[2013] FWC 9804



Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Peter Mihajlovic
Lifeline Macarthur



Jurisdictional objection - Whether application lodged out of time.

[1] Mr Mihajlovic was previously employed by Lifeline Macarthur (LLM). During that employment, on 5 June 2013, LLM sent him a letter (dismissal notice) which included the following:

[2] Mr 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). On 6 September 2013, LLM filed its response to Mr Mihajlovic’s application. In that response, it specified a number of jurisdictional objections. One of those objections was that the date of Mr Mihajlovic’s termination was 7 June 2013, that the application was lodged outside the 21-day time limit prescribed by s.394(2)(a), and that there were no exceptional circumstances justifying the grant of an extension of time under s.394(2)(b). This decision is concerned only with that jurisdictional objection.

[3] Section 394, in which the time period in which unfair dismissal remedy applications must be filed is identified, provides:

[4] “Dismissal”, as used in s.394(2)(a), refers to the termination of the employment relationship (where no issue of resignation is involved). 1 The date of the termination of the employment relationship is not necessarily co-terminous with the date of the termination of the employment contract.2

[5] The initial question which must be answered in respect of LLM’s jurisdictional objection is whether Mr Mihajlovic’s application was actually lodged after the prescribed 21-day time period. This requires identification of the date upon which Mr Mihajlovic’s termination of employment took effect. The dismissal was brought about by the dismissal notice of 5 June 2013, so the answer to this question depends on the proper interpretation of the dismissal notice.

[6] Because a notice of termination of employment usually involves the exercise (or purported exercise) of rights under the contract of employment, the terms of the contract of employment relevant to termination may be a significant contextual consideration in the interpretation of such a notice. The termination provision in Mr Mihajlovic’s contract of employment (which was constituted by a letter from LLM addressed to him and dated 7 November 2008 and countersigned by him on 12 November 2008) provided inter alia:

[7] I consider that, where misconduct was not involved, the above provision of the contract permitted termination in two ways: firstly, by the provision of three months’ notice, and, secondly, summarily upon the payment of three months’ wages in lieu of notice. Under the first option, it would have been permissible for LLM to not require Mr Mihajlovic to attend for work during the three month period and simply to pay him his wages for that period. 3 There is no reason why, in that scenario, the salary could not have been paid in advance as a lump sum.

[8] The date of termination of employment would be different depending upon which of these two contractual options LLM was exercising in the dismissal notice. Under the first option, the employment would terminate upon the expiry of the three months’ notice period - that is, on 5 September 2013. Under the second, it would terminate forthwith. This is consistent with the approach taken by the Industrial Relations Court of Australia (Wilcox CJ) in Siagian v Sanel Pty Ltd 4. In that case, where the identification of the date of the applicant’s dismissal was critical to the competence of his application, the Court said5:

[9] In Siagian there was no letter of termination 6, so that the employer’s intention as to the date of termination of employment had to be inferred from what occurred. The Court described what occurred in that case as follows7:

[10] The Court went on to say:

[11] Here, however, LLM issued Mr Mihajlovic with a termination letter which made its intention quite clear. The relevant part of the dismissal notice has earlier been set out. I consider that the terms of the dismissal notice make it plain that LLM intended by that notice that Mr Mihajlovic’s employment would terminate on 5 September 2013, and that it was exercising the first of the two termination options available under the contract of employment which I have earlier described. The letter unambiguously stated that:

[12] In fact, as it turned out, Mr Mihajlovic was not paid the three months’ pay for the notice period until 28 June 2013. This is not consistent with an intention to terminate without notice on the basis of a payment in lieu of notice on 7 June 2013.

[13] I have taken into account that LLM issued an Employment Separation Certificate dated 1 July 2013 which identified the “Date employment ceased” as being “07/06/2013”. However, its conduct in doing so, some weeks after the issue of the dismissal notice on 5 June 2013, could not change the effect of that earlier notice. A notice of termination of employment, once sent, cannot unilaterally be withdrawn. 8 It follows that neither can it unilaterally be varied in a way which changes its effect. The notice takes effect in accordance with its terms, properly construed.

[14] Therefore I conclude that Mr Mihajlovic’s dismissal took effect on 5 September 2013, and not on 7 June 2013 as contended by LLM. Accordingly, to the extent that LLM’s out-of-time objection rested on that contention, it must be rejected. The question of whether an extension of time should be granted under s.394(3) does not therefore arise.

[15] Mr Mihajlovic’s application was lodged on 5 August 2013, a month before the date which I have identified as that upon which the dismissal took effect. I note from the file that on 8 August 2013 the Commission’s Registry sent Mr Mihajlovic a letter to the following effect (underlining added):

[16] The contention in the above letter that Mr Mihajlovic’s application was made prematurely and might be invalid has not been raised as a jurisdictional objection by LLM. I consider that the Registry’s letter raises two legal questions:

[17] Although the potential of this “prematurity” issue arising was identified in the hearing on the jurisdictional objection which occurred on 25 October 2013, the parties have not yet made submissions about it. I consider that the parties should have the opportunity to make such submissions in the light of these reasons for decision. I direct that the parties file written submissions on the two questions I have identified above on or before 5.00 pm on 23 December 2013. I will then consider what the next step in the disposition of this matter should be.



P. Mihajlovic on his own behalf

A. Perigo of counsel with M. Doyle, solicitor, for Lifeline Macarthur

Hearing details:



25 October.

 1   Fair Work Act 2009 s.386(1)(a)

 2   See Visscher v Giudice (2009) 239 CLR 361 at [53]

 3   See the analysis in Neil and Chin, The Modern Contract of Employment, 2012 at 11.90.

 4   (1994) 122 ALR 333

 5   Ibid at 352

 6   Ibid at 336

 7   Ibid at 352

 8   Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 458; State of New South Wales v Paige (2002) 60 NSWLR 371 at [277], [283].

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