[2013] FWC 3593

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

Mr Ronald Hemi
BMD Constructions Pty Ltd



Application for relief from unfair dismissal - whether application made within 21 days - where day of lodgement falls on a public holiday - Acts Interpretation Act - application due on 22nd day.

[1] Mr Ronald Hemi (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 2 April 2013, seeking an unfair dismissal remedy. The Applicant had been dismissed from his employment at BMD Constructions (“the Respondent”) on 11 March 2013.

[2] The dismissal took effect that same day, according to the Applicant.

[3] On 2 April 2013, the application for an unfair dismissal remedy under section 394 of the Act was made. The application is 1 day out of time in respect of the requirement of s.394(2)(a) of the Act. The Respondent had pressed for the determination of this “jurisdictional” point prior to the application being conciliated.

[4] Section 394 (2)(a) of the Act provides as follows:

[5] In light of this it is necessary for the Applicant to seek a favourable exercise of discretion under section 394(2)(b) of the Act. The exercise of discretion in this regard by the Fair Work Commission is a conditioned discretion, by virtue of the operation of s.394(3) of the Act. These provisions are as follows:

[6] A telephone hearing in relation to this matter was conducted on 6 June 2013.

[7] Both the Applicant and the Respondent agreed that the application was made one day after the 21 days stipulated at s.394(2)(a) of the Act. But whether the application was in fact made one day after the applicable time frame is a matter for determination.

[8] The Applicant for his part contended that his application was late because he had not managed to make the application on a public holiday. The Applicant's reason for the delay was as follows:

[9] The Applicant was dismissed on Monday 11 March 2013.

[10] Upon my examination of the 2013 calendar, the last day on which the Applicant could have made his application such that it was compliant with s.394(2)(a) of the Act was Monday, 1 April 2013. This is 21 days after the dismissal took effect (with Tuesday 12 March being counted as the first day).

[11] Monday, 1 April 2013 was Easter Monday, a gazetted public holiday.

[12] Did the application fail to comply with s.394(2) of the Act?


Calculating periods of time



Column 1
If the period of time:

Column 2
then the period of time:


is expressed to occur between 2 days

includes both days.


is expressed to begin at, on or with a specified day

includes that day.


is expressed to continue until a specified day

includes that day.


is expressed to end at, on or with a specified day

includes that day.


is expressed to begin from a specified day

does not include that day.


is expressed to begin after a specified day

does not include that day.


is expressed to end before a specified day

does not include that day.


[13] In the current case, the Act requires at s. 394(2)(a) , that the application must be made within 21 days after the dismissal took effect. That is, the application must be made within 21 days after the date on which the dismissal took effect. This is a situation which accords with item 6 in the above schedule and is demonstrated by way of example 6 above.

[14] It is apparent that 21 days from March 11, 2013 (with the first day being counted as 12 March 2013) means that the statutory period of time ends on 1 April 2013. As I have mentioned above, the first day of April 2013 was a public holiday for reasons of being Easter Monday.

[15] That is, the 21 day period ended on a public holiday.

[16] Section 36(1) of the Acts Interpretation Act 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.

[17] In the current circumstances, the application before me was not required to be made until 2 April 2013.

[18] The application was made on 2 April 2013.


[19] The application before me was made within 21 days of the dismissal taking effect, by virtue of the operation of the Acts Interpretation Act in relation to the requirements of s.394(2)(a) of the Act. In the current case, this means the application was not made until the 22nd day after the dismissal had taken effect. But accounting for the public holiday upon which the application was due, that day did not count for the purposes of the 21 day requirement. In such circumstances, the Applicant in effect had 22 calendar days within which to make the application.

[20] There is no requirement for me to exercise my discretion to allow for the application in another period of time. This is because the application is consistent with the Act’s requirements (under s.394(2)(a) of the Act).

[21] The application is now referred for conciliation, as it was originally destined until this matter was agitated.



Mr R. Hemi, Applicant.

Mr G. Power, for the Respondent.

Mr S Thomas, for the Respondent.

Hearing details:



6 June

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