FWC 8489
The attached document replaces the document previously issued with the above code on 16 December 2019.
This is a correction to the paragraph numbers only.
Associate to Deputy President Dean
Dated 16 December 2019
| FWC 8489|
|FAIR WORK COMMISSION|
Fair Work Act 2009
MarketTrack Global Pty Ltd T/A Numerator
DEPUTY PRESIDENT DEAN
SYDNEY, 16 DECEMBER 2019
Application for an unfair dismissal remedy – whether application filed out of time.
 Mr Boyd made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy concerning the termination of his employment by MarketTrack Global Pty Ltd T/A Numerator (the Respondent).
 The Respondent raised a jurisdictional objection to Mr Boyd’s application on the ground that it was lodged outside the statutory time limit and that there were no exceptional circumstances justifying the granting of an extension of time. This decision deals with the jurisdictional objection.
 Mr Boyd’s employment with the Respondent was terminated with an effective date of 16 September 2019. The 21 day period prescribed by s.394(2) of the Act for Mr Boyd to make his unfair dismissal claim expired on Monday, 7 October 2019. That day was Labour Day and a public holiday in New South Wales. Mr Boyd’s application was filed by his representative, Toomey Pegg Lawyers, the following day on 8 October 2019.
 On 11 October 2019, the Registry staff of the Commission sent correspondence to Mr A Loel of Toomey Pegg Lawyers pointing to the fact that Mr Boyd’s application was received outside the 21 day period. The letter indicated that the matter would be scheduled for conciliation and in the event that the matter remained unresolved, the application would be referred to a Member of the Commission to consider whether an extension of time should be granted for the application to proceed.
 Mr Loel wrote to the Commission later on the same day. The correspondence reads, in part:
“The applicant respectfully submits that his application was lodged within the 21 day legislated timeframe. In that regard we note the following:
(a) pursuant to section 394(2), the application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect;
(b) pursuant to section 40A of the Fair Work Act, the Acts Interpretation Act 1901 (Cth), as in force on 25 June 2009, applies to the Fair Work Act;
(c) section 36(2) of the Acts Interpretation Act, as in force on 25 June 2009, provides that where the last day of any period prescribed or allowed for the doing of any thing falls on a public holiday in the place where the thing is to be or may be done, the thing may be done on the next day that is not a Saturday, Sunday or public or bank holiday in that place;
(d) the last day allowed for lodging an application for unfair dismissal remedy in respect of a dismissal that took effect on 16 September 2019 was, but for section 36 of the Acts Interpretation Act, Monday, 7 October 2019;
(e) the lodging of the application for unfair dismissal remedy in respect of employment within New South Wales is a thing that may be done in New South Wales;
(f) Monday, 7 October 2019 was a public holiday in New South Wales;
(g) the next business day in New South Wales after 7 October 2019 was Tuesday, 8 October 2019; and
(h) accordingly, the time for lodging the application was extended to 8 October 2019 and the present application was lodged within that time.
Therefore, in the applicant’s respectful submission, the application was lodged within time such that an extension under section 394(2)(b) is not required. Please confirm that the application was lodged within time and that an extension is not required.”
 After further communication between Mr Loel and Registry staff, the matter was subsequently referred to me for determination. On 25 October 2019 I caused correspondence to be sent to the parties to express my preliminary view that Mr Boyd’s application was filed within time and therefore an extension of time was unnecessary. The Respondent was advised that if it held a different view it should file a F3 form (Employer’s Response) indicating the objection.
 On 1 November 2019, the Respondent submitted the Form F3 and stated 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 "a [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.”
 The circumstances of this matter set out above provide an overview of each party’s arguments. The issue to be determined is whether s.36 of the Acts Interpretation Act 1901 (the AI Act) extended the time prescribed in s.394(2) of the Act in Mr Boyd’s case.
 I first set out the provision under the Act and the AI Act which are relevant to my consideration in this matter.
 Section 40A of the Act 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.
 Section 36 of the AI Act, as at 25 June 2009, provides:
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 replaced as a result of the Acts Interpretation Amendment Act 2011. Relevantly it now reads:
(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.
 The Respondent relied on the decision of Deputy President Wells in McDonald v Foamland 1 (McDonald) in support of its contention. In McDonald, the 21 day time period for which the applicant’s application was required to be filed ended on the Queen’s Birthday, which was a public holiday in all states except for Western Australia. The respondent submitted that s.36(3) of the AI Act was relevant and that the applicant could have filed his application on the last day as the Commission was open nationally to accept applications electronically. In this regard the Deputy President made the following observation:
“Relevantly, s.36(3) of the Acts Interpretation Act 1901 above is relevant in that it provides that if a thing may be done at another office or place which is open, then it should be done there. In reality this means that if another registry of the Commission was open on 9 June 2014 then the Applicant should have lodged his application in that registry.”
 Deputy President Wells went on to consider the submission referring to the relevant information from the Commission’s Unfair Dismissals Benchbook which stated:
“On state or local public holidays (such as Queen’s Birthday) the local Commission offices will be closed however the other Commission offices nationally will be open and able to accept applications electronically.”
 The Deputy President made further observations as follows:
“ This guideline in the Benchbook fails to recognise that the Queen’s Birthday public holiday was observed by all States on Monday 9 June 2014, with the exception of the West Australian registry, as that State celebrates that public holiday in the month of September. Nevertheless, the Benchbook provides that if other Commission offices are open they are able to accept applications electronically.
 Whilst s.36(a) of the Acts Interpretation Act 1901 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, pursuant to ss(3) of that section, the application could have been lodged in the West Australian registry.”
 The Respondent placed heavy reliance on the decision in McDonald to support the proposition that the time period in which to file the application expired on 7 October 2019.
 In reply, submissions made on behalf of Mr Boyd argued that:
“The Respondent's jurisdictional objection is founded on the faulty premise that, because the Commission had registries open in jurisdictions other than New South Wales, and was able to accept electronic filings, on Monday, 7 October 2019, that date was not a ‘holiday’ for the purposes of section 36 of the Acts Interpretation Act 1901 (Cth) (the ‘Al Act’) and, therefore, the time for making the Application was not extended to 8 October 2019.
The Respondent's fundamental premise in turn relies upon a construction of the definition of ‘holiday’ in section 36(3)(b) of the Al Act as currently in force. Section 36 of the Al Act was repealed and substituted with the current form of the section by the Acts Interpretation Amendment Act 2011 (Cth). Pursuant to section 40A(2) of the Fair Work Act 2009 (Cth) (the ‘FW Act’), amendments of the Al Act made after 25 June 2009 do not apply to the FW Act. Rather, the Al Act as in force on 25 June 2009 applies to the FW Act.
Accordingly, the Respondent's objection is founded on a definition of ‘holiday’ that does not apply to the construction of section 394(2)(a) of the FW Act. Further, the decision in McDonald v Foam/and  FWC 5607, cited by the Respondent, also relies upon the wrong version of section 36 of the Al Act. Accordingly, that decision should not be followed.
The AI Act, as in force on 25 June 2009, relevantly provides as follows:
‘36(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.’
Therefore, the correct question for present purposes is whether Monday, 7 October 2019 was a ‘public holiday ... in the place in which [lodging the Application] is to be or may be done’ [emphasis added].
In Springfield v Hegele Logistics Australia Pty Limited  FWC 3524, the Commissioner, referring to the correct version of section 36 of the Al Act, held (at ) that a State public holiday (being Labour Day in Queensland) was a ''public holiday" for the purposes of section 36(2) of the Al Act as in force on 25 June 2009, notwithstanding that it was not a public holiday in some other States or Territories and notwithstanding that the Commission accepted electronic filing by email on that day.
In Springfield v Hegele Logistics, the Commissioner also addressed the status of the Unfair Dismissals Benchbook in the following terms at :
‘... I also note that the Benchbooks are provided for advice of parties as a general guide 'only, that it is not intended to be an authority to be used in support of a case at hearing and further that the commentary contained therein is not binding upon me ...’
The Applicant respectfully submits that the decision in Springfield v Hegele Logistics is correct and should be followed.
In Elan Copra Trading Pty Limited v JK International Pty Limited  SASC 501 (Full Court of the Supreme Court of South Australia), the question addressed at  was whether section 36(2) of the Al Act operated to extend the time for service of an application to set aside a statutory demand under the Corporations Act when the last day of the period was not a public holiday in the place where the application was to be served, but was a public holiday in another State. White JA said at :
‘[Section 36(2)] is a safeguard against a person being impeded from carrying out a required act within time by reason of the last day for the doing of that act being a day when premises may not be open to business. There is no reason to construe section 36(2) as permitting an extra day or days in one place where that impediment does not exist merely because in another place the impediment would or may have existed. Such a construction may produce results which are quite uncertain depending upon the extent of the places at which the act could be carried out. In my opinion, section 36(2) should be construed as though the last clause read “the thing may be done in that place on the first day following which is not a Saturday, a Sunday or public holiday or bank holiday in that place”.’ [first emphasis in original, second emphasis added].
In the present case there was such an impediment to the lodging of the Application on 7 October 2019 in New South Wales (‘that place’) in that both the Commission's registry and the business premises of the Respondent's legal representative were closed for the day because of the public holiday. The construction proposed by the Respondent required, in effect, the Applicant to be cognisant of the laws of every State and Territory relating to public holidays to know whether the Commission may have a registry open in another place, and therefore introduces the very uncertainty which White JA considered section 36(2) was intended to avoid.
Further, section 36(2) deliberately refers to the place at which the thing may be done, not a place or any place. This is reflected in the construction adopted in the Springfield and Elan Copra decisions. Conversely, the Respondent's proposed construction (if it was to be applied to the correct version of section 36 of the Al Act) would have the effect of substituting the word ‘any’ for the definite article in section 36(2). There is no basis for such a construction in the language or purpose of section 36(2).
Monday, 7 October 2019 was plainly a public holiday in the place where the Applicant sought to lodge the Application and did in fact lodge the Application. Therefore, section 36(2) of the Al Act, as in force on 25 June 2009, operated through section 40A(1) of the FW Act to extend the time for making the Application under section 394(2)(a) of the FW Act to 8 October 2019.
In any event, the construction of section 36(3)(b) of the Al Act (if that version of section 36 applied) contended for in the Respondent's submissions, is wrong.
Fundamentally, sub-paragraphs (a) and (b) of section 36(3) are to be read disjunctively
(Onebev Pty Limited v Encore Beverages Pty Limited (2016) 309 FLR 289 at ). That is to say, paragraph (b) does not qualify or limit the definition of ‘holiday’ in paragraph (a). Rather, paragraph (b) extends the definition in circumstances where paragraph (a) does not apply.
In the present case, for the reasons set out above, section 36(3)(a) would apply (but for section 40A(2) of the FW Act) because Monday, 7 October 2019 was a public holiday in New South Wales, being the place where the Applicant sought to lodge the Application and did in fact lodge the Application.
Even if section 36(3)(b) was applicable, it would not matter that the application was able to be filed electronically or filed in a place other than the New South Wales registry of the Commission because the word ‘particular’ refers to a place where the application may be filed, not all places where it may be filed (see Onebev Pty Limited v Encore Beverages Pty Limited at  to ).
Therefore, on any proper view, the Application was filed within time”.
 I consider that the interpretation put by Mr Boyd’s lawyers is correct, and so I find that the application was made within time, and no extension of time is necessary.
 I agree with Commissioner Platt in Springfield that a public holiday that has application across a state is a public holiday in the place (in this case, NSW) in which the thing (the lodgement of this application) is to be or may be done.
 To the extent that the Respondent relied on the Commission’s Unfair Dismissal Benchbook as authority, I further agree with the Commissioner that the Benchbooks are provided as a general guide only and are not binding on me.
 In this case, Monday 7 October 2019 was a public holiday in NSW. The NSW registry of the Commission was closed, as was the office of Mr Boyd’s lawyers. The Respondent’s premises, where Mr Boyd was based, was located in Crows Nest, NSW. In this case there is no connection with any other state or territory other than NSW, and accordingly there was no requirement for Mr Boyd’s lawyers to check whether a Commission registry in another state or territory was open in order to lodge an application within time.
 It is clear that the Deputy President in McDonald was in error in that she relied on the current version of the AI Act, rather than what was in force on 25 June 2009. Accordingly, I decline to follow that decision.
 In coming to this conclusion, I have also relied on the decision in Elan Copra, referred to by Mr Boyd’s lawyers, which is referred to earlier.
 For the above reasons, I am satisfied and find that Mr Boyd’s application was made within time and therefore dismiss the Respondent’s jurisdictional objection.
 Given my finding above, the matter will now be referred for conciliation.
 An order to that effect is issued with this Decision.
A Loel of Toomey Pegg Lawyers for Alastair Boyd.
M Xu of Clyde & Co Lawyers for MarketTrack Global Pty Ltd T/A Numerator.
Sydney (By telephone):
Printed by authority of the Commonwealth Government Printer
1  FWC 5607.