[2014] FWCFB 1070

The attached document replaces the document previously issued with the above code on 5 March 2014.

The citation in endnote 16 on page 15 is corrected to DP World Sydney Limited v Mr Stephen Lambley [2013] FWCFB 9230

David Mitchell

Associate to Justice Ross

Dated 5 March 2014

[2014] FWCFB 1070



Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Peter Mihajlovic
Lifeline Macarthur



Application for relief from unfair dismissal - jurisdictional objection - whether application invalid due to prematurity


[1] 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). The respondent to the application, Lifeline Macarthur, objected to the application on a number of jurisdictional grounds. One of the grounds of the objection was that the application was filed outside the 21-day time limit prescribed by s.394(2)(a) of the Act, and that there were no grounds for an extension of time to be allowed under s.394(3). The foundation for the respondent’s jurisdictional objection in this respect was that the date upon which Mr Mihajlovic’s dismissal took effect was 7 June 2013.

[2] This jurisdictional objection was rejected by the Commission (Hatcher VP) in a decision issued on 16 December 2013 (Decision). 1 In the Decision, the Commission found that Mr Mihajlovic’s dismissal had in fact taken effect on 5 September 2013, having been given three months’ notice of his dismissal on 7 June 2013. However, this finding was then considered to give rise to further jurisdictional issues, which were identified in the Decision in the following terms:

[3] The Commission directed that further submissions be filed by the parties by 23 December 2013, in respect of the questions of law identified. Each party lodged submissions in accordance with this direction.

[4] On 9 January 2014, the President of the Commission ordered pursuant to ss.582 and 615 of the Act that the jurisdictional issue identified in the Decision be referred to a Full Bench for determination. On 13 January 2014, this Full Bench issued directions for the determination of the matter, in which it invited the Commonwealth and the Peak Industry Councils (ACCI, Ai Group and the ACTU) to file submissions in relation to the matter, and gave the parties an opportunity to reply to any such submissions. The Full Bench’s directions identified some further matters which it considered to be relevant to the two questions of law identified in paragraph [16] of the Decision as follows:

[5] Only the ACTU filed a submission in response to the Full Bench’s invitation to the Commonwealth and Peak Industry Councils for submissions. The parties each filed a submission in response to the ACTU’s submission.


[6] Mr Mihajlovic submitted that s.394(2) establishes a time limit after which applications could not be made, but not one before which applications could be made. It is submitted that there was no policy reason why a person dismissed on notice could not apply before the dismissal took effect, which explained why that situation was not addressed specifically in the Act. The application was therefore not premature; it would only be premature if no “dismissal attempt” had yet been made. In the alternative, the applicant submitted that if the application was filed prematurely, this could be rectified under s.586.

[7] The respondent, Lifeline Macarthur, submitted that ss.394 and 386 of the Act, properly construed, establish a requirement that a person must actually have been dismissed, with that dismissal having taken effect, before any application for an unfair dismissal remedy could be lodged. Absent that requirement being satisfied, the Commission had no jurisdiction to accept the application, and consequently Mr Mihajlovic’s application was invalid. Section 586 of the Act did not provide power to remedy the prematurity of the application, since it was concerned with merely procedural and not jurisdictional defects.

[8] The ACTU submissions were to similar effect as those of the respondent. The ACTU submitted that s.394(2) established an anterior as well as a posterior time limitation on the filing of applications for an unfair dismissal remedy, with the anterior limit preventing the filing of applications prior to a dismissal taking effect. It further submitted that the power in s.586 of the Act was not available to correct the position, because it was “administrative only and cannot be used to regularise or retrospectively cure a fundamental defect in the application”.


Meaning of “Dismissal

[9] Part 3-2 of the Act contains the scheme of provisions dealing with unfair dismissal. Division 5 of Part 3-2 is titled “Procedural matters”. Section 394 is the first provision falling within Division 5, and provides:

[10] It is apparent that subsection (1) of s.394 establishes as the basic qualifying criterion for the making of an application that the applicant has to be “a person who has been dismissed”. Section 386(1) guides the interpretation of s.394(1) by defining the circumstances in which a person can be said under the Act to have been dismissed in the following terms:

[11] Section 386(1) is subject to exceptions in subsections (2) and (3) which are not presently relevant.

[12] Only paragraph (a) of s.394(1) is relevant to our consideration in this case. The meaning of the expression “termination at the initiative of the employer” in the context of the termination of employment provisions in Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) was considered by a Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 2. The explanatory memorandum for the Fair Work Bill 2009 stated in respect of clause 394 of the Bill that cl.386(1)(a) was “intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200)”.

[13] The expression “termination at the initiative of the employer” did not actually appear in Division 3 of Part VIA of the Industrial Relations Act 1988; s.170EA only referred to the termination of the employee’s employment. However, s.170CA(1) stated that the object of the Division was to give effect, inter alia, to the international Termination of Employment Convention, and in that convention termination of employment was defined as meaning “termination at the initiative of the employer”. It was in that context that the Full Court in Mohazab discussed the meaning of that expression. After referring to dictionary definitions of the word “initiative”, the Full Court said 3:

[14] It is clear that the Full Court, following Siagian v Sanel 4, regarded termination of employment as referring to the actual termination of the employment relationship, so that a “termination at the initiative of the employer” was taken as referring to a situation where the employment relationship had terminated and the action of the employer was the principal contributing factor in bringing that about. Although Mohazab was not directly concerned with the identification of the point in time at which a termination at the initiative of the employer had occurred, the reasoning of the Full Court quoted above contains the necessary proposition that the employment relationship must have come to an end.

[15] That position is confirmed by an analysis of the judgment of the Industrial Relations Court (Wilcox CJ) in Siagian v Sanel. In that case, the applicant’s capacity to access the termination of employment provisions of the Industrial Relations Act 1988 depended upon the date upon which the applicant’s employment was terminated. Division 3 of Part VIA, under which relief was sought, had commenced on 30 March 1994; the applicant had been told by his employer on 29 March 1994 that his employment was terminated and was paid an amount representing salary up until 15 April 1994. After determining that it was the date of the termination of the employment relationship rather than the date of the termination of the employment contract that was the relevant date, the Court then considered an argument put by counsel for the applicant that the payment of salary to the applicant meant that the employment extended to 15 April 1994. The Court framed the question to be determined in the following way 5:

[16] The above passage makes it clear that, under the Industrial Relations Act 1988 a termination of employment, being a termination at the initiative of the employer, occurred at the time that the employment relationship came to an end and, in the case of an employee who had been dismissed on notice, the termination of the employment relationship and therefore the termination at the initiative of the employer occurred when the notice period expired.

[17] Having regard to the obvious provenance in the language used in s.386(1)(a) of the Act in the termination of employment provisions of the Industrial Relations Act 1988 and their interpretation in decisions such as Mohazab and Siagian, we consider that the same approach should be adopted as in those two cases, namely that a person’s “employment with his or her employer has been terminated on the employer’s initiative” when the person’s employment relationship with the employer has ended, and that where the employee has been terminated on notice, the employment relationship ends when the notice period expires. Because s.386(1) defines when a person has been dismissed for the purpose of s.394(1), the same propositions apply to the meaning of the expression “A person who has been dismissed” in s.394(1). Section 394(1) therefore requires a person’s employment to have terminated in order for that person to make an application for an unfair dismissal remedy.

Period in which Application is to be made

[18] Section 394(2) is to be interpreted in the context that a person’s employment must have been terminated in order to make an application for an unfair dismissal remedy.

[19] Section 394(2)(a) should not be read as itself establishing an anterior time limitation for the filing of an application for an unfair dismissal remedy; rather, it operates on the premise that s.394(1) requires that a person who may file such an application is a person whose employment has come to end at the initiative of the employer. On that premise, s.394(2)(a) requires that the application is to be filed “within” - that is, inside the limit of - 21 days after the “dismissal took effect”. The use of this latter expression in s.394(2)(a) only is potentially confusing, in that it invites the proposition that the date of a dismissal and the date it takes effect may be two different things. However, having regard to our earlier analysis above, we do not consider that the expression refers to anything other than the time at which the applicant’s employment relationship came to an end.

[20] Section 394(2)(b) confers a power on the Commission to extend the time for the filing of an application beyond the 21-day time limit prescribed by s.394(2)(a) in accordance with s.394(3). Section 394(3) requires that such an extension of time may only be allowed if the Commission is satisfied that there are “exceptional circumstances” taking into account six specified matters. The specific nature of this power and the highly prescriptive terms upon which it is conferred strongly indicate that s.394(2)(b) is the only power to extend the time for the filing of an unfair dismissal application and that it is not open to the Commission to extend time to lodge an unfair dismissal application by use of any general power it may otherwise possess under the Act. 6 We return to this point later.

[21] The conclusion in the Decision that Mr Mihajlovic’s employment relationship with the respondent terminated upon the expiry of his notice period on 5 September 2013 means that his application, filed as it was on 5 August 2013, was not made in accordance with the Act because the condition for the making of such an application specified in s.394(1) was not at that time yet satisfied. However, that is not the end of the matter, because it remains necessary to determine whether, in light of the fact that there is now no doubt that Mr Mihajlovic is a “person who has been dismissed”, the prematurity in the lodgement of Mr Mihajlovic’s application has the consequence that it is invalid and a nullity, or merely subject to a defect or irregularity which is capable of being cured by the use of the Commission’s general powers.

Power to Correct Application not filed in accordance with the Act

[22] The starting point for this consideration is the proposition that not all failures to comply with a statutory pre-condition result in invalidity. In the NSW Court of Appeal decision in Woods v Bate 7 McHugh JA (as his Honour then was, and with whom Hope JA agreed) said, in the context of consideration of the consequence of a failure to comply with a statutory requirement as to time8:

[23] The categorisation of statutory requirements as being either mandatory or directory was rejected by the High Court in Project Blue Sky v Australian Broadcasting Authority 9 in favour of an approach whereby the validity of any act done in breach of a statutory condition “depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition”.10 With that qualification, the approach taken by McHugh JA in Woods v Bate may be accepted as correct and applicable. For example, it was cited with approval by Kirby J in Emanuele v Australian Securities Commission11. In that case, the respondent had made an application to the Federal Court seeking to wind up an insolvent company. Under s.459P(2) of the then Corporations Law, leave of the court was required before such an application could be made. The respondent made its application without ever having sought or obtained such leave, and was successful in obtaining the winding up order that it sought. When this order was appealed to the Full Court of the Federal Court, the Court noted the failure to comply with s.459P(2), and made an order granting such leave nunc pro tunc (meaning ‘now for then’). The appeal to the High Court concerned the validity of this order. The majority (Dawson, Toohey and Kirby JJ) concluded that the order was properly made. The following passage from the judgment of Dawson J is instructive:

[24] Having regard to the above principles, we will consider whether the relevant provisions disclose a statutory intention to invalidate any application such as Mr Mihajlovic’s which at the time of filing did not comply with the condition for the making of an application in s.394(1).

[25] The objects of an Act and the legislative context are relevant to any consideration of the proper interpretation of a particular provision in an Act. 12 A section must be read in context by reference to the language of the Act as a whole.13 As Dixon CJ said in Commissioner for Railways (NSW) v Agalianos14:

[26] His Honour’s observation was cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority. 15

[27] Firstly, the object of Part 3-2 of the Act is set out in s.381(1) as follows:

[28] The reference in the object to unfair dismissal procedures being “quick”, and the emphasis on reinstatement as the primary remedy 16, tend to explain the 21-day time limit in s.394(2)(a) and the restricted circumstances in which any extension of time may be granted under s.394(3), but they do not suggest any legislative purpose to invalidate an application lodged prematurely in respect of a dismissal on notice.

[29] Section 390(1) identifies the circumstances in which the Commission is empowered to make a reinstatement or compensation order. It provides:

[30] The expression “unfairly dismissed” in s.390(1)(b) is defined in s.385 as follows:

[31] The requirement in paragraph (a) that “the person has been dismissed” imports the definition of that expression in s.386(1) to which we have earlier referred. By this means, the exercise of the Commission’s jurisdiction to grant an unfair dismissal remedy is conditioned by the requirement that the person’s employment relationship with the employer has to have terminated either at the employer’s initiative or as a result of a forced resignation. That is of course a condition which must be satisfied at the time the Commission makes its decision.

[32] Section 390(2) then provides:

[33] On one view, s.390(2) may be said to erect as a jurisdictional requirement for the granting of an unfair dismissal remedy that an application has been made in accordance with s.394(1). However, we do not consider that that is the correct view. Section 390(2) does not say that the application needs to have been made in accordance with s.394, but only under s.394 (and is to be contrasted in that respect to s.587(1)(a), to which we will shortly turn, which refers to applications not made in accordance with the Act). In that connection, the purpose of the provision is, we think, to make it clear that the Commission cannot grant an unfair dismissal remedy on its own initiative but may only do so upon application; in this respect, the provision is to be contrasted with a range of provisions under the Act in which the Commission is conferred with power to act on its own initiative as well as upon application; see, for example, ss.157, 159, 160, 418, 419, 423, 424, 505, 508. It would be superfluous for the provision to be read as having the purpose of establishing a jurisdictional requirement that the person must have been dismissed in accordance with the definition in s.386, because as already explained that jurisdictional prerequisite is already established by s.390(1)(b) read with s.385(a) and s.386.

[34] There are a number of provisions concerning the general procedural powers of the Commission which are relevant and contained in Subdivision A, titled “Applications to the FWC”, of Division 3 of Part 5-1 of the Act. Section 586 and 587 provide:

[35] There is a long history in predecessor statutes to the Act of provisions which are equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to “allow the amendment, on such terms as it thinks fit, of any proceedings” and to “correct, amend or waive any error, defect or irregularity, whether in substance or in form”. In Re Coldham; Ex parte BLF 17 the High Court gave these provisions, together with the power to “extend any prescribed time” in s.41(1)(m), a wide field of operation so as to give effect to the statutory intention that proceedings before the Commission be directed to the merits and that technicalities and legal forms should not be regarded. These provisions were reproduced in s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work Choices manifestation of the Workplace Relations Act removed the general power to extend time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects or irregularities was used in a wide variety of circumstances as to both procedural and substantive matters: see, for example, Re Union of Christmas Island Workers18; Re The Association of Professional Engineers, Scientists and Managers, Australia19; Re Perth Bus Certified Agreement20; Caruana v STA Pty Ltd21; Boom Logistics/Employee Naval Base Industrial Agreement 2004/200522 and CPSU v Port Adelaide Training and Development Centre Incorporated t/as PATDC Employment and Training23.

[36] Section 586(b) may be narrower than the previous provisions referred to, in that the waiver power is confined to matters of “form or manner” rather than “substance or ... form”. There is surprisingly little authority, outside the State constitutional context, as to what types of matters are encompassed by “form or manner” or like expressions such as “manner and form”. However, in O’Connor v Kinniburgh 24 the New Zealand Supreme Court held that a statutory power to make regulations concerning the “form and manner” in which a thing is to be done may include requirements as to when the thing may be done.

[37] In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations Commission of South Australia observed that provisions of the same type as s.586(b) are “directed towards ameliorating the effect of a variance or failure to comply with a procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects”. 25

[38] Under s.587(1)(a), the Commission “may” dismiss an application that “is not made in accordance with this Act”. Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

[39] Section 40A of the Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987 26, and therefore applies to the Act. Under s.2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention. We do not consider, taking into account that the Explanatory Memorandum refers to cl.587 “allowing” the dismissal of applications, that s.587(1) falls into that unusual category of statutory provisions where “may” is to be read as “must”. The provision was characterised as discretionary in nature by the Full Bench in Viavattene v Health Care Australia27. If, as we conclude that it does, s.587(1) confers a discretionary power, then under paragraph (a) it is open for the Commission not to dismiss an application not made in accordance with the Act. That discretion must of course be exercised bona fide having regard to the policy and purpose of the Act.28

[40] Finally, we refer to s.577(b) of the Act, which requires the Commission to perform its functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary technicalities”, and s.578(b), which requires the Commission in performing functions or exercising powers to take into account “equity, good conscience and the merits of the matter”.

[41] The objects of Part 3-2 of the Act are also relevant, particularly the establishment of procedures for dealing with unfair dismissal that are “flexible and informal” (s.381(1)(b)(i)). These provisions are not in themselves a source of power 29, but they guide the Commission in the exercise of its powers.

[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).

[43] We emphasise that the conclusions we have stated do not operate in relation to an application sought to be filed after the time limit prescribed in s.394(2)(a). As earlier stated, the highly specific and prescriptive nature of the requirements in s.394(3) applicable to the grant of an extension of time beyond the 21-day limit means that the operation of any general procedural power in that area is excluded. That this is the case is demonstrated by the Full Bench decision in ABC Transport Pty Ltd, in which it was held that an application lodged after the 21-day limit in respect of which no extension of time has been allowed under s.394(3) has not been “made” at all. 30 It follows that s.587(1)(a) could not have any application in that circumstance. The lack of any provision of the nature of s.394(3) applicable to an application filed prematurely demonstrates that in that circumstance the Commission’s general procedural powers are available. We note however that whether such powers are exercised in a particular case will depend on a consideration of all the circumstances and it should not be assumed that the waiver of an irregularity will be automatic. The general self evident proposition is that unfair dismissal applications are to be made within the prescribed 21-day period after a dismissal takes effect.

[44] This matter will be remitted to Vice President Hatcher 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.


Hearing details:

Heard via written submissions

Final written submissions:

January 31, 2014

 1   [2013] FWC 9804

 2   (1995) 62 IR 200

 3   Ibid at 205-6

 4   (1994) 122 ALR 333

 5   Ibid at 352

 6   Applying the principle of statutory interpretation stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1

 7   (1986) 7 NSWLR 560

 8   Ibid at 567, footnotes omitted.

 9   (1998) 194 CLR 355

 10   Ibid at 388-389 [91]-[93] per McHugh, Gummow, Kirby and Hayne JJ

 11   (1997) 188 CLR 114

 12   For example see Russo v Aiello (2003) 215 CLR 643 at 645 per Gleeson CJ. Also see s.15AA of the Acts Interpretation Act 1901 (Cth) and s.40A of the Fair Work Act 2009 (Cth).

 13   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69].

 14   (1955) 92 CLR 390 at p397.

 15   (1998) 194 CLR 355 at p381.

 16   See DP World Sydney Limited v Mr Stephen Lambley [2013] FWCFB 9230 per Lawler VP at [136]-[138].

 17   (1985) 64 ALR 215

 18   Print M6777 [1995] AIRC 2622

 19   Print P1442 [1997] AIRC 485

 20   Print T2638 [2000] AIRC 488

 21   PR903156 [2001] AIRC 320

 22   PR951366 [2004] AIRC 838

 23   PR964828 [2005] AIRC 968

 24   [1940] NZLR 296

 25   (1996) 65 IR 178 at 181, quoted with approval by a Full Bench of this Commission in Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [11]-[12].

 26   By virtue of the Statute Law (Miscellaneous Provisions) Act 1987

 27   [2013] FWCFB 2532 at [40]

 28   Bowling v General Motors - Holden’s Pty Ltd (1980) 50 FLR 79 at 91

 29   Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [13]

 30   [2012] FWAFB 3212 at [11]

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