Fair Work Commission

Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Dean DP, 16 December 2019).

In this matter, the 21 day period prescribed by s.394(2) of the Fair Work Act for the applicant 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. The application was filed by the applicant’s representative the following day on 8 October 2019.

Commission staff contacted the applicant’s representative regarding the receipt of the application outside of the 21 day period, who submitted that the application was lodged within the 21 day legislated timeframe pursuant to s.36(2) of the Acts Interpretation Act 1901 (Cth) (the AI Act) as in force on 25 June 2009. Section 36(2) of the AI Act provides that ‘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.’

The applicant’s representative submitted that as Monday, 7 October 2019 was a public holiday in New South Wales, the next business day after 7 October 2019 was Tuesday, 8 October 2019 and accordingly, the time for lodging the application was extended to 8 October 2019, and the application was therefore lodged within that time.

The respondent objected on the basis that 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. The respondent submitted that as the application was lodged electronically by the applicant’s representative on 8 October 2019, there was nothing to suggest it could not have been lodged electronically on 7 October 2019.

The Commission found that the application was made within time, and no extension of time was necessary. Monday 7 October 2019 was a public holiday in NSW. The NSW registry of the Commission was closed, as was the office of the applicant’s representative. The respondent’s premises, where the applicant was based, was located in Crows Nest, NSW. The Commission held that in this case there was no connection with any other state or territory other than NSW, and accordingly there was no requirement for the applicant’s representative to check whether a Commission registry in another state or territory was open in order to lodge an application within time.