Colm Murphy v W. Granowski Pty Ltd T/A W. Granowski Pty Ltd Surface Preparation Solutions

[2021] FWC 428

[2021] FWC 428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colm Murphy
v
W. Granowski Pty Ltd T/A W. Granowski Pty Ltd Surface Preparation Solutions
(U2021/528)

COMMISSIONER WILSON MELBOURNE, 5 FEBRUARY 2021

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - application lodged before dismissal took effect - procedural irregularity - irregularity waived

[1] Mr Colm Murphy filed an application for an unfair dismissal remedy on 21 January 2021 under s.394 of the Fair Work Act 2009 (the Act). W. Granowski Pty Ltd T/A W. Granowski Pty Ltd Surface Preparation Solutions, the Respondent, objected to the application on the basis that it has no reasonable prospects for success and has not been made in accordance withtheAct. Specifically, the Respondent argued that the Fair Work Commission (the Commission) would not be able to find that the Applicant has been unfairly dismissed in accordance with s.385 of the Act because the Applicant was still employed.

[2] I only deal with background to provide context to this application. No hearing has yet been conducted in this matter and I make no findings of fact at this time.

[3] On 13 January 2021, the Applicant was given 3 weeks’ notice of his dismissal by way of redundancy. On 19 January 2021, the Applicant was advised that he could take gardening leave for the remainder of his notice period until 3 February 2021. On 21 January 2021, the Applicant filed an unfair dismissal application in the Commission alleging that his dismissal took effect on 19 January 2021. The dismissal, however, will take effect on 3 February 2021.

[4] The objection of the Respondent gave rise to the issue of whether Mr Murphy’s application was invalid and a nullity by reason of it having been filed on a date before the dismissal took effect. The Respondent sought Mr Murphy’s application be summarily dismissed and the matter has been referred to me to determine.

Statutory framework

[5] Section 394 of the Act sets out the circumstances in which an application for an unfair dismissal remedy can be made:

“394 Application for unfair dismissal remedy

(1)  A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[6] Section 386 provides the following meaning of “dismissed”:

“s.386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[7] This procedural application is made under section 586. It provides:

“586 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.”

Consideration

[8] Mr Murphy has made an unfair dismissal application prior to his dismissal taking effect. This is a procedural irregularity.

[9] A Full Bench of the Commission has determined the issue of a premature application in Mihajlovic v Lifeline Macarthur 1 finding that although Mr Mihajlovic’s application had not been made in accordance with the Act, this was not something which rendered the application invalid, but rather was an irregularity which the Commission had the power to waive under s.586(b) of the Act. The Full Bench said:

“[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).”

[10] My Chambers wrote to parties on 27 January 2021 drawing the Respondents attention to the Full Bench decision of Mihajlovic v Lifeline Macarthur and seeking confirmation as to whether the Respondent maintained their objection.

[11] The Ai Group on behalf of the Respondent notified that they withdrew their objection to the application considering the Full Bench decision.

[12] Given the Respondent withdrew their objection, I indicated to the parties on 28 January 2021 that I was disposed to exercise my discretion under s.586 of the Act to waive the irregularity in the form or manner of Mr Murphy’s application, however in order to do so would require confirmation from Mr Murphy that he sought me to do so and advice from the Respondent that it consent to me exercising my discretion.

[13] Mr Murphy confirmed he sought for me to exercise my discretion to waive the irregularity in the form or manner of his application and the Respondent confirmed they consent to me doing so.

[14] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Murphy made his application for an unfair dismissal remedy. Accordingly, the application is validly made. The application will be referred to the unfair dismissal team to be listed for a staff conciliation in the usual course.

COMMISSIONER

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 1   [2014] FWCFB 1070.