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

[2021] FWC 5456

[2021] FWC 5456

FAIR WORK COMMISSION

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

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 1   [2014] FWC 1871.