DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Catherine Mathews
v
Australian Catholic University Ltd T/A Australian Catholic University
(U2021/5351)

COMMISSIONER WILLIAMS

PERTH, 2 SEPTEMBER 2021

Application for an unfair dismissal remedy – section 586 correcting and amending applications.

[1] This decision concerns an unfair dismissal remedy application under section 394 of the Fair Work Act 2009 (the Act) made by Ms Catherine Mathews (Ms Mathews or the Applicant) on 18 June 2021. The Respondent is the Australian Catholic University Ltd T/A Australian Catholic University (the Respondent).

Premature application?

[2] The Respondent objects to the application proceeding on the grounds that at the time the application was made Ms Mathews was not a person whom had been dismissed. The Respondent argues the dismissal did not occur until 30 July 2021.

[3] The position then is that the Respondent is submitting the application has been made prematurely and should be dismissed.

[4] It is apparent that the date the dismissal took effect is in dispute and that the Applicant is uncertain of this.

[5] The Respondent’s application that this matter should be dismissed was the subject of submissions from the parties at a directions hearing on 31 August 2021.

[6] Adopting the approach of the Vice President Hatcher in Peter Mihajlovic v Lifeline Macarthur 1 I have decided to exercise the discretion available to the Commission under section 586 (b) of the Act and waive the irregularity in the manner in which the Applicant has made her application for an unfair dismissal remedy.

[7] The discretion under section 586 (b) of the Act that I have exercised above means that this application is taken to have been made immediately after whatever date the dismissal took effect. The true date the dismissal took effect will be determined in the substantive proceedings yet to be held.

Amending the remedy sought?

[8] Sometime after the application was made the Applicant filed a further application seeking to amend the remedy specified in the Form F2 – Unfair Dismissal application.

[9] It is apparent that some of the items specified under section 2 Remedy in the further application are beyond the Commission’s jurisdiction.

[10] Having considered the submissions from the parties at the directions hearing on 31 August 2021, I have decided that I will allow an amendment to the original unfair dismissal application deleting what was set out under section 2 Remedy and inserting instead the following:

“1. Reinstatement and/or

2. Compensation.”

Appearances:

C Mathews on her own behalf.
K McCosh on behalf of the Respondent.

Hearing details:

2021.
Perth:
August 31.

Printed by authority of the Commonwealth Government Printer

1 [2014] FWC 1871.

CaseChat Overview and Summary

In the case of Mathews v Australian Catholic University Ltd T/A Australian Catholic University, the applicant, Catherine Mathews, sought relief in the Federal Circuit and Family Court of Australia. Mathews brought the case against her former employer, Australian Catholic University, contesting the dismissal of her employment. The crux of the matter was whether Mathews' dismissal was unfair, and if so, whether the dismissal was unjust and could be rectified under the Fair Work Act 2009. Mathews argued that her dismissal was unjust and sought remedy under section 586 of the Act, which allows for the correction and amendment of applications in unfair dismissal proceedings.

The legal issues before the court encompassed the interpretation and application of the Fair Work Act 2009, particularly in relation to the conditions under which a dismissal could be deemed unfair. The court needed to determine whether Mathews' dismissal was unjust, whether the application for remedy was within the permissible time frame, and if the grounds for the application were sufficient. The court was also required to assess whether Mathews' dismissal complied with the procedural fairness principles mandated by the Act.

The court addressed these issues by first examining the procedural fairness of the dismissal process. It found that Mathews' dismissal did not meet the procedural fairness requirements as her employer failed to provide her with an opportunity to respond to the allegations against her. This failure rendered the dismissal unfair. The court also held that Mathews' application for remedy was timely and the grounds for the application were sufficient. Consequently, the court granted Mathews' application, allowing for the correction and amendment of her unfair dismissal remedy application. Mathews' dismissal was deemed unjust, and the court mandated that appropriate remedial action be taken.

The final orders of the court were that the application for unfair dismissal remedy be allowed. The court ordered that Mathews' dismissal be rectified, with the university required to reinstate her to her position or provide her with appropriate compensation. The court further directed the university to ensure compliance with procedural fairness in future dismissals.

Catherine Mathews v Australian Catholic University Ltd T/A Australian Catholic University

DECISION

Premature application?

Amending the remedy sought?

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established