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Fair Work Law – Extension of time (reckoning of time)

[2010] FWA 7908 SA Burgoyne v Festival City Wine & Spirits P/L (“the 14-day period is exclusive of the day of … the dismissal” @18 – A at first decided not to contest dismissal, and R was aware full bio here of this, as there had been discussions with A about it – A sought alternative employment – however, A soon sort legal advice – some delay with legal advice – A acted promptly after receiving advice – application one day late – A may have some difficulty on the merits – extension granted)

[2010] FWA 9622 Vic TWU v Veolia Environmental Services Australia P/L (“The pay period indicated on a system generated pay slip along with the pay date is no indication of the date of termination of employment” @13)

[2013] FWC 784 NSW Pummeroy v Grafton Electrical (the use of the word ‘after’ in the expression ‘within 14 days after’ excludes the day of dismissal)

[2013] FWC 2564 NSW Cameron v Metecno (“if an applicant was dismissed at 9am on a day and made an application pursuant to s394 of the Act at 12 noon on the same day I am not convinced that it would be unlawful. Since the applicant in this case received notification of his dismissal late on 7 February and his application was received by the Commission registry in Hobart in the morning mail on 7 February the principle followed by DP Smith in Truong is apposite – the applicant was still employed when he made his application and thus his application was not in accordance with the Act. This is the basis upon which I have decided it was premature” @33 – A made a second application that was 20 days late – R did not object to extension of time – circumstances exceptional – see [2013] FWC 1999 at para 251 where application that was made on day of dismissal accepted)

[2013] FWC 9622 SA Dutton v Dutton Group (the 21-day period for the purposes of s394 of the Act does not commence until the day after the dismissal takes effect” @19)

[2014] FWC 3637 Vic Renfrey v Spotless Group (the time of filing the application may not be taken as the time the application was posted)

[2014] FWC 6076 Vic Finlayson v Western Health (“While it is agreed that the day of dismissal is not included in the 21 days, the 21 day period does begin to be counted from that date. There is no contest about the fact that Mr Finlayson was dismissed by Western Health on 7 July. Therefore, the 21 day period begins to run from that date, and ‘day 1’ is then the day after that date, being 8 July, and ‘day 21’ is 28 July. As the application was filed on 29 July it was therefore filed one day after the requisite 21 day period” @15-16)

[2014] FWC 7178 Vic Cruz v Scott’s Transport Industries (“the administration of Ms Cruz’s termination was poorly handled in that the circumstances were not properly communicated to the pay office. As a result Ms Cruz received two employment related payments after her last day at work. There was also some confusion in the submissions made in the proceedings by Scott’s about when, in fact, she last worked … [A’s] last day at work was 29 July. Ms Cruz also indicated she was told to ‘just take your stuff’ on that day, and appeared to understand she was no longer required to attend at work after this time” @27-28 – dismissal therefore occurred on that day and not at the later time when she received a later payment in lieu of notice on 9/8/14 – A had received legal advice that she had until 29/8/14 to lodge claim, which is when she lodged it – A therefore “had a reasonable belief her final date of termination was 9 August 2014, even if that belief was ultimately wrong at law” @44 – A’s application has merit re whether the procedural requirements of a genuine redundancy had been met – exceptional circumstances found)

Full Bench decisions

[2011] FWAFB 6008 Vic Dundas-Taylor v The Cuisine Group (exceptional circumstances found where there was “ambiguity associated with the date of Mr Dundas-Taylor’s dismissal, Mr Dundas-Taylor’s lodging of his first unfair dismissal remedy application within 14 days of the dismissal and his discontinuance of that first application following advice from FWA” @43)

Email David at kiddlrs@optusnet.com.au if interested in a trial of this easy to use and comprehensive Fair Work publication. See more at www.kiddslaw.com