[2014] FWC 1871

FAIR WORK COMMISSION

DECISION

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

Peter Mihajlovic
v
Lifeline Macarthur
(U2013/2607)

VICE PRESIDENT HATCHER

SYDNEY, 24 MARCH 2014

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - whether irregularity in the application should be waived.

[1] Mr Peter Mihajlovic filed an application for an unfair dismissal remedy on 5 August 2013 under s.394(1) of the Fair Work Act 2009 (the Act). Lifeline Macarthur, the respondent, objected to the application on a number of jurisdictional grounds, including that the application was filed outside the 21-day time limit in s.394(2)(a) of the Act. This objection was based on the factual proposition that Mr Mihajlovic’s dismissal had taken effect on 7 June 2013.

[2] I dealt with this objection in a decision issued on 16 December 2013 (First Decision). 1 In that decision, I found that the date of effect of Mr Mihajlovic’s dismissal was in fact 5 September 2013, on the basis that he had been given three months’ notice of his dismissal on 7 June 2013. However, this gave rise to the further issue of whether Mr Mihajlovic’s application was invalid and a nullity by reason of it having been filed on a date before the dismissal took effect. That issue was referred to a Full Bench of the Commission for consideration by the President pursuant to ss.582 and 615 of the Act.

[3] The Full Bench’s decision was issued on 5 March 2014 (Second Decision). 2 The Full Bench determined that although Mr Mihajlovic’s application had not been made in accordance with the Act, this was not something which rendered the application invalid, but rather was an irregularity which the Commission had the power to waive under s.586(b) of the Act. The Full Bench said:

“[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).”

[4] The Full Bench remitted the matter to me “to determine whether the discretion in s.586(b) should be exercised in the particular circumstances of this case and if necessary to waive the irregularity in the manner in which the application was made”. 3 I directed that the parties lodge any written submissions they wished to make about this matter by 14 March 2014. I received written submissions from both parties.

[5] The respondent submitted that because Mr Mihajlovic knew at the time that he lodged his application that his dismissal had not yet taken effect, the discretion to waive the irregularity under s.586(b) should not be exercised in his favour. It further submitted that his application concerned his dissatisfaction as to whether he had been paid his statutory entitlements, which was an issue not capable of resolution by the Commission. Although not expressly stated, I took this as a submission that waiver should not be granted because the application lacked substantive merit and was doomed to fail.

[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

[7] It is true that Mr Mihajlovic believed at the time he lodged his application that his dismissal had not yet taken effect. But for subsequent events, he could easily have discontinued it and filed a fresh application within 21 days of 5 September 2013. However, the position became confused when, in its response lodged on 6 September 2013, the respondent contended that the dismissal took effect on 7 June 2013 and that the application was out of time. That confusion was not resolved until my decision of 16 December 2013. By that time, Mr Mihajlovic was far beyond the time in which he could have filed a fresh application without obtaining an extension of time.

[8] I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.

[9] If I were to dismiss Mr Mihajlovic’s current application, he would be compelled to make an application under s.394(3) for a further period in which to file the same application a second time. Such an application would undoubtedly be opposed by the respondent, and might well not succeed given the necessity to demonstrate exceptional circumstances. Further proceedings involving effort, inconvenience and cost to both parties would be necessary, and might result in a significant injustice being done to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a perverse outcome, and that the discretion in s.586(b) should be exercised in Mr Mihajlovic’s favour.

[10] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Mihajlovic made his application for an unfair dismissal remedy. I will list the matter for a telephone directions hearing shortly to consider the further disposition of the matter.

VICE PRESIDENT

Final written submissions:

For P. Mihajlovic on 14 and 15 March 2014

For Lifeline Macarthur on 14 March 2014