DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brad Barnett
v
Madero Flooring
(U2019/13105)

Application for an unfair dismissal remedy – amendment to date of application.

[1] On 23 November 2019, Mr Brad Barnett (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] On the Form F2 unfair dismissal application, the Applicant noted that the date he was notified of the dismissal was 19 November 2019 and that the date the dismissal took effect was 27 November 2019. The Applicant also filed with the Commission a letter from Madero Flooring (Respondent) dated 19 November 2019 in which the Applicant was advised that the employment relationship had come to an end and that the notice period of employment would end on 27 November 2019.

[3] I note that on the Form F3 Employer Response, the Respondent raised the jurisdictional objections relating to the Minimum Employment Period and that the Applicant was not dismissed. These jurisdictional objections are not the subject of this decision.

[4] On 11 December 2019 the Commission emailed correspondence to the parties advising that it appeared the application had been made prior to the date the dismissal took effect. That correspondence advised that the Commission must determine whether to exercise its discretion in accordance with s.586(b) of the FW Act and Mihajlovic v Lifeline Macarthur 1 to amend the application to allow it to proceed. The correspondence directed the parties to file any material and submissions in relation to this issue.

[5] On 13 December 2019 the Applicant emailed correspondence to the Commission advising that:

•  He is unfamiliar with the unfair dismissal process and did not realise an application should be made after the date the dismissal took effect; and

•  That he had assumed he was able to make the application from the time he was notified of the dismissal, being 19 November 2019 which is the date he received a termination letter.

[6] On 18 December 2019 the Respondent emailed correspondence to the Commission providing submissions on the merits of the unfair dismissal application and their jurisdictional objections. No view was provided in relation to the Commission exercising discretion to amend the application under s.586(b) to allow the application to proceed.

[7] Section 586 of the FW Act states:

Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

[8] I have considered the views provided by the parties. I consider that there would be no prejudice caused to the Respondent in correcting the administrative error and amending the date of the application. Thus, I consider it appropriate to waive the irregularity of the application to allow it to proceed.

[9] Pursuant to s.586(b) of the FW Act, the irregularity of the premature date of application will be waived. The application will be taken to have been made on the date the dismissal took effect, being 27 November 2019. An order 2 to this effect will be issued with this decision.

[10] The application will now be forwarded for programming.

COMMISSIONER

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<PR715538>

 1   [2014] FWCFB 1070.

 2   PR715539.