’s submissions, and held that the correct approach to construing s 394(2) of the FW Act was by reference to the version of s 36(2) of the AI Act as in force on 25 June 2009.  That is, if the last day of the 21 day limitation period falls on a Saturday, Sunday or public holiday in the State where the unfair dismissal application is to be filed, the Applicant may have until the following business day to file the application.  Applying this conclusion to Mr Boyd’s case, there was no connection with any state or territory other than NSW, and therefore Mr Boyd’s lawyers were not required to check whether a FWC registry was open in another state or territory in order to file the application within time.

Conclusion

Boyd provides important clarifications regarding the 21 day limitation period for filing an unfair dismissal application.  The key findings were:

  1. If the last day of the 21 day limitation period falls on a Saturday, Sunday or a public holiday in the State where the unfair dismissal application is to be filed, the time for filing the application is extended, by operation of law, to the following business day.
  2. FWC Benchbooks are guidelines only, and are not to be treated as authority.

Boyd also shows that the AI Act fails to adequately address the reality that electronic filing is increasingly being used in courts around Australia.  It is doubtful that the AI Act will be amended anytime soon to address this technological phenomenon.

Despite the findings of Boyd, prospective applicants should act quickly and avoid leaving the filing of their unfair dismissal applications to the last day.  The FWC is well known for strictly enforcing the 21 day limitation period and has granted very few applications for extension of time.

Note: the FWC’s Unfair Dismissals Benchbook has since been updated to reflect the legal position in Boyd.

The foregoing is provided for general information purposes only and does not constitute legal advice.  Employees who are concerned that they have been unfairly dismissed are encouraged to obtain specialist legal advice as soon as possible.

 


[2] [2017] FWC 35254.

[3] Elan Copra Trading Pty Limited v JK International Pty Limited [2005] SASC 501.

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