Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against order [PR557215] of 30 October 2014 and decisions [2014] FWC 7893 of 7 November 2014 and 15 December 2014 issued by Senior Deputy President Drake at Sydney in matter number U2014/1950 re extension of time.

[1] This is an application for permission to appeal and, if granted, an appeal against a decision of Senior Deputy President Drake in which she refused to grant an extension of time for the lodgement of an application for an unfair dismissal remedy.

[2] Mr Stedman, the appellant, filed an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) in respect of the termination of his employment with Transdev NSW Pty Ltd (Transdev or the respondent). He filed the application himself and did not have a representative to assist him. In his application, he indicated that, on 9 May 2014, he was notified of his dismissal and that the dismissal took effect on that day. If that was so, his application under s.394, which was filed on 2 June 2014, was outside the 21-day time limit in s.394(2) of the Act. The parties proceeded on the basis that his application was filed two days out of time. The respondent opposed the application for an extension of time and Senior Deputy President Drake listed the matter for hearing. On appeal, it was apparent that in fact the appellant’s dismissal took effect on 10 May 2014 and his s.394 application was filed in time. We will now refer to the relevant legislation and some background to put this into context.

Relevant legislation

[3] Section 394 of the Act is in these terms:

“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.

[4] When calculating time limits under the Act, s.40A is relevant. It provides:

“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.”

[5] Section 36 of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act), as it was in force on 25 June 2009, 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.”

Appearances and permission to appear

[6] As we have earlier indicated, the appellant did not identify any representative in his s.394 application. In the hearing before the Senior Deputy President, he was assisted by a pro bono solicitor whose role was described to the appellant as being to make sure all the facts relied on by him were identified. 1 The respondent was represented before the Senior Deputy President by Ms Garland and Ms Clements, each being from the Department of People and Culture at Transdev. The appellant appeared for himself before us on the appeal and Ms Clements appeared for Transdev.

[7] Prior to the hearing of the appeal, permission to appear for Transdev was sought by Chadwick Workplace Lawyers. Those solicitors filed detailed written submissions and indicated that it would be appropriate for the Full Bench to determine the appeal “on the papers” without the need for the parties to attend a hearing. We ruled that we were prepared to accept the written submissions and allow Transdev to rely on them but, in all the circumstances of this case, and the narrow appeal issues that were then apparent, permission would not be granted to those solicitors to represent Transdev. We should here note that although the written submissions identify the date of termination taking effect as 10 May 2014, nonetheless they maintain that the s.394 application was lodged two days outside of the statutory time limit.

The date the appellant’s dismissal took effect and the decisions under appeal

[8] As we have earlier indicated, in his s.394 application the appellant identified 9 May 2014 as being both the date he was notified of his dismissal and the date his dismissal took effect. The application was filed on Monday, 2 June 2014. From the time of filing his application, he had understood it had been filed two days out of time. The employer’s response did not disabuse him of this understanding. This was despite the fact that, in its response, it identified the date the dismissal took effect as 10 May 2014. 2

[9] That 10 May 2014 was the date the appellant’s dismissal took effect was also made clear from the terms of his letter of dismissal, dated 13 May 2014. That letter was annexed to his s.394 application. It confirmed that “the company has made the decision to terminate your employment effective 10 May 2014.”

[10] In the hearing before Her Honour she asked the pro bono solicitor to confirm the date of termination and he replied that “the date of termination took effect from 10 May.” The respondent was asked to confirm that date and agreed with it. 3 After a short hearing on 12 September 2014, Her Honour reserved her decision.

[11] On 30 October 2014, Her Honour issued an order declining to extend time and dismissing the s.394 application. 4 Attached to the order was a short memorandum, the terms of which appear to be directed to the appellant. He was informed that Her Honour had not been persuaded to extend the time for lodgement and had issued an order to that effect. If he wished to appeal the order he must do so within 21 days of its date. He was advised that if he wished for written reasons for the order, a request should be directed to Her Honour to that effect. A request for reasons was made by the appellant.

[12] On 7 November 2014, Her Honour issued her reasons for decision. 5 The decision contained some factual errors, however it is not necessary for us to refer to them in any detail as she subsequently issued a correction to that decision which we refer to below.

[13] On 10 November 2014, three days after Her Honour’s decision, the appellant lodged this appeal. On 9 December 2014, Ms Clements sent an e-mail to Her Honour’s chambers. It is not apparent from the e-mail that a copy was forwarded to the appellant. Ms Clements referred to the decision of 7 November 2014 and identified two factual errors in it. She advised that, in the proceedings before Her Honour, the parties had agreed that the termination date was 10 May 2014. She also indicated that the s.394 application was lodged by the appellant on 2 June 2014, not 2 September 2014, which had been referred to in the 7 November decision. Ms Clements asked Her Honour to reissue her decision correcting the two errors that had been identified. She asked for a corrected decision to be issued as a matter of urgency.

[14] Her Honour issued a further decision on 15 December 2014 indicating that her decision of 7 November 2014 was corrected. 6 The corrected decision identified the s.394 as having been lodged on 2 June 2014 and that the application was two days out of time. At paragraph [14] of the decision, Her Honour indicated that the appellant first became aware of the cessation of his relationship with the respondent on 10 May 2014. The balance of the decision was the same as the earlier decision and considered the numerous factors which Her Honour had taken into account in reaching her decision to refuse to extend time.

The hearing before us

[15] When the appeal commenced before us, we indicated that we wished to raise a preliminary issue with the parties. We confirmed with the appellant and respondent that the dismissal of the appellant took effect on 10 May 2014 and that the s.394 application was filed on Monday, 2 June 2014. We indicated that, on our calculations, the application was filed in time. We identified s.40A of the Act and s.36 of the Acts Interpretation Act as it was on 25 June 2009. We provided a copy of that section to the parties. We said that, on our calculations, the 21st day in fact fell on Saturday, 31 May 2014. That being the case, the last day for the appellant to file his application was Monday, 2 June 2014, the date on which he did in fact file it. We gave the respondent an opportunity to consider this preliminary matter. We noted at that time that it appeared Ms Clements had a legal representative in the court with her.

[16] When the matter resumed, the respondent indicated that it conceded the calculations which had been made by us and that the s.394 application had been filed in time. Nonetheless, the respondent sought an adjournment of the appeal hearing so as to allow the appellant and respondent to have some discussions with a view to attempting to resolve the whole of the s.394 application. The appellant agreed to that proposal.

[17] Subsequently, both the appellant and respondent informed us that the parties had not been able to reach a settlement. Accordingly, it is necessary for us now to make a final ruling on this appeal.

Nature of this appeal

[18] An appeal under s.604 of the Act may only be pursued with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. However, in the case of appeals against decisions made under Part 3-2 of the Act (the unfair dismissal provisions), as this appeal is, s.400 also applies.

[19] Section 400(1) of the Act provides that despite subsection 604(2), the Commission must not grant permission to appeal from a decision under Part 3-2 of the Act unless it considers that it is in the public interest to do so. Section 400(2) provides that an appeal from a decision under Part 3-2 of the Act can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

Our Decision

[20] On our calculations, the dismissal of the appellant, taking effect on 10 May 2014, means that the 21st day fell on Saturday, 31 May 2014. His application was filed on Monday, 2 June 2014 being, in terms of s.36 of the Acts Interpretation Act, “the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday” in New South Wales.

[21] We have decided that this is a matter in which it is in the public interest to grant permission to appeal. We have identified the error in Her Honour’s decision. It is, in our opinion, an error of law in that it incorrectly applies s.36 of the Acts Interpretation Act to the time limit prescribed by s.394(1) of the Act. The consequence of that error was such as to deprive the appellant of his right to pursue a s.394 application. We have decided to uphold the appeal. We will quash both decisions of the Senior Deputy President, as well as the order she issued dated 30 October 2014. Orders to this effect will issue at the same time as this decision.

[22] The s.394 application will be referred to a Member of the Commission for conciliation and/or arbitration.

SENIOR DEPUTY PRESIDENT

Appearances:

G Stedman on his own behalf.

E Clements for the respondent.

Hearing details:

Sydney.

2015.

14 January.

 1   PN15.

 2   See the answer to question 1.4 in the Form F3.

 3   PN27-29.

 4   PR557215.

 5   [2014] FWC 7893,

 6  Ibid

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