Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [2014] FWC 8177 of Commissioner Cloghan at Perth on 24 November 2014 in matter number U2014/9591 - s.394(2) - Acts Interpretation Act 2901 - recognition of Saturdays and Sundays.

[1] This decision deals with an appeal made by Miss Cahill against a decision 1 of Commissioner Cloghan on 24 November 2014. In that decision the Commissioner concluded that Miss Cahill had lodged an unfair dismissal application outside of the 21 day time limit specified in s.394 of the Fair Work Act 2009 (the FW Act). The Commissioner was not satisfied that this time limit should be extended and accordingly, dismissed Miss Cahill’s application.

[2] Miss Cahill’s appeal is made on the grounds that the termination of her employment took effect on either Saturday 13 or Sunday, 14 September 2014. She lodged her application on Monday 6 October 2014. Consequently, depending on the date that termination took effect, the 21st day fell on either Saturday 4 October or Sunday, 5 October 2014. Miss Cahill asserts that the Commissioner’s decision is in error because the FW Act should be applied consistent with s.36 of the Acts Interpretation Act 1901 which states:

“ACTS INTERPRETATION ACT 1901 - SECT 36

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
Item	Column 1 If the period of time:	Column 2 then the period of time:
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.”

[3] Miss Cahill asserts that, as her application was lodged on the first day following the Saturday or Sunday, it should be taken to be lodged within time.

[4] Miss Cahill’s appeal was listed for hearing in Perth on 12 January 2015. On 24 December 2014 the respondent, Bstore Pty Ltd T/A Bstore for Birkenstock forwarded the following advice to the Commission.

“We have carefully considered the nature of the Applicant's appeal.

The Respondent does not wish to contest the appeal and is willing to concede the appeal on the ground that the application for unfair dismissal was made within 21 days after the dismissal took effect by virtue of operation of the Acts Interpretation Act 1901 (Cth).

Subject to leave of the Full Bench, the Respondent is willing to reach consent with the Applicant on the following terms:

1. Permission to Appeal be Granted.
2. The Appeal be upheld on the basis that the application for unfair dismissal was made within 21 days after the dismissal took effect by virtue of operation of the Acts Interpretation Act 1901 (Cth).
3. The Decision of Commissioner Cloghan in [2014] FWC 8177 and Order PR557862 be quashed.
4. The matter be listed for conciliation before a Fair Work conciliator on a date to be fixed by the parties.

The Respondent will not be represented by a lawyer or a paid agent at the hearing set down for 12 January 2014 (if it is not vacated).

Please do not hesitate to contact me if you require any further information.

We have copied the Applicant into this email.”

[5] The appeal hearing was cancelled on this basis. We have considered the Commissioner’s decision in the context of the advice before us.

[6] We are satisfied that Miss Cahill’s unfair dismissal application should be taken to have been lodged within 21 days consistent with the requirements of the Acts Interpretation Act 1901. As a consequence we consider that the Commissioner’s decision to dismiss the application was in error and that error was of a nature that meets the requirements in s.400 of the FW Act such that permission to appeal should be granted in the public interest.

[7] The Commissioner’s decision and Order are quashed. An Order (PR559754) reflecting this decision will be issued. Miss Cahill’s unfair dismissal application will be referred for conciliation.

 1   [2014] FWC 8177

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